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Virginia Street Fidelco, L.L.C. v. Orbis Products Corp.

United States District Court, D. New Jersey

May 30, 2017

VIRGINIA STREET FIDELCO, L.L.C., et al., Plaintiffs,
v.
ORBIS PRODUCTS CORPORATION, Defendants.

          OPINION AND ORDER

          JAMES B. CLARK, III United States Magistrate Judge.

         THIS MATTER comes before the Court on a motion by Plaintiffs seeking to reopen discovery in this matter in order to supplement the expert report of Richard S. Greenberg, PhD. (the “Greenberg Report”) [Dkt. No. 166]. Defendants oppose Plaintiffs' motion [Dkt. No. 168]. For the reasons set forth below, Plaintiffs' motion to supplement the Greenberg Report [Dkt. No. 166] is GRANTED.

         I. BACKGROUND AND PROCEDURAL HISTORY[1]

         The Complaint in this action was filed on April 11, 2011 by Plaintiffs City of Newark and Virginia Street Fidelco, L.L.C. (collectively “Plaintiffs”) and seeks recovery for the cost of remediating alleged environmental contamination on a piece of property (the “Orbis Site”) located at 55 Virginia Street in Newark, New Jersey.[2] Plaintiff City of Newark is the current owner of the Orbis Site as a result of a foreclosure in the late 1990s. Plaintiff Virginia Street Fidelco, L.L.C. is the contract purchaser of the property. The Defendants in this action are companies and individuals affiliated with those companies alleged by Plaintiffs to be responsible for contamination of the Orbis Site prior to Defendant City of Newark's ownership.[3]

         Fact discovery in this matter concluded on July 14, 2014.[4] See Dkt. No. 90. Pursuant to an Order entered by the Court on December 28, 2015, the exchange of the parties' expert reports was to be completed by March 21, 2016. See Dkt. No. 153. All export reports were exchanged by the March 21, 2016 deadline. Dkt. No. 168 at p. 6. The Greenberg Report, which is the subject of the present motion, was dated November 3, 2015, and was supplemented in March 2016. Id.

         Prior to the close of fact discovery and the exchange of expert reports in this matter, the Court granted a motion to dismiss for lack of personal jurisdiction filed by Defendant Vernon G. Browne. See Dkt. No. 57. Following Browne's dismissal, Plaintiffs filed an action against him in the United States District Court for the Middle District of Florida (the “Florida Action”) which involved the same claims and subject matter as the case presently before this Court.[5] The Florida Action proceeded to a bench trial held on April 25, 2016 in front of the Honorable Richard A. Lazzara, U.S.D.J. On June 29, 2016, Judge Lazarra issued an Order finding that Defendant was entitled to the entry of final judgment in its favor and against Plaintiffs.[6]

         The Greenberg Report relied upon by Plaintiffs in this matter was also relied upon by Plaintiffs in the Florida Action. In the Florida Action, the Court outlined several shortcomings of the Greenberg Report, including that in preparing his report, Greenberg: did not conduct any independent analysis or work at the Orbis Site and instead relied upon reports and sampling information provided by other parties; did not speak with the New Jersey Department of Environmental Protection (“NJDEP”) or other environmental agencies regarding the current status of the Orbis Site and instead relied on information found on NJDEP's website; made mistakes in his report regarding the conditions of the Orbis Site; did not reduce his estimate of future environmental costs at the Orbis Site to account for possible contamination from off-site sources; and did not know the locations at the Orbis Site where the prior consultant had collected soil samples and therefore did know where contamination requiring remediation had been found. See Virginia St. Fidelco, LLC. v. Estate of Vernon G. Brown, No. 8:14-CV-130-T-26EAJ, Dkt. No. 103 at p. 7-8. As a result of these identified shortcomings, the Court in the Florida Action found that Greenberg's cost estimate for soil remediation at the Orbis Site was based upon his unsupported assumption that all of the soil at the Orbis Site is contaminated and must be removed or treated, and that he “did not provide a factual basis for his future environmental remediation cost estimates set forth in . . . his report.” Id. at p. 9-10.

         On August 3, 2016, this Court entered an Opinion and Order granting in part and denying in part Defendants' motions for summary judgment and a motion by Defendant the Estate of Elena Duke Benedict to dismiss for lack of personal jurisdiction [Dkt. Nos. 162, 163]. Following the Court's decision on Defendants' motions and based upon the defects in the Greenberg Report outlined in the Florida Action, Plaintiffs requested and were granted leave from the Court to file the present motion to supplement the Greenberg Report pursuant to Federal Rule of Civil Procedure 26(e).[7]

         In support of their motion, Plaintiffs claim that although the status of the Greenberg Report in this action differs from its status in the Florida Action because this Court allowed Greenberg to submit a reply to Defendants' expert report, allowing the submission of a supplemental report “will put to rest any criticisms and will further provide an update as to the conditions at the [Orbis Site] since the reply report was completed many months ago.” Dkt. No. 166 at p. 13. Defendants oppose Plaintiffs motion and argue that “Plaintiffs have known for years about conditions at the [Orbis Site] and the extent of the remedial investigations conducted there” and that Plaintiffs have failed to allege the existence of any new evidence which would justify the reopening of expert discovery and the preparation of a supplemental report. Dkt. No. 168 at p. 11.

         II. DISCUSSION

         Pursuant to Federal Rule of Civil Procedure 26(e), a party “must supplement or correct its disclosure: (A) in a timely manner if the party learns that in some material respect the disclosure . . . is incomplete or incorrect . . . .” As Plaintiffs' request to supplement is far outside the deadlines set forth in the scheduling orders for this matter, in considering Plaintiffs' request, the Court considers: (1) the prejudice to the opposing party; (2) the ability of the opposing party to cure the prejudice; (3) the extent to which allowing a supplemental statement would disrupt the order and efficiency of the proceedings; (4) bad faith or willfulness of the moving party in failing to comply with the Court's orders; and (5) the importance of the excluded evidence. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d Cir. 2012). However, “parties may not use their obligation to supplement [under Rule 26(e)] as an excuse to violate the clear terms of a Scheduling Order, unilaterally buying themselves additional time to make disclosures, thereby unduly prejudicing other parties and potentially delaying the progress of a case.” Abbott Labs. v. Lupin Ltd., 2011 WL 1897322, at *3 (D.Del. May 19, 2011).

         First, the Court addresses any prejudice caused to Defendants by allowing Plaintiffs to supplement the Greenberg Report. Plaintiffs assert that no prejudice will be suffered by Defendants because Plaintiffs “will likely succeed on future motions that the case proceed on declaratory judgment only” and that Plaintiffs should not have to bear the burden of Defendants “bad acts. . . .” Dkt. No. 166 at p. 17. Defendants argue that Plaintiffs' reliance on the possibility of a future declaratory judgment in Plaintiffs' favor is misplaced, but do not allege any prejudice Defendants would suffer as a result of allowing Plaintiffs to supplement the Greenberg Report. While the Court agrees that Plaintiffs' reliance on the possibility of a future declaratory judgment in their favor is immaterial to the issue at hand, Defendants' failure to allege any prejudice they would suffer as a result of the proposed supplemental expert report leads the Court to conclude that this factor weighs is favor of Plaintiffs. As a result of the Court finding that no prejudice would be caused to Defendants by allowing Plaintiffs to submit a supplemental report, the Court need not address whether any such prejudice is curable.

         Next, the Court turns to the extent to which allowing Plaintiffs to supplement the Greenberg Report would disrupt the order and efficiency of the proceedings in this matter. Although this matter has been pending for over six years and expert discovery concluded six months prior to the filing of Plaintiffs' motion, no trial date has been set and the Court finds that allowing a brief period for Plaintiffs to supplement the Greenberg Report will not substantially disrupt the final disposition of this matter. Rather, in this specific instance, the Court finds that allowing for this brief reopening of discovery to allow Plaintiffs to conduct proper testing of the Orbis Site will facilitate a full and complete trial of the claims in this matter and allow this case to reach its ultimate resolution.[8]

         Turning to the next factor, Defendants do not assert any bad faith or willfulness on behalf of Plaintiffs in failing to comply with this Court's scheduling orders. Although neither party addresses this factor directly, there is no evidence leading the Court to believe that Plaintiffs' request is motivated by any bad faith. Rather, Plaintiffs' request resulted from the Order issued in the Florida Action which highlighted ...


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