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Redmond v. Yachting Solutions LLC

United States District Court, D. Maine

May 13, 2019

JOHN REDMOND, Plaintiff,


          George Z. Singal United States District Judge

         Before the Court are Defendant's Motion for Summary Judgment (ECF No. 50), as well as two related motions to strike, Plaintiff's related Motion to Strike or Exclude the Affidavit of Anthony P. Hessert (ECF No. 55) and Plaintiff's Motion to Strike or Exclude the Affidavit of Vincent R. Jones (ECF No. 56). As explained herein, the Court DENIES all three motions.


         Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).

         Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotation marks and internal ellipsis omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993). “However, summary judgment is improper when the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Morales-Melecio v. United States (Dep't of Health and Human Servs.), 890 F.3d 361, 368 (1st Cir. 2018) (quotation marks omitted).


         Before laying out the factual summary in accordance with the standard just-described, the Court must resolve two motions to strike filed by Plaintiff: (1) the Motion to Strike or Exclude Affidavit of Anthony P. Hessert (“Hessert”) (ECF No. 55), and (2) the Motion to Strike or Exclude Affidavit of Vincent R. Jones (“Jones”) (ECF No. 56). By way of introduction to this evidentiary dispute, a key issue here is what activities Plaintiff performed while working for Defendant. The parties agree that Plaintiff John Redmond (“Redmond”) recorded his time and activities on a daily basis utilizing time sheets provided by Defendant Yachting Solutions (“YS”), which are included in the Joint Stipulated Record as Exhibit J (ECF No. 48-10). For purposes of summary judgment, the parties also agree that these “time sheets constitute a fair and accurate record of, and stand as the best evidence of, what Redmond did and for how long he claims he did it on any given day.” (Def. SMF (ECF No. 51), PageID # 457 & Pl. Resp. SMF (ECF No. 58), PageID # 531.) Jones and Hessert are YS employees who have reviewed Redmond's time sheets and their proffered testimony offers an alternative view of Redmond's YS work hours.

         The Court first turns to the issue of the Jones Affidavit. Jones “assumed the responsibilities and job duties of John Redmond” after Redmond's departure. (Jones Aff. (ECF No. 53), PageID # 475.) Defendant proffers Jones' testimony regarding his “actual experience doing the same tasks” noted in Redmond's time sheets, as well as the locations and estimated distances between locations noted on these time sheets. To the extent Plaintiff argues that Jones' testimony in this regard is only admissible under Federal Rule of Evidence 702, the Court disagrees. Jones' testimony regarding time estimates for tasks he has personally performed as a YS employee is admissible under Federal Rule of Evidence 701. See 4 Weinstein's Federal Evidence § 701.03 (2019) (noting that “a number of circuits agree that lay witnesses may, consistent with Rule 701(a), testify broadly regarding an employer's practices, policies, and procedures, provided their testimony is derived from personal knowledge and experience at the business”).

         Turning to Plaintiff's argument that the Jones Affidavit violates the “personal knowledge” requirement in Federal Rule of Civil Procedure 56(e)(1), the Court similarly disagrees. The Court reads the Jones' Affidavit as characterizing his “standard times” as “conservative estimates based upon [his] actual experience doing the same tasks.” (Jones Aff., PageID #s 475-76.) This characterization meets the personal knowledge requirement for purposes of Federal Rule of Civil Procedure 56(e).

         As a third basis for excluding the Jones Affidavit, Plaintiff asserts that Defendant failed to identify him as a person with discoverable information in either its Responses to Interrogatories, or its Initial Disclosures or any supplements thereto. See Fed.R.Civ.P. 26(a)(1), (e)(1) & 37(c)(1). In response to this argument, Defendant has identified six times in which Jones was identified during two separate depositions taken by Plaintiff's counsel. (See Def. Resp. (ECF No. 61), PageID # 554-55.) Defendant argues these disclosures during the discovery process excused it from further supplementation under Federal Rule of Civil Procedure 26(e)(1)(A). While the Court disagrees with Defendant on this point and views Plaintiff's complaint as a legitimate discovery violation, the Court ultimately concludes that allowing Jones' Affidavit in the context of summary judgment is harmless under Federal Rule of Civil Procedure 37(c)(1).

         “The harmless inquiry involves balancing ‘fairness, burden, and case management needs.'” Acadia Ins. Co. v. Cunningham, 771 F.Supp.2d 172, 176-77 (D. Mass. 2011) (quoting Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188, 198 (1st Cir. 2006)). Here, the Court finds that Jones was known to Plaintiff as a potential witness given the deposition references compiled by Defendants. More importantly, in the context of Defendant's request for summary judgment, the Court's consideration of the Jones Affidavit does not change the ruling on this dispositive motion. At best, Jones' testimony that a task took him less time than Redmond recorded for the same task in 2014 creates a genuine issue of material fact. Given the minimal impact on the disposition of the present motion and recognizing that the harmlessness inquiry involves an exercise of the Court's discretion, the Court DENIES Plaintiff's Motion to Strike or Exclude Affidavit of Vincent R. Jones (ECF No. 56).

         Plaintiff's other Motion to Strike seeks to exclude from the summary judgment record the Affidavit of Anthony P. Hessert (ECF No. 52), who is the Chief Financial Officer and President of YS. Hessert's Affidavit explains the process by which he compiled a ten-column spreadsheet, which purports to analyze Redmond's time sheets. (See Ex. 1 to Hessert Aff. (ECF No. 52-1), PageID # 466-477.) Plaintiff argues that the Hessert Affidavit, along with the attached spreadsheet and other supporting exhibits, is subject to exclusion on multiple bases. To the extent Plaintiff seeks exclusion based on hearsay or lack of personal knowledge, the Court overrules these objections with one exception. Having allowed the Jones Affidavit, the Court finds that Hessert's Affidavit is entitled to rely on Jones' statements to the extent they are contained in his affidavit. The Court will exclude and disregard the “Marina Manager time details” contained on the right hand side of column nine. On the current record, these comments from an unidentified Marina Manager are hearsay. In all other respects, the Court agrees with Defendant that the spreadsheet is a summary of admissible evidence and therefore admissible under Federal Rule of Evidence 1006. (See Def. Response (ECF No. 60), PageID #s 546-47.)

         Plaintiff alternatively argues that the Hessert Affidavit, along with the attached spreadsheet, should be excluded for discovery violations, including failing to disclose Hessert as an expert witness. The Court's analysis of these objections is similar in form and substance to the analogous objections Plaintiff presented to the Jones Affidavit. First, the Court concludes that the time sheet summary contained in the spreadsheet falls under Federal Rule of Evidence 701. As such, there was no violation of the discovery rules regarding expert disclosures. As to Defendant's failure to identify Hessert in its Initial Disclosures and Interrogatory Responses, the Court concludes that Federal Rule of Civil Procedure's 37(c)(1)'s exclusion remedy does not apply. Rather, having balanced all of the relevant considerations, including the fact that Hessert was disclosed during at least two separate depositions and the limited impact that Hessert's Affidavit and attached exhibits have on the disposition of the pending motion, the Court finds the failure was harmless.[1]


         Defendant Yachting Solutions, LLC (“YS”) is a limited liability corporation organized and existing under the laws of the State of Maine and maintains its principal place of business in Rockport, Maine. Although YS is based out of Rockport, Maine, it also has business locations in Rockland, Maine, and Camden, ...

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