The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is Plaintiff's Motion to Leave to Add Additional Trial Exhibits (Doc. 183). Specifically, Plaintiff requests the addition of nine exhibits to their trial exhibits list as Plaintiff believes that the exhibits are relevant to the fireproofing tests performed by Patriot Engineering. Plaintiff further argues that the exhibits were originally provided in discovery and that Defendants will not be able to establish a foundation for Patriot's tests without the exhibits. Plaintiff subsequently filed a Supplement to Plaintiff's Motion for Leave to Add Additional Trial Exhibits (Doc. 184) in which it seeks to add an additional page of the 1996 BOCA building code and an Application for a Building Permit including the approval of the application and an affidavit related to the permit.
In response to the Motion (Doc. 183) and Supplement (Doc. 184), Defendant J.P. Murray Company filed a Response to Plaintiff's Motion for Leave to Add Additional Trial Exhibits and Motion in Limine to Exclude Evidence Regarding Failure to Discover Defects and Evidence Regarding Failure to Comply with BOCA Code During Inspections (Doc. 187). In its Response, Defendant argues that Piasa should not be allowed to add exhibits to its trial list because it failed to include them in the Final Pretrial Order and disregarded its responsibilities in cooperating with Defendants in preparing said Order. Further, Defendant argues that the exhibits are not relevant to this case as the failure to discover defects is irrelevant. In addition to its Response, Defendants sought an Order in limine barring Piasa from presenting evidence or argument that Piasa should be absolved of some or all of its liability because Murray Company failed to discovery the defects during construction and barring Piasa from presenting any evidence or argument that Murray Company or Patriot were required to comply with the BOCA code during their fireproofing inspections.
Plaintiff filed a Reply in response to Defendant's opposition memorandum (Doc. 188). Plaintiff claimed that the exhibits were discussed extensively in an additional deposition allowed by this Court. Plaintiff also argued that it did faithfully participate in the development of the Final Pretrial Order and that J.P. Murray's performance during the pre-trial phase was less than perfect.
Plaintiff also filed a Motion to Strike, and Alternatively for Additional Time to Respond to J.P. Murray Company's (Late) Motion in Limine (Doc. 189). In it, Plaintiff argued that the Motion in Limine was untimely under the Final Pretrial Order.
Plaintiff, in addition to its motion to supplement, has filed a motion to strike that part of Defendant's Response which Defendant has labeled as a motion in limine. In Defendant's Response, Defendant requests that the Court issue an Order in limine barring Plaintiff from producing evidence or arguments at trial regarding BOCA requirements and whether Plaintiff's liability should be resolved due to Defendant's failure to discover the defects in the fireproofing during construction. In Response to that request, Plaintiff argues that Defendant's motion in limine should be stricken as untimely. Specifically, Plaintiff argues that Defendant filed an untimely motion under the terms of the Final Pretrial Order and failed to seek leave from the Court in filing a late motion. Plaintiff argues that the Final Pretrial Order (Doc. 162) required that Motions in Limine be filed no later than twenty days before the Final Pretrial Conference.
However, the Court finds that Plaintiff has misinterpreted the Final Pretrial Order. While the relevant section of the Final Pretrial Order does require that motions in limine shall be filed no later than twenty days before the Final Pretrial Conference, the section goes on to state that "[d]ue to the nature of motions in limine, failure to file said motions by this deadline generally will not prejudice a party's ability to move in limine prior to the jury's impanelment. Later-filed motions, however, may be stricken if their consideration would delay the timely start of the trial." (See Doc. 162 at XI(E)). The Order does not specifically prohibit motions in limine being filed after the deadline nor does it require that leave be sought by a party seeking to file a motion after the twenty day time limit. Further, as the trial has been moved from its November trial setting and is now scheduled for April 18, 2011, the Court finds that consideration of Defendant's motion in limine would not delay the timely start of this trial. Therefore, the Court will consider Defendant's motion in limine as timely and accordingly DENIES Plaintiff's motion to strike (Doc. 189). The Court further DENIES Plaintiff additional time to respond to the motion. As the Final Pretrial Order clearly allows for a motion in limine to be filed at this time, Plaintiff had ample time to file a timely response.
B. Motion to Supplement Trial Exhibits
As to Plaintiff's Motion for Leave to Add Additional Trial Exhibits (Doc. 183), Plaintiff seeks to add several exhibits which it alleges are relevant to the testing of the fireproofing performed by Patriot Engineering. Plaintiff argues that Defendant J.P. Murray will be unable to establish a foundation for the tests and reports without the trial exhibits. Plaintiff claims that it inadvertently failed to include the additional exhibits, but that some of the proposed exhibits were used heavily in the subsequent depositions that Defendant was allowed to pursue. The Court also notes that Plaintiff has withdrawn its request to add Exhibit 144.
However, the Court finds that Plaintiff is once again ignoring the rules set forth by this Court. Plaintiff neglected to file its exhibits with the Final Pre-Trial Order as instructed by this Court. See LOCAL RULE 16.2(b).
Order, the parties were to list and include all exhibits. Plaintiff apparently failed to include all of exhibits, even though it was given ample time to do so.
There was a discussion of the matter of cooperation and pretrial order preparation at the final pretrial conference and the Court finds the Defendant's position to be the creditable one. Plaintiff failed to adhere to this Court's expectation of "faithful adherence to the rule requiring cooperation between the parties for completion of the Final Pretrial Order." As explained by the Defendant, Plaintiff "blatantly disregarded" its duty to cooperate with Defendant in preparing the Order. Plaintiff deliberately ignored Defendant even after Defendant contacted Plaintiff on several occasions in order to discuss drafting the Order. Defendant emailed Plaintiff on at least two occasions and received no response; after Defendant's third email request Plaintiff responded, however, Plaintiff failed to complete much of the requirements for the Order. While Plaintiff tries to point the finger at Defendant, arguing that Defendant was the one who was less than helpful in the pretrial phase and that Plaintiff did expend effort in preparing the Order, the Court is not easily swayed by Plaintiff's arguments given its past lack of civility throughout the course of this case. This Court has already admonished Plaintiff once before for being ...