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4 MVR LLC v. Warren W. Hill Construction Co. Inc.

United States District Court, D. Massachusetts

September 13, 2016

4 MVR, LLC, Plaintiff,
v.
WARREN W. HILL CONSTRUCTION COMPANY, INC. and WARREN W. HILL, Defendants.

          (REVISED) MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff 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.

         II. Standard of Review

         The 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).

         III. Factual Background

         Unless 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.

         4 MVR 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, 4-6.

         In 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.

         4 MVR 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.

         At some 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 ¶¶ 155-157.

         On or 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.

         Over 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.

         IV. Procedural History

         On 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.

         On 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.[1]

         4 MVR moves for summary judgment on all of these claims. D. 232; D. 240.[2] 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.

         V. Motions to Strike

         A. Hill's Motion to Strike “New Allegations Outside the Complaint” Is Denied

         Hill seeks to strike certain of 4 MVR's allegations as “new fraud allegations.” D. 262; D. 263 at 1.

         1. The Allegations at Issue

         First, 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. Id.

         2. The Standard for Amending Pleadings Post-Discovery

         Hill 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 recovery. Id.

         Unlike 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)).

         3. 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

         Hill is 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.

         For 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.”[3] 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.

         In all 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.

         Because 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] 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. 4 MVR's Allegation that Hill Misrepresented Hill Construction's Insolvency Was Pled

         Hill's 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.”[5] 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 denied.

         5. Hill Has Not Demonstrated Any Specific Prejudice

         Moreover, 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.

         B. Hill's Motion to Strike Larry Schaedel's Affidavit Is Denied

         Hill 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.

         1. Schaedel's Expert Affidavit Is Governed by Fed.R.Civ.P. 26(a)(2)

         Disclosure 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).

         Accordingly, 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.

         2. 4 MRV's Disclosure of Schaedel's Affidavit Did Not Violate 4 MVR's Duty to Disclose Timely

         4 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.

         3. Exclusion of Schaedel's Affidavit Is Not Warranted under Fed.R.Civ.P. 37(c)

         Even if 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 delay.

         In 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).

         Considering 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.

         For all of these reasons, the Court will not strike Schaedel's affidavit from the record on timeliness grounds.

         4. Hill is Not Otherwise Entitled to Have Schaedel's Affidavit Struck

         Finally, 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 affidavit.

         Second, 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).

         Third, 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)”).

         5. Hill's Motion to Strike Schaedel's Second Affidavit Is Denied for the Same Reasons

         On 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 as well.

         C. 4 MVR's Motion to Strike the Affidavit of William J. Lovett Is Denied

         4 MVR 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).

         D. Hill's Motion to Strike Certain Paragraphs in Burn's Affidavit Is Denied

         Hill 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 summary judgment.

         As to 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. ...


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