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LLC v. Family Fare, LLC

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

December 20, 2017

50820 Schoenherr Road FJ Associates, LLC, Plaintiff,
v.
Family Fare, LLC, and SpartanNash Company, d/b/a Spartan Stores, Inc., Defendants.

          David R. Grand Judge

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO STRIKE EXPERTS [18]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

         This case is before the Court on defendants' motion for “an order striking the reports of plaintiff's experts and precluding them from testifying pursuant to Fed.R.Civ.P. 37(c).” (Dkt. 18 at 1.) Defendants allege that plaintiff has “repeatedly failed to comply with two of [the] Court's scheduling orders, by failing to provide timely damages expert reports containing and disclosing the information required by Fed.R.Civ.P. 26(a).” (Id.) For the reasons set forth below, defendants' motion is granted.

         I. Introduction

         On March 7, 2017, plaintiff 50820 Schoenherr Road (FJ) Associates, LLC, filed suit against defendants Family Fare, LLC and SpartanNash Company for damages resulting from an alleged failure in February 2014 to surrender a commercial property in the condition required under their lease agreement. (Dkt. 1.) Plaintiff seeks “an unspecified amount of money damages in excess of $75, 000, including the amount to repair the damages to the premises.” (Dkt. 11 at 4.)

         The parties filed a joint discovery plan on May 19, 2017, in which they agreed that plaintiff's expert disclosure(s) and report(s) would be provided no later than September 15, 2017. (Id. at 11.) The Court issued a scheduling order on May 30, 2017, establishing the September 15, 2017 deadline. (Dkt. 12.) Defendants served interrogatories on plaintiff in July 2017, seeking the total amount of damages claimed in the case (Interrogatory No. 2) and detailed information about each item of damages being claimed (Interrogatory No. 3). (Dkt. 18-2 at 3.) Plaintiff objected to Interrogatory No. 2, stating that it required an expert opinion, and that any damages report would be made available to defendant “upon receipt from its expert.” (Id.)

         On September 15, 2017, plaintiff provided defendants with a list of experts and a copy of a previously disclosed 2015 due diligence report.[1](Dkt. 18 at 14.) On September 22, 2017, defendants sent plaintiff a letter outlining numerous alleged deficiencies with plaintiff's interrogatory responses, document production, and expert disclosure. (Dkt. 18-3.) Pursuant to the Court's Practice Guidelines, defendants requested a telephonic status conference after receiving no response to the deficiency letter. (Dkt. 18 at 15.) The status conference was held on October 11, 2017.

         Following the status conference, the Court issued an amended scheduling order, establishing a deadline of October 18, 2017 for plaintiff to provide supplemental responses to defendants' interrogatories and document production requests, and establishing an extended deadline of October 31, 2017 for plaintiff to provide its expert disclosure(s) and report(s).

         On October 19, 2017, plaintiff provided supplemental interrogatory answers. In response to Interrogatory No. 2, which requested the “total amount of damages that Landlord contends it is owed in this litigation, ” plaintiff continued to object to the question by asserting that it “calls for an expert opinion.” (Dkt. 18-4 at 3.) Subject to that objection, plaintiff referenced the 2015 report and, based on that report, asserted it is owed $180, 486.98 plus attorney costs and fees. (Id.) In response to Interrogatory No. 3, plaintiff inserted a copy of the itemized list of damages from the 2015 report and asserted that “[t]he costs for the repairs to the Premises caused by the Plaintiff were included in the Tenant Improvement Allowance for the new tenant.” (Dkt. 18-4 at 6.)

         On October 26, 2017, plaintiff sent an email to the Court and requested an additional two-week extension to the previously extended October 31, 2017 deadline for expert disclosure(s) and report(s). The Court's case manager advised plaintiff that any further request for an extension would need to be set forth in a motion. (Dkt 18 at 17.) Plaintiff did not file a motion, and on October 31, 2017, plaintiff provided disclosures and reports for two experts. (Id.) Defendants argue that the proffered reports fail to comply with the requirements of Fed.R.Civ.P. 26(a)(2)(B), and have brought the present motion seeking an order under Fed.R.Civ.P. 37(c) precluding plaintiffs from using the proffered reports.

         II. Analysis

         An expert report “must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; [and] (iii) any exhibits that will be used to summarize or support them.” Fed.R.Civ.P. 26(a)(2)(B). “An expert opinion must ‘set forth facts' and, in doing so, outline a line of reasoning arising from a logical foundation.” Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d 655, 657 (6th Cir. 2005). In this case, each of plaintiff's expert reports fails to meet the requirements of Fed.R.Civ.P. 26(a)(2)(B).

         Plaintiff's first report is from Jason Krentler regarding “the market rental rate of the subject property as of September 17, 2015.” (Dkt. 18-5 at 3.) The report is included in its entirety as Exhibit E to defendants' motion. (Dkt. 18-6.) The report concludes that the prevailing market rental rate for properties comparable to the property at 50820 Schoenherr Road was $8.00 to $10.00 per square foot. (Id. at 5.) The report contains a brief methodology section which states: “[t]he scope of our analysis included research around the following market indicators: (1) available comparable listings; (2) comparable lease transactions; (3) market participant interviews; . . . and the associated contract inputs.” (Id. at 11.) The report is completely devoid of the underlying “facts or data” related to the comparable listings, comparable lease transactions, and/or market participants; only a summary of the conclusions is included. (Id. at 13.)

         Plaintiff's second report supports the proffered testimony of Steve Laskowsi regarding the “alleged damages and cost of repairs to the Premises.” (Dkt. 18-5 at 4.) The report is included in its entirety as Exhibit F to defendants' motion. (Dkt. 18-7.) As previously stated, the report includes an itemized list of thirty-three “existing conditions, ” a cost estimate for each of the items, and - in some cases - references to specific photographs documenting the damage. (Dkt. 18-7 at 9.) The report also includes repair estimates from two contractors: (1) a proposal from Professional Sprinkler Inc., for new fire sprinkler heads for $1, 100.00; and (2) a proposal from Level 1 HVAC Services, Inc., to remove walk-in coolers and freezers for $24, 000.00 and to do preventative maintenance on the HVAC system for $5, 890.00. (Dkt. 18-7 at 60-65.) The two proposals ...


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