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Carrington Mortgage Services, LLC v. Gionest

United States District Court, D. Maine

January 7, 2020



          Nancy Torresen United States District Judge

         I held a bench trial in this case on September 24, 2019. On September 23, 2019, the Defendant filed this motion seeking to exclude Plaintiff's Exhibits 6, 9A, 9B, 9C, 14, and 16[1] because they were not provided to the Defendant until the day before trial. (ECF No. 121.) At trial, I reserved ruling on this motion and conditionally admitted the six challenged exhibits. For the reasons stated below, I GRANT in part and DENY in part the Defendant's motion to exclude.


         This case has a long history, much of which was summarized by Judge Levy in an order entered on February 4, 2019, during unsuccessful settlement negotiations. (ECF No. 84.) After that Order was issued, Judge Levy ordered the Plaintiff to pay the Defendant attorney's fees incurred in connection with the judicial settlement conference and subsequent hearings. (ECF No. 90.) A final pretrial conference was held on April 30, 2019, and on May 3, 2019, a Report of the Final Pretrial Conference and Order was issued. (“Pretrial Order”) (ECF No. 95). The Pretrial Order stated,

Discovery. Discovery is complete. Counsel identified no outstanding discovery issues at the conference requiring the court's intervention. Attorney Ney agreed to provide to [the Defendant's attorney] copies of all exhibits listed in the plaintiff's final pretrial memorandum by May 10, 2019.

         Pretrial Order 1. The Order further provided,

Exhibits. The parties shall exchange exhibits by May 17, 2019. The parties shall jointly prepare a consolidated list of all exhibits to be offered at trial, employing the form available on the Court's website- May 29, 2019.

         Pretrial Order 2.

         When the final pretrial conference was held and Pretrial Order was issued, the Plaintiff was represented by attorneys John Ney, Ernest Wagner, and Carrie Folsom, [2] and the Defendant was represented by Attorney Joseph Goodman. On May 17, 2019-the deadline for the exchange of exhibits-Attorney Ney sent Attorney Goodman an email, which read in part, “Please find attached the proposed trial exhibits to date and witness & exhibit list.” Goodman Aff., Ex. A (ECF No. 120-1). The exhibit list contained the following entries:

1. Originals or certified copies of the Note, Mortgage, and all endorsements, allonges, assignments, or other relevant instruments.
2. Originals or certified copies of Loan Modification Documents and all relevant information thereto.
3. A copy of the Notice of Default sent to Defendant.
4. Business records evidencing payment history of Defendant and balance due on the subject loan.
5. All documents introduced or listed by Defendant.

         Goodman Aff., Ex. A. The document also stated, “Plaintiff reserves the right to supplement or add to the Witness and Exhibit Lists upon sufficient prior notice to Defendant prior to trial.” Goodman Aff., Ex. A. Although the email contained several attachments, none of the contested exhibits was attached.[3] Goodman Aff., Ex. A.

         On May 29, 2019, attorneys Brett Messinger and Elizabeth Lacombe entered their appearances for the Plaintiff.[4] (ECF Nos. 98 and 99.) Counsel for both parties acknowledge that they had some discussion about the joint exhibit list that day. According to the Defendant, Plaintiff's counsel sent an email to defense counsel stating that, “Also, I know we need to coordinate filing the exhibits list today. I have court this morning but expect to send something over to you this afternoon to add your exhibit references.” Def.'s Reply 3-4 (ECF No. 131). After defense counsel responded that the Defendant had no exhibits, Plaintiff's counsel stated, “I'll be in touch about the exhibits list later today.” Def.'s Reply 4. Plaintiff's counsel filed the exhibit list on the Court's docket later that evening (ECF No. 101), apparently without further discussion with defense counsel. See Def's Reply 4. The Plaintiff does not dispute these facts, although the Plaintiff suggested at trial that “Mr. Goodman just didn't engage” on the joint exhibit list. See Pl.'s Response 6-7 (ECF No. 130); Trial Tr. at 23 (ECF No. 128). It appears that no additional exhibits were exchanged until September.

         Trial was initially set for June of 2019, but the Court granted the Defendant's unopposed motion to continue trial. On September 23, 2019-the day before the new trial date-defense counsel received a package of trial exhibits from the Plaintiff, six of which the Defendant had not previously received. See Goodman Aff. ¶¶ 4-5. The Defendant promptly filed a motion to exclude those six exhibits, arguing that exclusion is warranted because the Plaintiff failed to comply with the Pretrial Order that the parties “shall exchange exhibits by May 17, 2019.”[5] At the beginning of the trial on September 24, 2019, I heard from both parties on this issue. I reserved ruling on the motion, conditionally admitted the challenged exhibits pending the resolution of the motion, and invited the parties to file responsive briefs on the motion.


         The Federal Rules of Civil Procedure “endow trial judges with formidable case-management authority, ” and a “party who flouts a court order does so at its own peril.” Mulero-Abreu v. Puerto Rico Police Dep't, 675 F.3d 88, 91 (1st Cir. 2012) (internal quotation omitted); Hooper-Haas v. Ziegler Holdings, LLC, 690 F.3d 34, 37 (1st Cir. 2012). A trial court “[c]onfronted with repeated failures to comply with its scheduling orders . . . [has] considerable discretion in deciding what to do.” McKeague v. One World Techs., Inc., 858 F.3d 703, 706 (1st Cir. 2017). The “choice of an appropriate sanction must be handled on a case-by-case basis.” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir. 2002) (“This flexibility is necessary because the circumstances attendant to noncompliance are apt to differ widely.”).

         Federal Rule of Civil Procedure 16 governs pre-trial procedures. Under Rule 16(f), the court can impose sanctions, “including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a scheduling or other pretrial order.” Rule 37, in turn, enables the court to “prohibit[ ] the disobedient party from . . . introducing designated matters in evidence” or to ...

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