United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO EXCLUDE FROM
ADMISSION PLAINTIFF'S TRIAL EXHIBITS
Torresen United States District Judge
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
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.
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.
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-
http://www.med.uscourts.gov/-by May 29, 2019.
the final pretrial conference was held and Pretrial Order was
issued, the Plaintiff was represented by attorneys John Ney,
Ernest Wagner, and Carrie Folsom,  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
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.
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. Goodman Aff., Ex. A.
29, 2019, attorneys Brett Messinger and Elizabeth Lacombe
entered their appearances for the Plaintiff. (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.
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.” 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.
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
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 ...