The Court treats the motion as timely underneath Federal Rule of Civil Procedure 6 because it obviously could not have been filed by the October 14th deadline and was filed mere days after Defendant’s affidavit and deposition errata first came to Plaintiff’s attention. Plaintiff’s preliminary reply was due and well timed filed on December 1st. Plaintiff’s premature amended December 2nd reply brief was filed to right Plaintiff’s “misstatement” in his authentic reply concerning Defendant’s discovery requests. However, Plaintiff neither sought nor obtained the Court’s leave to file an untimely amended reply brief, and the Court doesn’t sua sponte find “excusable neglect” under Rule 6 to permit Plaintiff’s late reply to appropriate minor details in regards to the parties’ discovery that were misstated due to Plaintiff’s counsel’s personal failures.Accordingly, the Court STRIKES Plaintiff’s amended reply temporary. Accordingly, the Court agrees with Plaintiff that Edward Lee’s report, testament, and opinion relating to whether the steel joists met the AWS standards is irrelevant and that his inspection methodology isn’t reliably probative of whether the joists met SJI standards.
Simon Solorio’s opinion that the joists are structurally poor, due to this fact, is not supported by any substantial evidence. In sum, the Court GRANTS Plaintiff Vulcraft’s movement to exclude the opinions, testament, and reports of Edward Lee, Oscar Barrera, Omar Anzaldua, and Eloy Arredondo. These 4 witnesses’ opinions, testimony, and reviews shall be excluded from the proof on this case. In brief, each side seek to exclude vital portions of the opposing side’s proof, Plaintiff Nucor Corporation d/b/a Vulcraft – Texas asserts that it is entitled to summary judgment on its claims, and Defendant Amador Requenez d/b/a Valley Welding Services asserts that it must be designated the plaintiff for trial. In other orders, the Court denied Valley Welding’s motion to exclude sure of Plaintiff’s proof and dismissed Plaintiff’s claims towards Defendants D. Wilson Construction Company, Great American Insurance Company, and Great American Insurance Company of New York pursuant to those events’ stipulation. Dist., 220 F.3d 380, 386 (5th Cir. 2000); see Winzer v. Kaufman Cty., 916 F.3d 464, 472 (5th Cir. 2019) (“ district court docket might refuse to contemplate statements made in an affidavit that are so markedly inconsistent with a prior statement as to represent an apparent sham.”); Hackett v. UPS, 736 Fed.Appx.
Mandates a discovering that no genuine problem of fact exists.” Courts “will not assume ‘in the absence of any proof . That the nonmoving celebration may or would show the mandatory information,’ and will grant summary judgment ‘in any case the place important evidence is so weak or tenuous on an essential fact that it couldn’t help a judgment in favor of the nonmovant.’” The Court is underneath no responsibility to sift through the whole report seeking evidence to support the nonmovant’s opposition to summary judgment. Although Plaintiff’s motion to strike was filed after Plaintiff’s movement for summary judgment was submitted to the Court for consideration, the Court should handle Plaintiff’s motion to strike before contemplating abstract judgment as a result of it assaults the available evidence earlier than the Court underneath Federal Rule of Civil Procedure 56.
& Roofing, L.L.C., 910 F.3d 221, 227 (5th Cir. 2018); see Cadena v. El Paso County, 946 F.3d 717, 725 (5th Cir. 2020) (“ffidavits setting forth final or conclusory facts and conclusions of legislation are insufficient to either support or defeat a movement for summary judgment.”). Celotex Corp., 477 U.S. at 325; see Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (“Summary judgment must be granted in opposition to a party who fails to make a exhibiting enough to determine the existence of a component important to that party’s case, and on which it’ll bear the burden of proof at trial.”). No. 45-1 at fifty five (citing Dkt. No. 45-2 at 46-48) (discussing the deposition reveals including the “Vulcraft Terms and Conditions of Sale” document which Defendant testified was a part of his purchase order with Vulcraft), with Dkt.
Even if such an exception did exist, the Court holds that Plaintiff’s argument for summary judgment would not be within its scope. Plaintiff contends that, “lthough Valley Welding characterizes its claims as sounding in contract, the crux of its claim is for restitution of overpayments.” Plaintiff’s contention is wholly unsupported by the record. Defendant Valle y Welding’s live counterclaims are explicitly two counts for breach of contract for Plaintiff’s alleged failure to construct the metal joists based on project specifications and SJI requirements and one depend for a breach of contractual express guarantee. Plaintiff doesn’t cite any allegation by which Defendant seeks reimbursement for overpayment or asserts an equitable declare.
Defendant testified that he did not personally conduct any inspections multiple instances, with no caveats or qualifications.Defendant’s response temporary impermissibly attempts to produce explanatory context that’s not current in either Defendant’s testimony or his affidavit. In summary, Defendant’s motion is GRANTED IN PART solely to the extent that Julian Hamilton’s repudiated conclusion paragraph in his professional report have to be excluded. Otherwise, Defendant’s movement to exclude professional testament is DENIED. The Court now turns to the subsequent evidentiary issue before contemplating abstract judgment. The Court is basically called upon to evaluate whether or not Julian Hamilton’s common unfamiliarity with SJI requirements renders him unqualified to opine on whether or not joists met SJI standards. But “Rule 702 does not mandate that an expert be highly certified in order to testify about a given issue.
Accordingly, the Court DENIES Plaintiff’s movement for abstract judgment to the extent Plaintiff seeks favorable abstract judgment on the problem of whether Defendant has evidence of his damages. Plaintiff subsequent argues that the Court should strike paragraph three of Defendant’s affidavit as a outcome of the affidavit claims that a representative fonda rosa of Plaintiff, Amy Castillo, informed Defendant that the steel joists would meet the project specs or AWS welding standards, contradicting Defendant’s testimony. Defendant’s response is similar to the argument Defendant made with respect to his deposition errata concerning what Amy Castillo told him.
Plaintiff further argues that Roberto Quintero conflated the AWS and SJI standards in his report and reached conclusions that are “wholly implausible, ” so Mr. Quintero’s methodology couldn’t be reliable. Plaintiff particularly argues that Mr. Quintero by no means identified a weld in his report “that was acceptable under SJI but failed under AWS, ” however that some tack welds should have failed to meet AWS standards whereas assembly SJI requirements. However, as Plaintiff’s personal professional explains, a tack weld is merely momentary, equivalent to connect, used to carry joists collectively “until the ultimate structural welds are made.” It is subsequently unclear why Mr. Quintero would ever inspect or evaluate a tack weld.