United States District Court, D. Massachusetts
(REVISED) MEMORANDUM AND ORDER
J. Casper United States District Judge.
4 MVR, LLC (“4 MVR”) brought this action relating
to the construction of a residence in Nantucket,
Massachusetts against defendants Warren W. Hill
(“Hill”) and Warren W. Hill Construction Company,
Inc. (“Hill Construction”). 4 MVR has moved for
summary judgment. D. 232; D. 240. Hill also moves for summary
judgment. D. 234; D. 276. Hill moves to strike certain
materials 4 MVR submitted in support of its motion for
summary judgment. D. 249; D. 259; D. 262; D. 303. 4 MVR moves
to strike certain materials Hill submitted in support of his
motion for summary judgment. D. 288; D. 295. For the reasons
stated below, the Court DENIES in part and ALLOWS in part
Hill's motion for summary judgment. The Court DENIES in
part and ALLOWS in part 4 MVR's motion for summary
judgment. The Court DENIES the various motions to strike.
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The
movant bears the burden of demonstrating the absence of a
genuine issue of material fact. Carmona v. Toledo,
215 F.3d 124, 132 (1st Cir. 2000). If the movant meets its
burden, the non-moving party may not rest upon the
allegations or denials in her pleadings, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but
“must, with respect to each issue on which she would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010) (citation
omitted). “As a general rule, that requires the
production of evidence that is ‘significant[ly]
probative.'” Id. (quoting
Anderson, 477 U.S. at 249) (alteration in original).
otherwise noted, the following facts are undisputed and drawn
from the parties' various statements of fact. D. 239; D.
254; D. 279; D. 283; D. 287; D. 299; D. 300. Hill began
building houses on Nantucket in 1976. D. 239 ¶¶
20-21; D. 283 ¶¶ 20-21. In 1982, Hill formed Hill
Construction and began working on commercial and residential
construction projects. D. 239 ¶ 24; D. 254 ¶ 5; D.
283 ¶ 24.
is a limited liability company that owns the property located
at 4 Middle Valley Road in Nantucket (the
“Property”). D. 239 ¶ 1; D. 254 ¶ 1; D.
283 ¶ 1. Donald A. Burns (“Burns”) controls
4 MVR and 4 MVR's sole member is the Donald Alan Burns
Revocable Trust, a trust that was established by Burns. D.
239 ¶¶ 2, 4-6; D. 287 ¶ 2; D. 283 ¶ 2,
2010, 4 MVR solicited bids to build a residence for Burns on
the Property (the “Project”). D. 239 ¶¶
59-61, 86-91; D. 254 ¶¶ 7, 12-14; D. 283
¶¶ 59-61. After reviewing contractors, Burns
identified four contractors, including Hill Construction, he
deemed qualified to bid on the Project. D. 239 ¶ 65; D.
283 ¶ 65. On February 1, 2010, Hill Construction
submitted a bid in the amount of $22, 751, 741. D. 239 ¶
86; D. 254 ¶ 12; D. 283 ¶ 86. On that same day,
Hill Construction's bid was accepted by 4 MVR as the
lowest bid. D. 239 ¶ 88; D. 283 ¶ 88.
and Hill Construction thereafter engaged in contract
negotiations. D. 239 ¶¶ 99-184; D. 254 ¶¶
14-16; D. 283 ¶¶ 99-184. 4 MVR and Hill
Construction were both represented by counsel during their
negotiations. D. 239 ¶¶ 79, 99-103; D. 254 ¶
22; D. 283 ¶¶ 79, 99-104, 165. Burns was involved
with the negotiations on behalf of 4 MVR and representatives
from the architecture firm on the Project, Jacobsen
Architecture LLC - including Heidi Leinbach
(“Leinbach”), Hugh Newell Jacobsen (“Hugh
Jacobsen”) and Simon Jacobsen - assisted with awarding
and finalizing 4 MVR's contract with Hill Construction.
D. 239 ¶¶ 36-38, 46, 48, 94-97, 102, 104; D. 283
¶¶ 36-38, 46, 48, 94-97, 102, 104. Hill was
involved in the negotiations on behalf of Hill Construction.
D. 239 ¶ 95, 110-111; D. 283 ¶ 95, 110-111. During
the negotiations, 4 MVR and Hill Construction discussed,
inter alia, sources of funding available to Hill
Construction, D. 239 ¶¶ 113-116; D. 254
¶¶ 16, 31, 71; D. 283 ¶¶ 113-116, and
methods and requirements for handling the applications for
payment Hill Construction periodically submitted to 4 MVR for
work completed (“Pay Application”). D. 239
¶¶ 160-162, 165; D. 283 ¶¶ 160-162, 165.
point during the negotiations between 4 MVR and Hill
Construction, 4 MVR attempted negotiations with the second
lowest bidder, Woodmeister. D. 239 ¶ 133; D. 254 ¶
48. The negotiations between Woodmeister and 4 MVR, however,
were ultimately terminated and 4 MVR elected to revisit
negotiations with Hill Construction. D. 239 ¶¶
155-157; D. 254 ¶¶ 77, 79; D. 283 ¶¶
about February 20, 2010, Hill Construction and 4 MVR executed
the contract governing the Project. D. 239 ¶¶ 78,
105, 185; D. 254 ¶¶ 21, 23-24. The contract
consisted of modified versions of AIA Document A101-2007 (the
“Agreement”) and AIA Document A201-2007 (the
“General Conditions”) (collectively, the
“Contract”). D. 239 ¶¶ 78, 105, 188; D.
254 ¶ 21. The Contract was a fixed price contract
whereby the Project was to be completed for a predetermined
lump sum price plus any change orders. D. 239 ¶¶
84-85; D. 254 ¶¶ 20, 25; D. 283 ¶¶ 84,
85. The Contract sum was for the stipulated amount of $22,
751, 741. D. 239 ¶ 186; D. 283 ¶ 186. Pursuant to a
contract between 4 MVR and Jacobsen, Jacobsen's
responsibilities during the Project included providing
administration of the Contract, visiting the construction
site, informing 4 MVR as to the progress of the Project and
reviewing and certifying Pay Applications. D. 239 ¶ 39;
D. 283 ¶ 39.
the course of the Project, Hill Construction submitted 42 Pay
Applications for work performed and 4 MVR paid certain of the
Pay Applications that Hill Construction submitted. D. 239
¶¶ 220, 324, 326-327; D. 254 ¶¶ 186-188,
267-270. The Project ultimately experienced delays and was
expected to exceed the initially agreed upon budget. D. 239
¶ 375-376, 384-385; D. 254 ¶¶ 297, 302-303; D.
283 ¶¶ 375-376. On January 11, 2012, 4 MVR
terminated the contract with Hill Construction. D. 239 ¶
397; D. 254 ¶ 317; D. 283 ¶ 397. 4 MVR then hired
Woodmeister to complete the Project. D. 239 ¶ 399; D.
254 ¶ 319; D. 283 ¶ 399.
April 16, 2012, 4 MVR instituted this action against Hill and
Hill Construction. D. 1. In its amended complaint, 4 MVR
asserted claims for breach of contract, breach of express and
implied warranty and breach of fiduciary duty against Hill
Construction. D. 29 at 1. In its amended complaint, 4 MVR
asserted a claim against Hill for misrepresentation.
Id. On January 25, 2013, the Court granted
Hill's motion to dismiss 4 MVR's misrepresentation
claim. D. 50. On March 18, 2013, Hill Construction filed a
suggestion of bankruptcy with this Court. D. 60; D. 254
¶ 320. On March 20, 2013, the Court dismissed this
action without prejudice to allow for proceedings in
bankruptcy court. D. 61.
January 15, 2014, the Court granted 4 MVR's motion to
reopen this action only as against Hill. D. 74. In reopening
this action, the Court permitted 4 MVR to file an amended
complaint asserting a claim for misrepresentation and a claim
for violation of Mass. Gen. L. c. 93A against Hill.
Id. On January 16, 2014, 4 MVR filed its second
amended complaint. D. 81. Hill, in turn, asserted in its
answer a counterclaim against 4 MVR for breach of contract
and third party claims against Burns for contribution,
violation of Mass. Gen. L. c. 93A, misrepresentation, fraud
and breach of contract. D. 82 at 20-22. Hill's claims for
breach of contract were dismissed pursuant to an assented to
motion. D. 114. On June 24, 2015, the Court allowed 4
MVR's motion for judgment on the pleadings seeking
dismissal of Hill's third party claims against Burns for
contribution, violation of Mass. Gen. L. c. 93A,
misrepresentation and fraud. D. 194. Thus, at this juncture
in the litigation, only 4 MVR's claims for
misrepresentation and violation of Mass. Gen. L. c. 93A
against Hill remain.
moves for summary judgment on all of these claims. D. 232; D.
Hill moves for summary judgment on the same claims. D. 234.
The parties seek to strike certain of the other party's
filings, D. 249, 259, 262, 288, 295, 303, which the Court
addresses below. The Court heard the parties on the pending
motions and took these matters under advisement. D. 293.
Motions to Strike
Hill's Motion to Strike “New Allegations Outside
the Complaint” Is Denied
seeks to strike certain of 4 MVR's allegations as
“new fraud allegations.” D. 262; D. 263 at 1.
The Allegations at Issue
Hill contends that the following allegations relating to Pay
Applications that appear in 4 MVR's summary judgment
motion were not asserted in 4 MVR's second amended
complaint: (1) 4 MVR's allegation that Hill made false
representations relating to retainage paid to subcontractors
for Line Items #33 (cabinet hardware) and #42 (tile &
tile floors); (2) 4 MVR's allegation that Hill made false
representations regarding the percentage of work completed on
the Project and that the work was completed in accordance
with the Contract as it related to the tile installation
completed by Stephen Silverio Tile (“Silverio
Tile”); and (3) 4 MVR's allegation that Hill's
representation that work was completed in accordance with the
Contract was false because Hill executed subcontracts that
did not incorporate the Contract's material terms. D. 262
at 2-3; D. 263 at 3; D. 275-1 at 5-12. Second, Hill concedes
that 4 MVR's allegation that Hill misrepresented Hill
Construction's solvency was asserted in 4 MVR's first
amended complaint. D. 263 at 4-5. Nonetheless, Hill contends
that the insolvency allegation must be stricken because it
was not re-pleaded in 4 MVR's second amended complaint.
The Standard for Amending Pleadings Post-Discovery
argues that 4 MVR was obligated to amend its complaint before
pursuing summary judgment on these “unpleaded”
claims. Id. at 3; D. 275-1 at 14. In asserting this
argument, Hill relies upon Asociacion de Suscripcion
Conjunta del Seguro de Responsabilidad Obligatorio v.
Juarbe-Jimenez, 659 F.3d 42, 53 (1st Cir. 2011). In
Asociacion, the plaintiff represented up until
summary judgment that it was challenging the insurance
commissioner's regulations as unconstitutional “on
their face.” Asociacion, 659 F.3d at 53. The
plaintiff represented that it was not asserting an as-applied
constitutional challenge. Id. When the defendant
moved for summary judgment on the facial challenge, however,
the plaintiff asserted for the first time in its opposition
an as-applied challenge. Id. Thus, as the court
explained, the plaintiff impermissibly sought to assert a new
legal theory of recovery and struck the unpleaded theory of
Asociacion, 4 MVR has added factual detail to an
already asserted claim without asserting a new claim or
theory of recovery. “The federal rules do not
contemplate that parties will amend their pleadings to
reflect new information obtained in the discovery
process.” Ash v. Wallenmeyer, 879 F.2d 272,
274 (7th Cir. 1989); Umar v. Johnson, 173 F.R.D.
494, 503 (N.D. Ill. 1997) (explaining that “nothing in
federal procedure compels a plaintiff to amend the complaint
as discovery unfolds”) (citation omitted). Moreover,
with fraud claims, where the volume of misrepresentations at
issue is potentially substantial, the fraud pleading
requirements are satisfied so long as pled with particularity
under Fed.R.Civ.P. 9(b), D. 50 at 8 and cases cited,
and where the fraud claim alleges numerous transactions over
time, Rule 9(b) will still be satisfied if “the
complaint alleges the basic framework, procedures, and the
nature of fraudulent scheme that give rise to [the]
belief” that misrepresentations occurred. In re
Pharm. Indus. Average Wholesale Price Litig.,
478 F.Supp.2d 164, 172 (D. Mass. 2007) (citing U.S. ex
rel. Thompson v. Columbia/HCA Healthcare Corp.,
20 F.Supp.2d 1017, 1049 (S.D. Tex. 1998)).
4 MVR's Allegations Regarding Statements on Pay
Applications Submitted to 4 MVR Do Not Amount to an
Impermissible New Claim or Theory of Recovery
not entitled to have the following allegations stricken from
the record: (1) 4 MVR's allegation that Hill made false
representations on Pay Applications relating to retainage
paid to subcontractors for Line Items #33 (cabinet hardware)
and #42 (tile & tile floors); (2) 4 MVR's allegation
that Hill made false representations on Pay Applications
regarding the percentage of work completed on the Project and
that the work was completed in accordance with the Contract
as it related to the Silverio Tile; and (3) 4 MVR's
allegation that Hill's representation on Pay Applications
that work was completed in accordance with the Contract was
false because the subcontracts did not incorporate the terms
of the Contract as was required. As an initial matter, 4
MVR's misrepresentation claims have been central to this
litigation from the outset. See, e.g., D. 1
¶¶ 58-66; 4 MVR, LLC v. Warren W. Hill Const.
Co., No. 12-cv-10674-DJC, 2015 WL 3932380, at *1 (D.
Mass. June 26, 2015) (stating that “this is a fraud and
deceptive business practices suit”). The second amended
complaint contains specific allegations that provided Hill
adequate notice that 4 MVR's misrepresentation claims
involved statements on Pay Applications and Hill's
alleged failure to strictly to comply with the Contract in
submitting Pay Applications. D. 81.
example, in the second amended complaint, 4 MVR asserts that
“[i]n connection with each [Pay Application] [Hill
Construction] submitted for the Project, Hill certified on
behalf of [Hill Construction], that, among other things,
‘the Work covered by [that] Application for Payment has
been completed in accordance with the Contract Documents,
that all amounts have been paid by the Contractor for Work
for which previous Certificates for Payment were raised and
payments received from [4 MVR], and that the current payment
here [was] now due.” D. 81 ¶ 34. 4 MVR further
alleged that it reasonably relied upon those representations
in the Pay Applications in issuing payments to Hill
Construction. Id. ¶ 35. 4 MVR also asserted
that “[a]s a result of Hill's overbilling the
Project and collecting payment from [4 MVR] for work that
Hill misrepresented had been completed, [4 MVR] suffered
damages.” Id. ¶ 42. Still more, the
second amended complaint provides a non-exhaustive list of
“example[s]” of Hill allegedly overbilling,
misrepresenting the amount of work completed and
misrepresenting retainage. Id. ¶¶ 56-65.
of these ways, 4 MVR's allegations in the second amended
complaint properly pled these claims and put Hill on notice
that 4 MVR's misrepresentation claim related to,
inter alia, Hill Construction's billing
practices, including but not limited to representations made
regarding work completed on the Project. Hill received
adequate notice of the three billing related allegations that
Hill now challenges not only through the operative pleadings.
the core of the allegations at issue were asserted in the
second amended complaint, 4 MVR was permitted to elaborate
upon those allegations based upon information it obtained
during discovery. See Ash, 879 F.2d at 274
(concluding that plaintiff could recover for underbilling
claim even though plaintiff did not formally amend the
pleadings after learning of the potential for
underbilling-based damages during discovery). To the extent
that the allegations Hill challenges contain new details,
given the substantial overlap with the allegations contained
in the second amended complaint, the new details are properly
narrow and drawn from information disclosed to both parties
during discovery. For example, during discovery a Rule
30(b)(6) deposition was taken of Stephen Silverio. Hill's
RA, Tab 45, Silverio Dep. Sep. 23, 2015; 4 MVR's RA, Tab
53, Silverio Dep. Sep. 23, 2015. 4 MVR represents that this
deposition provided 4 MVR additional information to clarify
its already pleaded misrepresentation allegations regarding
overbilling to identify the work Silverio completed on tiles.
D. 271 at 8. Such elaborations of particular instances of
overbilling do not amount to new claims and are, therefore,
permissible without formal amendment to the pleadings.
See Umar v. Johnson, 173 F.R.D. 494, 503 (N.D. Ill.
1997) (declining to dismiss claim at summary judgment as
unpleaded where “the recasting of the [plaintiffs']
claim [was] an eminently reasonable adjustment necessary to
state that claim properly, in light of the evidence uncovered
during discovery”). For all of these reasons,
Hill's motion to strike these allegations is denied.
4 MVR's Allegation that Hill Misrepresented Hill
Construction's Insolvency Was Pled
argument for striking 4 MVR's claim that Hill made false
representations regarding Hill Construction's solvency
fails because that allegation is expressly asserted in the
second amended complaint. Paragraph 26 of the complaint
alleges that Hill, on behalf of Hill Construction, made the
“express representation and warrant[y]” that
“[Hill Construction] is financially solvent, able to
pay all its debts as they mature and possessed of sufficient
working capital to complete the Work and perform all
obligations hereunder.” D. 81¶ 26. The second
amended complaint also references Hill Construction's
alleged insolvency and representations regarding the same
where it is alleged that “[h]ad [4 MVR] known the truth
about [Hill Construction's] financial difficulties
earlier and had Hill not concealed the full extent of [Hill
Construction's] financial distress for a period of
months, [4 MVR] could have taken action sooner to minimize
its losses.” Id. ¶ 76. 4 MVR also asserts
in the second amended complaint that Hill's
representation regarding Hill Construction's solvency was
material to 4 MVR's decision to enter into the Contract.
Id. ¶¶ 27, 76. Thus, 4 MVR's claim
that Hill misrepresented Hill Construction's solvency is
contained in the second amended complaint and Hill cannot
claim lack of notice. Indeed, Hill acknowledged in its
opposition to 4 MVR's third motion to compel document
production that Hill Construction's financial condition
and insolvency and Hill‘s representations relating to
the same were central to this case. D. 172 at 2-4.
Accordingly, Hill's motion to strike this allegation is
Hill Has Not Demonstrated Any Specific Prejudice
striking the allegations is unwarranted because Hill has not
shown, contrary to his suggestion otherwise, D. 275-1 at
16-17, prejudice he has suffered. Indisputably, the issues of
Hill Construction's financial status, insolvency and
billing practices have been central to this case. See,
e.g., D. 81 ¶¶ 26-27, 34-35, 56-65, 76. These
topics were explored during discovery. See, e.g.,
Hill's RA, Tab 45, Silverio Dep. Sep. 23, 2015; 4
MVR's RA, Tab 53, Silverio Dep. Sep. 23, 2015; D. 266-1
at 165; Hill's RA, Tab 3, Hill Dep. at 145:1-156:6; 4
MVR's RA, Tab 4, Hill Dep. at 127: 3-24, 139: 16-144: 22,
Sept. 15, 2015. Hill has pointed to no litigation strategy he
would have employed, no deposition he would have taken and no
particular documents he would have sought during discovery
had he been even more explicitly warned of these specific
iterations of 4 MVR's alleged misrepresentation claim.
Here, “dismissal-the practical effect of the . . .
refusal to allow [4 MVR] to prove [its claims] - [is] too
harsh a sanction for a harmless error (if error it
was).” Ash, 879 F.2d at 274-75. For all of
these reasons, Hill's motion to strike is denied.
Hill's Motion to Strike Larry Schaedel's Affidavit Is
seeks to strike the affidavit of Larry Schaedel
(“Schaedel”) on the grounds that 4 MVR violated
its duty under Fed.R.Civ.P. 26(a)(1)(e) to disclose Schaedel
as an expert witness. D. 249; D. 250 at 1; D. 268-1.
Schaedel's Expert Affidavit Is Governed by Fed.R.Civ.P.
of experts is governed by Fed.R.Civ.P. 26(a)(2). See
Chevron Corp. v. Shefftz, 754 F.Supp.2d 254, 263 (D.
Mass. 2010); Advanced Analytics, Inc. v. Citigroup Glob.
Markets, Inc., 301 F.R.D. 31, 35 (S.D.N.Y.). Pursuant to
Fed.R.Civ.P. 26(a)(2), parties are required to disclose to
the opposing party the identity of any expert witness that
may be used to present evidence. See Lohnes v. Level 3
Commc'ns, Inc., 272 F.3d 49, 59-60 (1st Cir. 2001).
Courts may preclude a party who fails to satisfy the
disclosure requirements of Rule 26(a) from “us[ing] as
evidence at a trial, at a hearing, or on a motion any witness
or information not so disclosed.” Id.
(alternations in original) (citation omitted).
Hill's reliance upon Fed.R.Civ.P. 26(a)(1) in seeking to
strike Schaedel's expert affidavit is misplaced. See
Chevron Corp., 754 F.Supp.2d at 263; In re
Mercedes-Benz Anti-Trust Litig., 225 F.R.D. 498, 505
(D.N.J. 2005). Experts do not “fall within the category
of persons covered by the initial disclosure rule” set
out in Fed.R.Civ.P. 26(a)(1). In re Mercedes-Benz
Anti-Trust Litig., 225 F.R.D. at 505.
4 MRV's Disclosure of Schaedel's Affidavit Did Not
Violate 4 MVR's Duty to Disclose Timely
MVR's disclosure of Schaedel did not violate 4 MVR's
duty to timely disclose under the Rules. In terms of
timeliness, Rule 26(a)(2) requires that expert testimony must
be disclosed “at the times and in the sequence that the
court orders.” Fed.R.Civ.P. 26(a)(2)(D). In the absence
of a court order, expert testimony must be disclosed
“at least 90 days before the date set for trial or for
the case to be ready for trial.” Id. The Court
has not yet set an expert disclosure deadline. D. 250 at 5;
D. 265 at 7. Indeed, in its most recent scheduling order, the
Court provided that if no summary judgment motions were filed
by the summary judgment motion filing deadline, the hearing
for summary judgment motions would be converted into an
initial pretrial conference at which expert discovery
deadlines and a trial date would be set. D. 195; D. 196. In
the absence of a court imposed deadline, pursuant to the
instruction of Fed.R.Civ.P. 26(a)(2), 4 MVR was obligated to
disclose Schaedel 90 days before the trial date.
Exclusion of Schaedel's Affidavit Is Not Warranted under
there was any delay in disclosing Schaedel, the sanction that
Hill seeks is not warranted. Pursuant to Fed.R.Civ.P.
37(c)(1), “a party who ‘without substantial
justification fails to disclose information required by Rule
26(a) . . . is not, unless such failure is harmless,
permitted to use as evidence . . . any witness or information
not so disclosed.'” Lohnes v. Level 3
Commc'ns, Inc., 272 F.3d 49, 60 (1st Cir. 2001)
(alteration in original) (citing Fed.R.Civ.P. 37(c)(1)).
Here, to the extent that there was any delay in disclosing
Schaedel's affidavit, the delay was justified based on
the circumstances presented here. Fact discovery closed on
September 24, 2015, less than two months before 4 MVR filed
Schaedel's affidavit on November 19, 2015.
Compare D. 195 with D. 244. On September 15, 2015,
just before the close of fact discovery, Hill's Rule
30(b)(6) deposition was taken. D. 257 ¶ 3. 4 MVR
represents that the deposition transcripts were not served on
4 MVR until after October 21, 2015. D. 265 at 4. Given that
particular timeline of events, it cannot be said that
Schaedel's affidavit - which could not have been
completed before the close of fact discovery since it draws
upon facts collected in discovery including facts from
Hill's deposition - was disclosed with unjustifiable
addition, exclusion of Schaedel's affidavit is not
warranted because any delay here was harmless. Both Rule
26(a) and Rule 37(c)(1) “seek to prevent the unfair
tactical advantage that can be gained by failing to unveil an
expert in a timely fashion, and thereby potentially deprive a
plaintiff of the opportunity to ‘depose the proposed
expert, challenge his credentials, solicit expert opinions of
his own, or conduct expert-related discovery.'”
Poulis-Minott v. Smith, 388 F.3d 354, 358 (1st Cir.
2004). Thus, “[i]n determining whether plaintiff's
submission of [an expert] report was harmless, the Court must
balance ‘a multiplicity of pertinent factors, including
the history of the litigation, the proponent's need for
the challenged evidence, the justification (if any) for the
late disclosure, and the opponent's ability to overcome
its adverse effects.'” Bay State Sav. Bank v.
Baystate Fin. Servs., LLC, No. 03-cv-40273-FDS, 2007 WL
6064455, at *7 (D. Mass. Mar. 23, 2007) (citation omitted).
the history of this litigation and the substantial
opportunity Hill had to prepare expert evidence of his own
regarding Hill Construction's financial health, there is
no indication of unfair tactical advantage. First, Hill does
not and cannot claim any surprise regarding the subject
matter of Schaedel's affidavit. In his affidavit,
Schaedel focuses upon the issue of Hill Construction's
insolvency and Hill Construction's working capital prior
to, during and after Contract execution. D. 256. These
questions of Hill Construction's insolvency and working
capital are central to this litigation. Moreover, Hill was
aware of the importance of this topic given the discovery
taken on this subject. See, e.g., D. 266-1 at 32;
Hill's RA, Tab 6, Leinbach Dep. at 162:12-165:24, Sep.
21, 2015; Hill's RA, Tab 3, Hill Dep. at 100:12-104:13,
Sept. 15, 2015.
of these reasons, the Court will not strike Schaedel's
affidavit from the record on timeliness grounds.
Hill is Not Otherwise Entitled to Have Schaedel's
Hill argues that Schaedel's affidavit should be stricken
because (1) it is not based upon personal knowledge; (2) it
does not identify the documents upon which Schaedel bases his
opinions; and (3) it fails to comply with the expert
disclosure requirements of Fed.R.Civ.P. 26(a)(2)(B). D. 250
at 5-7. Each of these arguments is unpersuasive. First,
Hill's argument regarding Schaedel's lack of personal
knowledge is without merit because Schaedel's affidavit
is an expert submission, D. 250 at 6; D. 265 at 4, and
“[t]o the extent an affiant is a qualified expert, her
testimony need not be based on personal knowledge.”
Fraser & Wise, P.C. v. Primarily Primates, Inc.,
966 F.Supp. 63, 69 (D. Mass. 1996) (citation omitted). Given
that Hill concedes that Schaedel's “affidavit is
properly characterized as an expert affidavit purportedly
offering an expert opinion as to Hill Construction's
solvency, ” D. 250 at 6, Schaedel's failure to rely
upon personal knowledge is not a basis for striking the
in the affidavit, Schaedel does identify the documents - such
as Hill Construction's QuickBooks accounting records,
Hill Construction's corporate tax returns and Hill
Construction's loan documents with Nantucket Bank - he
relied upon in reaching each particular conclusion. See,
e.g., D. 256 ¶¶ 12, 15, 17-18, 24-25, 31-34,
37-39. Schaedel also describes his relevant qualifications
and experiences, including his twenty years of accounting
experience. Id. ¶¶ 1-8. Accordingly,
Schaedel's affidavit is not devoid of an adequate basis.
See, e.g., Chao v. Moore, No.
99-cv-1283-AW, 2001 WL 743204, at *2 (D. Md. June 15, 2001)
(declining to strike the expert affidavit where the expert
sufficiently cited the facts upon which her opinion was
based); M & M Med. Supplies & Serv., Inc. v.
Pleasant Valley Hosp., Inc., 981 F.2d 160, 166 (4th Cir.
1992) (concluding that expert affidavit that identified the
facts upon which the expert's opinion was based should be
considered on a motion for summary judgment).
Schaedel's affidavit will not be stricken for failure to
comply with Fed.R.Civ.P. 26(a)(2)(B) because Fed.R.Civ.P.
26(a)(2)(B), applying to expert reports, is inapplicable to
Schaedel's affidavit. See Fraser & Wise, P.C. v.
Primarily Primates, Inc., 966 F.Supp. 63, 68 n.2 (D.
Mass. 1996) (concluding that Fed.R.Civ.P. 26(a)(2)(B) was not
a basis to strike where the expert affidavit did “not
purport to be the report of an expert disclosed in accordance
with Rule 26(a)(2)(B)”).
Hill's Motion to Strike Schaedel's Second Affidavit
Is Denied for the Same Reasons
February 2, 2016, 4 MVR filed a second affidavit from
Schaedel. D. 298. Hill moves to strike Schaedel's second
affidavit. D. 303. In essence, Hill raises the same challenge
he raises against Schaedel's original affidavit.
Accordingly, for the same reasons Hill's motion to strike
Schaedel's original affidavit failed, this motion fails
4 MVR's Motion to Strike the Affidavit of William J.
Lovett Is Denied
moves to strike Attorney William J. Lovett's
(“Lovett”) affidavit submitted in support of
Hill's motion for summary judgment. D. 288. 4 MVR argues
that Lovett's affidavit should be stricken because (1) it
was filed two days after the court imposed deadline for
summary judgment motions; and (2) it violated Local Rule
7.1(b)(1) because it was filed separately from Hill's
motion for summary judgment without leave of court.
Id. at 1-2. Although Hill did not to seek leave of
court before filing an affidavit separate from the related
motion for summary judgment due by an established deadline, 4
MVR does not argue that it has suffered any prejudice as a
result of the two day delay or Hill's failure to seek
leave of court before filing Lovett's affidavit. As such,
and for the sake of a thorough record, the Court denies the
motion to strike Lovett's affidavit. See, e.g.,
Spinal Imaging, Inc. v. Aetna Health Mgmt. LLC, No.
09-cv-11873-LTS, 2014 WL 1278012, at *16 (D. Mass. Mar. 26,
2014); BASF Corp. v. Sublime Restorations, Inc., 880
F.Supp.2d 205, 211 (D. Mass. 2012).
Hill's Motion to Strike Certain Paragraphs in Burn's
Affidavit Is Denied
moves to strike certain paragraphs in Burn's affidavit,
D. 255, in support of 4 MVR's motion for summary
judgment. D. 259. Hill contends that paragraphs 12, 14, 16,
18, 22, 24-26, 29, 32-37, 40, 42, 44-45 and 48-75 should be
stricken. D. 260 at 13. Hill charges that these paragraphs
contain inadmissible hearsay, are not based upon personal
knowledge, conflict with Burn's sworn deposition
testimony and interrogatory answers and contain legal
conclusions. Id. at 3-14. With the exception of
paragraph 40, the Court denies Hill's motion to strike as
moot because the Court does not rely upon the challenged
portions of Burn's affidavit in resolving the motions for
paragraph 40, the Court denies Hill's motion to strike
because, contrary to Hill's characterization, D. 260 at
8, paragraph 40 is not a legal conclusion or unsupported
allegation. In paragraph 40, Burns asserts that “[i]f
Hill had not falsely represented that he had secured adequate
financing to undertake the Project on behalf of the
Contractor, then I, on behalf of the Owner, was prepared to
agree to Woodmeister's terms on the previously disputed
contract issues and hire Woodmeister to construct the Project
at the outset.” D. 255 ¶ 40. Burns was a manager
of 4 MVR and it is undisputed that he was directly involved
in the negotiation and execution of the Contract. D. 239
¶¶ 61, 81-82, 94-96, 110, 133; D. 283 ¶¶
61, 81-82, 94-96, 110. Thus, he had personal knowledge of the
contract negotiations and authority within 4 MVR sufficient
to be directly engaged with the decision regarding whether to
hire Woodmeister over Hill Construction. See, e.g.,
Ruggiero v. Am. United Life Ins. Co., 137 F.Supp.3d
104, 107 n.1 (D. Mass. ...