United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER, UNITED STATE DISTRICT JUDGE.
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
AND PROCEDURAL BACKGROUND
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
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
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”). 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 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.
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.
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
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).
The Explanation for the Failure ...