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Fountain Valley Investment Partners, LLC v. Continental Western Insurance Co.

United States District Court, D. Colorado

October 22, 2015



NINA Y. WANG, Magistrate Judge.

This matter comes before the court on Defendant Continental Western Insurance Company's ("Continental" or "Defendant") Motion to Strike Plaintiff's Belated Expert Disclosure of Daniel Davis ("Motion to Strike"). [#51, filed August 31, 2015]. Pursuant to the Order Referring Case dated August 1, 2014 [#18] and the memorandum dated September 1, 2015 [#52], this matter was referred to the undersigned Magistrate Judge. Having carefully reviewed the Motion and related briefing, the entire case file, and the applicable case law, the court hereby GRANTS the Motion to Strike.


Plaintiff Fountain Valley Investment Partners, LLC ("Fountain Valley" or "Plaintiff") initiated this action on June 6, 2014 in El Paso County District Court, State of Colorado, to resolve a dispute regarding insurance coverage. Plaintiff filed a First Amended Complaint on July 2, 2014, asserting a claim for Breach of Contract, Unreasonable Delay or Denial of Payment pursuant to Colo. Rev. Stat. ยงยง 10-3-1104, 10-3-1113, and 10-3-1116, and Breach of the Common Law Implied Covenant of Good Faith and Fair Dealing. [#7]. The dispute arises from Defendant's alleged failure to fully compensate Plaintiff for hail damage sustained to multiple commercial properties in the Colorado Springs metropolitan area owned by Plaintiff and insured by Defendant. Plaintiff asserts the damage occurred during the storm that passed through the region June 6 and 7, 2012.

Defendant removed this action from state court by notice dated July 8, 2014, and filed an Answer on July 15, 2014. [#1, #12]. This court held a Scheduling Conference on October 22, 2014, and entered a Scheduling Order that required the Parties to designate affirmative and rebuttal experts no later than February 2, 2015 and March 13, 2015, respectively; join other parties and amend pleadings by December 3, 2014; complete discovery by April 22, 2015; and file dispositive motions on or before May 22, 2015. [#22, #23]. In addition, Chief Judge Krieger entered a Trial Preparation Order on October 23, 2014. [#24]. The Trial Preparation Order "sets deadlines, imposes requirements that supplement the Scheduling Order and imposes trial preparation requirements, " including the deadline for filing Rule 702 motions challenging the admissibility of expert opinions concurrent with the dispositive motions. [ Id. at 2].

On April 9, 2015, upon joint motion of the Parties, the court extended the deadline for Defendant's designation of experts up to and including March 31, 2015, and for discovery up to and including May 22, 2015. [#26, #28]. The deadline for dispositive motions, however, was not extended and Plaintiff filed a Motion for Partial Summary Judgment on May 22, 2015. [#32]. Therefore, the deadline for filing Rule 702 remained set for May 22, 2015. [#24 at 2].

On May 28, 2015, Plaintiff filed a Motion to Amend the Amended Complaint, seeking leave to add June 4, 2012 and June 18, 2013 as alternative dates of hail storms that caused the complained of property damage. [#33]. On July 13, 2015, this court issued an Order granting the Motion to Amend as to the First Claim for Breach of Contract and a Recommendation that the Motion to Amend be denied as to the two remaining claims. [#48]. Plaintiff filed an Objection to the Recommendation [#49], to which Defendant filed a Response [#50]. The Order and Recommendation, which is pending before Chief Judge Krieger, directed Plaintiff to file a Second Amended Complaint clarifying that the bad faith claims are limited to Defendant's actions assuming a June 6 or 7 date of loss. Id.

On August 31, 2015, Continental filed the pending Motion to Strike asking the court to strike the Supplemental Expert Disclosure of Daniel Davis ("Davis Disclosure"), an expert who would offer testimony concerning the cause of roof damage and the cost of repair based on his role in inspecting the job, bidding the job, and supervising the job as an employee of Old World Roofing and Gutter Service ("Old World"). [ See #51, #54 at 4]. Old World began working on the roof in the spring of 2015 and finished in August 2015. [#54 at 4]. Plaintiff filed a Response on September 19, 2015 [#54] and Defendant filed a Reply on October 8, 2015 [#58]. This court initially set a hearing on the Motion to Strike for October 15, 2015 [#53], which the Parties jointly sought to move to "the week of November 30-December 4, 2015." [#55]. This court vacated the motion hearing instructing that it would be "reset by further court order if necessary." [#57].


Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that a party must disclose to all other parties the identity of any person who may be used at trial to present evidence under Rule 702, 703, or 705 of the Federal Rules of Evidence. Fed.R.Civ.P. 26(a)(2)(A). A retained expert must provide a report that contains "(1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them (3) any exhibits that will be used to summarize or support them; (4) the witness's qualifications, including a list of all publications authored in the previous 10 years; and (5) a statement of the compensation to be paid for the study and testimony in the case." Fed.R.Civ.P. 26(a)(2)(B). The Rule also dictates that parties shall disclose affirmative experts first, and disclose rebuttal witnesses within 30 days after the other party's disclosure (unless otherwise set by the court). Fed.R.Civ.P. 26(a)(2)(D).

Rule 37(c) governs violations of Rule 26(a)(2). Fed.R.Civ.P. 37(c). Rule 37(c)(1) of the Federal Rules of Civil Procedure provides:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, ...

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