United States District Court, D. Maine
ORDER ON MOTION FOR SUMMARY JUDGMENT
Z. Singal United States District Judge
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.
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).
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.
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).
MOTIONS TO STRIKE
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
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
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
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
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).
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.)
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.
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, ...