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Mallco Co. v. Universal Granite & Marble, Inc.

United States District Court, E.D. Michigan, Southern Division

February 24, 2017

MALLCO COMPANY, Plaintiff,
v.
UNIVERSAL GRANITE & MARBLE, INC., Defendant.

          ORDER REGARDING MOTIONS IN LIMINE [#24; #25; #26; #27]

          DENISE PAGE HOOD CHIEF JUDGE.

         I. BACKGROUND

         On January 4, 2016, Plaintiff Mallco Company (“Mallco”) filed a Complaint against Defendant Universal Granite & Marble, Inc. (“UGM”) alleging breach of lease contract. (Doc # 1) A bench trial is scheduled to begin on February 28, 2017. This matter is now before the Court on several Motions in Limine filed by Mallco and UGM. (Docs # 24, 25, 26, 27) The Motions have been fully briefed.

         The case arises from the landlord-tenant relationship between the parties. The parties have stipulated to the following facts. (Doc # 31) Mallco owns real property located at 31201 Mally Drive in Madison Heights, Michigan (the “Premises”). On March 26, 2003, Mallco and UGM entered into a written Amended and Restated Office Lease (“Lease”) under which UGM leased the Premises from Mallco for a period of five years and three months beginning on November 4, 2002 and ending on February 4, 2008. The Lease was extended several times via writings signed by both parties. The most recent written extension of the Lease extended the term of the Lease from April 3, 2014 through April 3, 2015 and increased the monthly rent to $8, 616.69. UGM continued to occupy the Premises after April 3, 2015 on a month-to-month basis, as agreed upon between Mallco and UGM. UGM vacated the Premises in July 2015, after leasing the Premises for approximately fourteen years. UGM did not pay rent in July 2015. Mallco is in possession of UGM's security deposit in the amount of $8, 616.67. UGM is entitled to a tax credit totaling $2, 432.29 for real estate taxes paid by UGM that were not otherwise due or owing.

         Mallco alleges that UGM is responsible for the following monetary damage after it vacated the Premises: (1) $8, 616.00 for rent not paid in July 2015; (2) $49, 400.00 for physical damage to the parking lot; (3) $15, 320.00 for repairs to industrial strength cranes located inside the Premises and utilized by UGM; (4) $52, 970.00 for miscellaneous repairs to the interior and exterior of the Premises beyond reasonable wear and tear, and as required by the City of Madison Heights' municipal code.

         UGM claims that the damages sought by Mallco are outside the scope of UGM's obligations under the terms of the Lease. According to UGM, the repairs to the parking lot and building fall outside the scope of Paragraph 13 of the Lease, and the repairs to the cranes fall outside the scope of Paragraph 54 of the Lease because UGM did not misuse the cranes or fail to maintain them in accordance with OSHA standards. UGM claims that any amount that the Court may find it is obligated to pay is offset by the security deposit in Mallco's possession and by the tax credit that is due and owing to UGM.

         Through the instant Motions in Limine, UGM seeks to exclude documents not produced during discovery, conflicting testimony by Mallco, and expert testimony. Mallco seeks to exclude evidence regarding the use of the parking lot and cranes.

         II. ANALYSIS

         A. UGM's Motion to Exclude Documents Not Produced During Discovery

         UGM seeks to exclude documents not produced during discovery regarding Mallco's purported damages. UGM states in its Motion that it is willing to give Mallco the benefit of the doubt as of August 15, 2016, when Mallco responded to the First Written Discovery that Mallco did not yet have finalized invoices to evidence payments for the repairs. UGM acknowledges that Mallco did provide quotes for the repairs. However, at his deposition on September 12, 2016, Chester Lane Mally (“Mally”), Mallco's sole employee and managing partner, was unable to provide specific figures as to what portions of the quotes he believed UGM was responsible for paying. He testified that various invoices and quotes would become available shortly after his deposition and that he would provide those as they became available. Following the deposition, UGM again requested the documents on October 10 and 27, 2016. UGM argues that Mallco's failure to supplement their discovery response in a timely manner was not substantially justified or harmless. UGM notes that most of the documents were actually generated from July 2016 through November 2016 with only one document dated December 2016 and one document dated January 2017. (Doc # 36-5)

         Mallco responds that it explained why the documents were not initially provided (because they were not yet in existence) and that it produced all of the requested documents on January 30, 2017 (identifying which specific repairs it seeks to recover for from UGM). Mallco notes that the repairs to the Premises were completed from August 2016 through December 2016. Mallco asserts that Mally could not compile the documents until January 2017 because he spent much of December 2016 out of the state and has no other staff. Mallco also notes that the scope and nature of the repairs has barely changed since the inception of the case, and UGM has not been taken by surprise or unfairly prejudiced in any way.

         Rule 37(a) of the Federal Rules of Civil Procedure allows a party to make a motion to compel the opposing party to respond to discovery requests. Fed.R.Civ.P. 37(a). If the motion to compel is granted, the court may impose sanctions, including attorney's fees and costs. Fed.R.Civ.P. 37(a)(5). If a party fails to comply with a court's order, then the moving party may file a motion under Rule 37(b)(2) for more severe sanctions such as striking out pleadings, prohibiting a party from introducing matters into evidence or entering a default judgment or dismissal against the party failing to obey any orders. Fed.R.Civ.P. 37(b)(2)(A). Rule 37(c) provides that a court may prevent a party who fails to provide information as required by Rule 26(a) from supplying evidence at trial, unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c). However, “[w]here exclusion necessarily entails dismissal of the case, the sanction must be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction.” Dickerson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004) (quotations and citation omitted).

         The Court's review of the docket shows that no motions to compel discovery were filed by either party. Accordingly, there is no court order compelling discovery of the documents Mallco has now produced, four months after the close of discovery. The Court declines to impose the severe sanction of prohibiting a party from introducing matters into evidence in this case, given that Mallco has not violated any Court order. Although Plaintiff's Counsel should have instructed his client to provide him with the documents already in existence at an earlier date, UGM did have fairly accurate estimates of the damages Mallco is claiming by the end of discovery, as well as the names of most, if not all, of the contractors so that further discovery could have been pursued. See Doc # 24-3. The Court denies UGM's Motion to Exclude Documents Not Produced During Discovery.

         B. UGM's Motion to Exclude Conflicting Testimony by Mallco

         UGM seeks to exclude any testimony regarding repairs and/or maintenance to the parking lot that would conflict with the testimony provided by Mally at his deposition. UGM argues that Mallco is bound by the deposition testimony of Mally, its corporate designee, and, as to areas that Mally testified not knowing about during his deposition, Mallco cannot maintain otherwise at trial.

         Mallco acknowledges that it does not have documents or a clear memory regarding the history of the parking lot prior to UGM's tenancy. Mallco argues that this issue goes to the credibility of Mally's testimony as opposed to its admissibility. Mallco notes that, should Mally testify to additional facts about the parking lot at trial, UGM would have the opportunity to impeach him using his deposition testimony, and the Court would make an appropriate credibility determination.

         Mally, as a witness under Federal Rule of Civil Procedure 30(b)(6), is bound by his prior deposition testimony. However, the Court does not yet know what Mally will testify to at trial, and the Court agrees with Mallco that this issue would go to the credibility of Mally's testimony. Should Mally provide conflicting testimony at trial, UGM will have the opportunity to impeach him using his deposition ...


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