Hunt Construction Group v. Cobb Mechanical Contractors, Inc. et al

MOTION for Leave to File Sur-Reply

W.D. Tex.February 7, 2019

DEFENDANT / CROSS-PLAINTIFF COBB MECHANICAL CONTRACTORS, INC.’S MOTION FOR LEAVE TO FILE ITS SUR-REPLY BRIEF IN OPPOSITION TO HUNT’S REPLY IN SUPPORT OF ITS MOTION TO BAROPINION TESTIMONY FROM COBB’S NON-RETAINED EXPERTS-- Page 1 HOU 408938877v3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION HUNT CONSTRUCTION GROUP, INC., an Indiana corporation, Plaintiff, v. COBB MECHANICAL CONTRACTORS, INC., a Colorado corporation, and LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation, Defendants. § § § § § § § § § § § § § § § Case No. 1:CV-17-215 ______________________________________________________________________________ DEFENDANT / CROSS-PLAINTIFF COBB MECHANICAL CONTRACTORS, INC.’S MOTION FOR LEAVE TO FILE ITS SUR-REPLY BRIEF IN OPPOSITION TO HUNT’S REPLY IN SUPPORT OF ITS MOTION TO BAR OPINION TESTIMONY FROM COBB’S NON-RETAINED EXPERTS ______________________________________________________________________________ TO THIS HONORABLE COURT: COMES NOW Defendant / Cross-Plaintiff Cobb Mechanical Contractors, Inc. (“Cobb”) and respectfully requests that this Court grant it leave to file a sur-reply to Plaintiff Hunt Construction Group, Inc.’s Reply In Support Of Its Motion To Bar Opinion Testimony From Cobb’s Non-Retained Experts, the original of which is attached hereto as Exhibit I, and would show this Court as follows: I. INTRODUCTION Cobb respectfully asks this Court to grant its motion for leave to file its sur-reply in order to properly and fully respond to Plaintiff’s Reply In Support Of Its Motion To Bar Opinion Case 1:17-cv-00215-LY Document 171 Filed 02/07/19 Page 1 of 6 DEFENDANT / CROSS-PLAINTIFF COBB MECHANICAL CONTRACTORS, INC.’S MOTION FOR LEAVE TO FILE ITS SUR-REPLY BRIEF IN OPPOSITION TO HUNT’S REPLY IN SUPPORT OF ITS MOTION TO BAROPINION TESTIMONY FROM COBB’S NON-RETAINED EXPERTS-- Page 2 HOU 408938877v3 Testimony From Cobb’s Non-Retained Experts. Through its Reply, Plaintiff presents new arguments and case law that require a response by Cobb. It is only through granting leave for Cobb to file a sur-reply that the Court will have the opportunity to both hear and consider the new matters addressed by Plaintiff. II. BACKGROUND 1. On December 21, 2018, Cobb’s Designation of Non-Retained Expert Witnesses was served via email to all of counsel of record in this case (“Designation”). Therein, the Designations undeniably provide a “summary of the facts and opinions” that clearly “state the main points” of that testimony and provides enough information to “obviate the danger of unfair surprise” to Hunt. Cobb exceeded the required disclosure for non-retained expert witnesses. In fact, Cobb not only served Designations providing very specific and detailed descriptions, but also produced to Hunt opinion summaries that included all supporting documents. 2. On January 3, 2019, Plaintiff filed its Motion To Bar Opinion Testimony From Cobb’s Non-Retained Experts (“Motion”). Therein, without citing to any applicable case law, Plaintiff argued the Designations were insufficient. 4. On January 17, 2019, Defendant filed its Response to Plaintiff’s Motion To Bar Non-Retained Expert Testimony (“Response”). Going well beyond what is required by the rules, in an attempt to accommodate Plaintiff and put any dispute to rest, Cobb supplemented its Designations (“Amended Designations”) and provided an index of twenty-two key issues and sig-issues with bates ranges and pin cites to the various opinion summaries created by Cobb’s non-retained expert witnesses. 5. On January 31, 2019. Plaintiff filed its Reply In Support of Its Motion To Bar Opinion Testimony From Cobb’s Non-Retained Experts (the “Reply”). Therein, Plaintiff raised a Case 1:17-cv-00215-LY Document 171 Filed 02/07/19 Page 2 of 6 DEFENDANT / CROSS-PLAINTIFF COBB MECHANICAL CONTRACTORS, INC.’S MOTION FOR LEAVE TO FILE ITS SUR-REPLY BRIEF IN OPPOSITION TO HUNT’S REPLY IN SUPPORT OF ITS MOTION TO BAROPINION TESTIMONY FROM COBB’S NON-RETAINED EXPERTS-- Page 3 HOU 408938877v3 number of new arguments that were not previously addressed in its Motion and also misrepresented witness testimony. III. ARGUMENT AND ANALYSIS Defendant requests leave to file a sur-reply because Plaintiff raised a number of new issues that were not previously raised in their Motion. If the Court does not grant Defendant’s motion, Cobb will be deprived of the right to respond to Plaintiff’s new arguments. Federal Courts have held that “[t]he standard for granting a leave to file a sur-reply is whether the party making the motion would be unable to contest matters presented to the court for the first time in the opposing party's reply.” Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001). Numerous courts in the Fifth Circuit have ruled that it is appropriate to file a sur-reply when a movant raises new legal theories at the reply stage of a motion for summary judgment filing. See Austin v. Kroger Texas, L.P., 864 F.3d 326 (5th Cir. 2017); Perez v. Genesco Inc., No. EP-09- CV-22-PRM, 2010 WL 11602142, at *1 (W.D. Tex. Jan. 8, 2010); Vais Arms, Inc. v. Vais, 383 F.3d 287, 292 (5th Cir. 2004). This same standard has been applied to grant leave to file sur- replies in other circumstances. See Simmons v. T-Mobile USA Inc., No. H-06-1820, 2006 WL 3447684, *1 (S.D. Tex. Nov. 22, 2006) (applying the standard for granting leave to file a surreply for conditional certification); Domain Vault LLC v. Rightside Grp., Ltd., No. 3:17-CV- 0789-B, 2017 WL 4298133, at *1 (N.D. Tex. Sept. 28, 2017) (applying the standard for granting leave to file a surreply for motions to compel arbitration). Here, Plaintiff raises the following new arguments concerning: (1) misrepresentations of case law to claim that Cobb’s Amended Designation should be ignored; (2) Plaintiff has grossly misquoted and mischaracterized the testimony by John Bitner in his deposition; and (3) new claims regarding alleged failure to disclose actual opinions. To deprive Cobb of a chance to Case 1:17-cv-00215-LY Document 171 Filed 02/07/19 Page 3 of 6 DEFENDANT / CROSS-PLAINTIFF COBB MECHANICAL CONTRACTORS, INC.’S MOTION FOR LEAVE TO FILE ITS SUR-REPLY BRIEF IN OPPOSITION TO HUNT’S REPLY IN SUPPORT OF ITS MOTION TO BAROPINION TESTIMONY FROM COBB’S NON-RETAINED EXPERTS-- Page 4 HOU 408938877v3 respond by sur-reply to Plaintiff’s Reply would prevent Cobb from contesting new legal theories that Plaintiff presented to the Court for the first time in the Reply. IV. MOTION FOR LEAVE TO FILE SUR-REPLY As more fully in Defendant’s Sur-Reply Brief attached hereto, Plaintiff’s arguments advanced in their Reply for the first time are either misleading or are otherwise incorrect. Therefore, to correct Plaintiff’s baseless allegations against Defendant’s Designations and Amended Designations; to address Plaintiff’s incorrect analysis of new case law; and to further correct Plaintiff’s misrepresentation of John Bitner’s testimony, Defendant asks that this Court grant leave to file a sur-reply. V. Prayer For the foregoing reasons, Defendant respectfully requests that this Court grant it leave to file a sur-reply to Hunt’s Reply In Support Of Its Motion To Bar Opinion Testimony From Cobb’s Non-Retained Experts and that the Court order the clerk to file the sur-reply, attached hereto as Exhibit I. Case 1:17-cv-00215-LY Document 171 Filed 02/07/19 Page 4 of 6 DEFENDANT / CROSS-PLAINTIFF COBB MECHANICAL CONTRACTORS, INC.’S MOTION FOR LEAVE TO FILE ITS SUR-REPLY BRIEF IN OPPOSITION TO HUNT’S REPLY IN SUPPORT OF ITS MOTION TO BAROPINION TESTIMONY FROM COBB’S NON-RETAINED EXPERTS-- Page 5 HOU 408938877v3 Dated: February 7, 2019. Respectfully submitted, Greenberg Traurig LLP By: /s/ Joseph P. Griffith Michael L. Burnett Greenberg Traurig, LLP State Bar No. 03428700 Rene Trevino State Bar No. 24051447 1000 Louisiana Street, Suite 1700 Houston, TX 77002 Telephone: (713) 374-3580 Facsimile: (713) 374-3505 burnettm@gtlaw.com trevinor@gtlaw.com Joseph P. Griffith Greenberg Traurig, LLP State Bar No. 24045982 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 Telephone: (214) 665-3666 Facsimile: (214) 665-5966 griffithj@gtlaw.com ATTORNEY FOR DEFENDANT COBB MECHANICAL CONTRACTORS, INC. Case 1:17-cv-00215-LY Document 171 Filed 02/07/19 Page 5 of 6 DEFENDANT / CROSS-PLAINTIFF COBB MECHANICAL CONTRACTORS, INC.’S MOTION FOR LEAVE TO FILE ITS SUR-REPLY BRIEF IN OPPOSITION TO HUNT’S REPLY IN SUPPORT OF ITS MOTION TO BAROPINION TESTIMONY FROM COBB’S NON-RETAINED EXPERTS-- Page 6 HOU 408938877v3 CERTIFICATE OF CONFERENCE I hereby certify that on February 7, 2019, I conferred with Plaintiff’s attorney regarding this Motion and Plaintiff opposed the relief sought herein. /s/ Joseph P. Griffith Joseph P. Griffith CERTIFICATE OF SERVICE I hereby certify that an electronic copy of this Defendant Cobb Mechanical Contractors, Inc.’s Motion For Leave To File Its Sur-Reply Brief In Opposition To Hunt’s Reply In Support Of Its Motion To Bar Opinion Testimony From Cobb’s Non-Retained Experts was filed with the Court and thereby served via the Court’s ECF system on February 7, 2019 to all of counsel of record in this case. /s/ Joseph P. Griffith Joseph P. Griffith Case 1:17-cv-00215-LY Document 171 Filed 02/07/19 Page 6 of 6