Mills et al v. Foremost Insurance Company, No. 8:2006cv00986 - Document 199 (M.D. Fla. 2010)

Court Description: ORDER granting in part and denying in part 140 Motion to strike ; withdrawing 146 Motion to strike. See order for details. Signed by Judge Elizabeth A. Kovachevich on 9/2/2010. (TJD)

Download PDF

Mills et al v. Foremost Insurance Company Doc. 199 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION DALE J. MILLS and C. DIANE MILLS, Plaintiffs, Case No.: 8:06-cv-00986-T-EAK-AEP v. FOREMOST INSURANCE COMPANY, Defendant. ORDER FROM DAUBERTHEARING ON DEFENDANT'S MOTION TO STRIKE DECLARATION OF RICHARD CARY AND CERTAIN EXHIBITS FILED IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFCIATION AND SUPPORTING MEMORANDUM OF LAW (DKT. 140) AND DEFENDANT'S MOTION TO STRIKE THE EXPERT DECLARATIONS OFFERED IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION; AND SUPPORTING MEMORANDUM OF LAW (DKT. 146) THIS CAUSE is before this Court from theJuly 8, 2010, Dauberi Hearing on Defendant's, FOREMOST INSURANCE COMPANY (hereinafter -'Foremost"), Motion to Strike Expert Declaration of Richard Cary and Certain Exhibits Filed in Support of Plaintiffs' Motion for Class Certification and Supporting Memorandum of Law (Diet 140) and Defendant's Motion to Strike the Expert Declarations Offered in Support of Plaintiffs' Motion for Class Certification; and Supporting Memorandum of Law (Dkt. 146). For the reasons set forth below, Defendant's Motion to Strike Declaration of Richard Cary and Certain Exhibits Filed in Support of PlaintiffsMotion for Class Certification and Supporting Memorandum of Law (Dkt. 140) is GRANTED IN PART AND DENIED IN PART. In regards to Defendant's Motion to Strike the Expert Declarations Offered in Support of Plaintiffs' Motion for Class Certification (Dkt. 146), Defendant's oral motion to withdraw made at the July, 8, 2010, Dauberi Hearing is GRANTED. Dockets.Justia.com DISCUSSION 1. Motion to Strike Declaration of Richard Cary and Certain Exhibits Filed in Support of Plaintiffs' Motion for Class Certification and Supporting Memorandum of Law. (Dkt. 140) A. Richard Can- Declaration (Dkt. 126) Foremost moves this Court for an order striking the declaration of Richard Cary on the grounds that his declaration, and subject matter contained therein, was not timely disclosed. Foremost contends that the Richard Cary Declaration, in addition toa motion in limine from the Burgess1 action and a performance review of Isabelle Arnold, must all be stricken on the grounds that Foremost withdrew its motion to compel after receiving alleged assurances that all witnesses and documents had been disclosed by the Plaintiffs (hereinafter"Millses") prior to the close of class discovery. According to the Transcript of Digitally Recorded Hearing Re: Defendant's Motion to Compel Before this Honorable Anthony E. Porcelli, United States Magistrate Judge (Dkt. 100, 10:14-16), Plaintiffs counsel Fisher stated that he did not anticipate any additional documentsor any other matter that would be responsive to the defendant's interrogatories or requests for production. However, during the same hearing, Defensecounsel Townes stated, "There is only one area of any real concern to us, and those are the documents relating to their expert, Keith Sonnier," (Dkt. 100, 6:13-15). Thus, this Court fails to see how Foremost is prejudiced as the scope of their motion to compel appears narrowed to Sonnier. Further, as the Second Amended Case Management Report (Dkt. 79) states, under General Provisions Governing Discovery, Section s. Disclosure of Expert Testimony: Parlies stipulate, in accordance with Fed. R. Civ. P. 26(a)(2)(C), that Plaintiffs Fed. R. Civ. P. 26(a)(2) disclosure will be due as noted here: Plaintiffs' disclosure due December 7, 2009; Defendant's disclosure due December 28, 2009. Plaintiffs rebuttal expert disclosure due January 18, 2010. In accordance with the above Section of the Second Amended Case Management Report, the Declaration of Richard Cary does not appear untimely and is not stricken. BillBurgess and Betty Burgess v. Farmers Ins. Co. Inc., and Farmer's Ins. Exch.. (Case No. CJ-2001 292) (Okla. Dist. Ct. (Comanche County). B. Isabelle Arnold Performance Review (116-13) On similar grounds, Foremost moves this Court to strike the performance review of Isabelle Arnold. However, Foremost fails to assert how they are prejudiced. Upon consideration by this Court of the date in which Defendant's motion to strike was filed, and the subsequent testimony of Ms. Arnold before this Court at the July 8, 2010, Daubert hearing, this Court finds no prejudice to Foremost regarding the inclusion of Ms, Arnold's performance review. As such, the deadline in which Ms. Arnold's performance review was to have been filed is waived and her performance review shall not be stricken. C. Settlement Documents (Dkt. 116-4, 116-5,116-6,116-7), Motion in Limine (Dkt. 116-2), Daucs Deposition (Dkt. 123) Foremost moves this Court for an order striking settlement documents on a relevancy basis from two statecourt actions in Oklahoma2 and Arkansas3. Furthermore, Foremost moves this Court to strike a motion in limine from the Burgess action (Dkt.l 16-2) and the deposition of James Daues (Dkt. 123). Foremost contends that these documents are irrelevant as Foremost was not a party to the underlying actions or to the settlement documents in which Foremost now seeks to have this Court exclude. In Wajcman v. Inv. Corp. of Palm Beach, No. 07-80912-CIV, 2009 WL 465071 (S.D. Fla. Feb. 23, 2009), the Plaintiffs sought to introduce evidence ofsettlements between other poker facilities in regard to their tip pooling practices. The Wajcman court stated, "The question of whether Rule 408 bars evidence of a settlement between one of the parties and a third party when such settlement involves similar circumstances to, but docs not arise out of, the transaction with which the litigation is concerned remains undecided by the Eleventh Circuit," {citing Dallis v. Aetna Life Ins. Co., 768 F.2d 1303, 1307, n. 2 (11th Cir. 1985)). Federal Rule of Evidence Rule 408, 28 U.S.C.A., reads in its entirety as follows: " BillBurgess andBetty Burgess v. farmers Ins. Co. Inc., and Farmer's Ins. Exclt, (Case No. CJ-2001 -292) (Okla. Dist. Ct. (Comanche County). Alexander et al. v. Nationwide Mutual Ins. Co., eta/., (Case No. CV-2009-120-3) (Ark. Cir. Ct. (Miller County)). Rule 408. Compromise and Offers to Compromise (a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish—or accepting or offering or promising to accept—a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. (b) Permitted uses.—This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice: negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. As the Wajcman court establishes, "Here, Plaintiffs seek to introduce evidence of settlements between other poker facilities and their employees-some of whom are also Plaintiffs in this aclion-with regard to their tip pooling practices. It appears that Plaintiffs seek to offer this evidence to establish that other poker facilities, which may have included floor supervisors in their tip pools, were guilty of violating the FLSA. However, admitting evidence of such settlement agreements for that purpose would run afoul of Rule 408 because a settlement cannot be used as proof of a parry's liability,"{Id. at p.2). See Imliazuddin v. North Avenue Auto, Inc., 2004 WL 2418295, *2-3 (N.D. III. Oct.27, 2004)(courtfound plaintiffs settlements with other defendants to be inadmissible, where their relevance and probative value was "doubtful," the evidence would likely be a "waste of time" and only lead to "jury confusion"); see also Pioneer Hi-Bred Intern., Inc. v. Ottawa Plant Food, Inc., 219 F.R.D. 135, 144 (N.D. Iowa 2003) (settlements with other defendants are "not ordinarily admissible"). This Court finds that inclusion of the settlement documents factually irrelevant, potentially burdensome, and tending to lead jurors astray. Furthermore, the instant case isat the class certification stage and not at the settlement stage. As such, the requirements under Fed. R. Civ. P. 23(c) for class certification are different than those requirements under Fed. R. Civ. P. 23(e)(2), which are to be evaluated to determine whether a settlement is fair, reasonable, and adequate. While the Millses contend that in the instant case the Burgess and Nationwide'1 settlement documents are not being offered in order to establish liability, but offered for the limited purpose of determining manageability and superiority issues on the Millses' Motion for Class Certification, the nexus between Burgess and Nationwide to the instant case is too attenuated. The underlying facts are different, the forums are different, and this Court does not find the inclusion of the documents to be helpful in determining manageability or superiority issues upon Plaintiffs' pending motion for class certification. As such, the settlement documents from Burgess and Nationwide are stricken. Foremost also moves this Court to exclude other documents from the Burgess Action. First, Foremost moves this Court to strike a motion in limine filed in the Burgess action, which the Millses argue will aid this Court with class certification. Second, Foremost moves this Court to strike the deposition of Farmers Insurance Exchange, Fire Insurance Exchange, and Truck Insurance Exchange, Senior Vice President, Mr, James Daues. Both of these documentsare again from a lawsuit arising in a separate forum, containing different parties, and which may ultimately prove to be more burdensome than helpful when evaluating Plaintiffs' motion for class certification. In addition, Mr. Daues deposition was taken on January 9, 2003, while the putativeclass in the instantcase is defined by a period of time between August I, 2004, and the present. As Mr. Daues' deposition pre-dates the relevant time period in the instant case, and appears from a separate, distinct case, both the Burgess motion in limine and the deposition of Mr. Daues are stricken. 4Alexander et al. v. Nation-wide Mutual Ins. Co., et al, (Case No. CV-2009-120-3) (Ark. Cir. Ct. (Miller County)). D. 28U.S.C. S19275 Under the plain language of the statute, three essential requirements must be satisfied with respect to an award of sanctions under §1927. First, the attorney must engage in "unreasonable and vexatious" conduct. Second, that "unreasonable and vexatious" conduct must be conduct that "multiplies the proceedings." Finally, the dollar amount of the sanction must bear a financial nexus to the excess proceedings, i.e., the sanction may not exceed the "costs, expenses, and attorneys' fees reasonably incurred because of such conduct." SeePeterson v. BMI Refractories, 124 F.3d 1386, 1396 (11"1 Cir. 1997). This Court does not find the conduct of Plaintiff s counsel to be unreasonable and vexatious, and as such, finds no need to analyze the remaining two requirements as they are moot. This Court does not find the alleged untimely disclosure of witnesses and documents by Foremost to give rise to sanctions pursuant to 28 U.S.C. § 1927. Foremost's motion for Plaintiffs' counsel to be sanctioned is denied. II. Motion to Strike the Expert Declaration Offered in Support of Plaintiffs' Motion for Class Certification; and Supporting Memorandum of Law (Dkt. 146) At the July 8, 2010, Daubert Hearing, Foremost made a voluntary oral motion to withdraw their Motion to Strike Expert Declarations Offered in Support of Plaintiffs' Motion for Class Certification; and Supporting Memorandum of Law (Dkt. 146). Foremost's motion to withdraw Dkt. 146 is hereby granted. § 1927. Counsel's liability for excessive costs Any attorney or otherperson admitted to conduct cases in anycourt of the United States or any Territory thereofwho so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. Conclusion Accordingly, it is: ORDERED that the Defendant's, FOREMOST INSURANCE COMPANY, motion to withdraw Defendant's Motion to Strike the Expert Declaration Offered in Support of Plaintiffs' Motion for Class Certification; and Supporting Memorandum of Law (Dkt. 146) be GRANTED. ORDERED that Defendant's, FOREMOST INSURANCE COMPANY, Motion to Strike Declaration of Richard Cary and Certain Exhibits Filed in Support of Plaintiffs' Motion for Class Certification and Supporting Memorandum of Law. (Dkt. 140) be GRANTED IN PART AND DENIED IN PART. The motion to strike The Declaration of Richard Cary (Dkt. 126) and the performance review of Isabelle Arnold (Dkt. 116-14) is DENIED. The motion to strike the Burgess and Nationwide settlement documents (Dkt. 116-4, 116-5, 116-6, 116-6), the motion in limine from Burgess action (Dkt. 116-2), and the deposition of James Daues is GRANTED. DONE AND ORDERED in Chambers at Tampa, Florida, thjgSwyiay ofSeptember, 2010. Copies to: All parties and counsel of record.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.