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Parkcrest Builders, LLC v. Housing Authority of New Orleans

United States District Court, E.D. Louisiana

December 21, 2017

PARKCREST BUILDERS, LLC
v.
HOUSING AUTHORITY OF NEW ORLEANS

         SECTION: "J"(4)

          ORDER AND REASONS

          CARL J. BARBIER, UNITED STATE DISTRICT JUDGE.

         Before the Court is a Motion for Leave to File an Amended Witness and Exhibit List (Rec. Doc. 323) filed by Housing Authority of New Orleans (“HANO”). Parkcrest Builders, LLC (“Parkcrest”) and Liberty Mutual Insurance Co. (“Liberty Mutual”) have filed oppositions to the motion. (Rec. Docs. 340, 342.) Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.

         FACTS AND PROCEDURAL BACKGROUND

         This matter arises out of a construction contract dispute between Parkcrest, as the original contractor, and HANO, the property owner. Parkcrest contracted with HANO for the construction of the Florida Avenue: New Affordable Housing Units (“the Project”), which remains under construction. The relationship between HANO and Parkcrest deteriorated during the course of the Project and on April 10, 2015, HANO terminated Parkcrest prior to completion. HANO then called upon Liberty Mutual to perform its obligations as surety for Parkcrest. On June 9, 2015, HANO and Liberty Mutual entered into a Takeover Agreement to complete the project. Once the Takeover Agreement was executed, Liberty Mutual retained Parkcrest as its completion contractor and the parties resumed work. However, the Project continued to be plagued by delays and disagreements about their cause. On July 1, 2016, Liberty Mutual, contrary to HANO's position, considered the Project substantially complete and discontinued its insurance and security on the Project. Thus, HANO obtained its own insurance for the Project and on October 4, 2016, entered into a contract with Colmex Construction, LLC (“Colmex”) to perform all necessary work to complete the Project. On March 25, 2017, HANO granted a certificate of substantial completion to Colmex. Parkcrest, Liberty Mutual, and HANO continue to dispute who is responsible for the various delays in the construction of the Project.[1]

         On June 16, 2017, HANO filed a witness and exhibit list in compliance with this Court's Scheduling Order deadline. (Rec. Doc. 63.) On August 3, 2017, HANO filed the instant motion requesting that this Court grant leave to file an amended witness and exhibit list, so that it may include two additional witnesses and five additional exhibits.[2]

         The two witnesses are (1) Representative(s) of Tropical A/C and Heat, LLC (“Tropical A/C”), and (2) Chuck Barbot from Billingsley Barbot Woolf Canale (“Barbot”).[3] According to HANO's amended list, Tropical A/C is included “[t]o authenticate documents produced during discovery and to be used as exhibits for HANO, re: replacement of water heaters installed by Parkcrest Builders.” (Rec. Doc. 323-4 at 14.) Similarly, Barbot is included “[t]o authenticate documents produced during discovery and to be used as exhibits for HANO, re: HVAC installations.” Id. However, in its motion for leave, HANO states an additional purpose that the witnesses will serve, which is to provide testimony to the facts “contained in and relating to the documents” that the witnesses would authenticate. (Rec. Doc. 323-1 at 4.) HANO refers to only three such documents: two inspection reports conducted by Tropical A/C on the Property's heating, ventilation, and air conditioning (HVAC) systems[4] and an email exchange in which Barbot discusses the likely cause of odorous water in the Property's water heaters (Rec. Doc. 323-5). According to HANO, this testimony would admittedly relate to latent defects in the HVAC systems and the water heaters that were known to HANO before the filing deadline, but HANO emphasizes that the extent of the defects was not known to HANO until June 15, 2017 and was not communicated to its counsel until after the deadline.

         Parkcrest and Liberty Mutual object to HANO's motion, arguing that it is well past the Court's August 1, 2017 discovery completion deadline as well as the June 2, 2017 expert report deadline. In addition, HANO waited well over a month to attempt to amend its witness and exhibit list. Thus, Liberty Mutual and Parkcrest contend that permitting HANO's amendments would result in unfair prejudice to them. (Rec. Docs. 340, 342.) Liberty Mutual and Parkcrest also claim that HANO is attempting to admit unreported opinion testimony from these witnesses concealed as mere fact or authentication testimony. The motion is now before the Court on the briefs.

         DISCUSSION

         Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order may be modified “only for good cause and with the judge's consent.” The scheduling order in this case states:

Counsel for the parties shall file in the record and serve upon their opponents a list of all witnesses who may or will be called to testify on trial, and all exhibits that may or will be used, not later than June 16, 2017.
The Court will not permit any witness, expert or fact, to testify or exhibits to be used unless there has been compliance with this Order as it pertains to the witness.

(Rec. Doc. 63.) To determine whether good cause exists, the Court considers: (1) the explanation for the failure to timely act; (2) the importance of the evidence; (3) the potential prejudice in allowing the evidence; and (4) the availability of a continuance to cure such prejudice. S&W Enterprises, L.L.C. v. Southtrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003) (citing Fed.R.Civ.P. 16(b)). None of the four factors is dispositive; rather, the focus is on whether the factors collectively favor admission or exclusion of the evidence. The Court has broad discretion to preserve the integrity of its scheduling order when a party has failed to show good cause for a tardy submission. Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 547 (5th Cir. 2003).

         (1) The Explanation for the Failure ...


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