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Dippel v. South Carolina Farm Bureau Mutual Insurance Co.

United States District Court, D. South Carolina, Florence Division

July 26, 2019

KENNETH D. DIPPEL, Plaintiff,
v.
SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendants.

          ORDER

          THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         In this action, Plaintiff, who is proceeding pro se, alleges that Defendant breached its insurance contract with Plaintiff and acted in bad faith when it denied Plaintiff's claim for flood damage to his property. Numerous motions are pending: Plaintiff's Motions to Take Judicial Notice to Declare Undisputed Facts and to Declare the Peer Review Process Unconstitutional and Unlawful (ECF Nos. 92, 188), Defendant's Motion to Strike (ECF No. 185), Plaintiff's Motions for Sanctions (ECF Nos. 196, 197), and Plaintiff's Motion to Strike (ECF No. 198). This case was referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(e) after counsel for Plaintiff was relieved and Plaintiff informed the court that he wished to proceed pro se.

         II. DISCUSSION

         A. Motions Regarding Judicial Notice and Constitutionality of Peer Review Process

         These motions involve a Structural Engineering report (“the Donan Report”) created by Chirstopher Scallion, P.E., with Donan Engineering Company, Inc. which was retained by Defendant at Plaintiff's request when Defendant was adjusting Plaintiff's flood insurance claim. The Donan Report and discovery relating to its creation have already been the subject of several motions in this action.[1] Through discovery, Plaintiff learned that the Donan Report went through a peer review process, which led to some changes to the final draft provided to Defendant for their purposes of adjusting Plaintiff's claim. Herb Goff, P.E., CFEI, Donan's General Manager, avers that Donan generated a total of seven draft versions of the Donan Report related to Plaintiff's claim. Goff Aff. ¶ 4(a) (ECF No. 96-2). He also lists the drafts in the order they were created along with bates No. to identify when each draft was created. Goff Aff. ¶ 4(b). Donan and Scallion also attach a copy of the letter from counsel for Defendant to Plaintiff's former counsel producing copies of the seven drafts. Groves Letter and Attachments (ECF No. 96-1). Despite this production, Plaintiff believes that Scallion and Donan are withholding the original, pre-peer review Donan Report. Plaintiff also argues that Scallion or Donan have destroyed or are concealing the laptop used by Scallion at the time he created the Donan Report. Plaintiff asks the court to take judicial notice of these assertions.

         Plaintiff argues that “FRE 201(c) . . . mandates this Honorable Court to conduct an in person hearing to take judicial notice.” Pl. Resp. p. 2 (ECF No. 112). Subsection (c) states that the court “may take judicial notice on its own [ ] or must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed.R.Evid. 201(c). The rule makes no mention of a requirement that a court hold an in person hearing on this issue. Further, subsection (b) sets forth the kinds of facts that may be judicially noticed: “the court may judicially notice a fact that is not subject to reasonable dispute because it [ ] is generally known within the trial court's territorial jurisdiction [ ] or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). As stated in the Advisory Committee Notes to Rule 201, a “tradition of circumspection” surrounds judicial notice of adjudicative facts, and courts should exercise caution in taking judicial notice, doing so only when the matter is beyond reasonable controversy. Fed.R.Evid. 201(b) advisory committee note; see In re Harmony Holdings, LLC, 393 B.R. 409, 412-13 (Bankr.D.S.C.2008). It is safe to say that the facts for which Plaintiff seeks judicial notice are far from beyond reasonable controversy. As such, Plaintiff's motion is denied to the extent he seeks judicial notice.

         Plaintiff also argues that the peer review process used by Donan during the drafting of the Donan Report is unconstitutional and unlawful and asks the court to “declare” it as such, relying on Raimey v. Wright Nat. Flood Ins. Co., 76 F.Supp.3d 452 (E.D.N.Y. 2014). However, Raimey does not address the constitutionality or lawfulness of the peer review process used by engineering firms and, in fact, explicitly states

This Court does not hold that the peer review process as a methodology is unsound, flawed, or fraudulent. To the extent that any aspect of the November 7 Order[2] could be read to imply that, this Court makes clear that the concept of peer review is not being placed into question by this Court. Further, this Court is not holding that an individual peer review resulting in a change of conclusions from the original draft is inherently wrong or fraudulent. In some cases, it well may be that the initial examiner made mistakes that should be corrected upon review.

Id. at 471. In Raimey, the original draft and final draft of the report at issue contained “completely divergent” conclusions, In re Hurricane Sandy Cases, 303 F.R.D. at 21, and the original draft was not produced in discovery. Id. at 19. The district court affirmed the magistrate judge's award of sanctions pursuant to Fed.R.Civ.P. 37 and the order that all defendants in all Hurricane Sandy cases produce all copies of reports and drafts of reports not previously produced. Raimey, 76 F.Supp.3d at 472, 477. Plaintiff cites to no authority supporting a conclusion that the peer review process is unconstitutional or unlawful. Accordingly, Plaintiff's motion is denied.

         B. Motions to Strike

         Both parties seek to strike certain aspects of the other's briefings in this case. Defendant seeks to strike four documents filed by Plaintiff in opposition to its motion for summary judgment and in support of his own motion for summary judgment, and Plaintiff seeks to strike any reference by Defendant of a pre-existing on site drainage problem or improper grading and any apparent disagreement with Plaintiff regarding the amount of rain that fell during the rain and flooding event at issue in this case.

         Both parties cite to Fed.R.Civ.P. 12(f). However, a motion to strike matter other than pleadings[3] is not permitted under Federal Rule of Civil Procedure 12(f), insofar as that rule refers only to striking “pleadings.” See Anusie-Howard v. Todd, 920 F.Supp.2d 623, 627 (D.Md.2013), aff'd. 615 Fed.Appx. 119 (4th Cir.2015). Thus, Rule 12(f) is not applicable here. Other rules within the Federal Rules of Civil Procedure allow for a court to strike evidence from the record. Specifically, Fed.R.Civ.P. 37(c)(1) states that “if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use the information or witness to supply evidence on a motion, at a hearing, or at a trial unless the failure was substantially justified or is harmless.”

         Defendant moves to strike (1) Memorandum from NFIP Clearinghouse to WYO Principal Coordinators and NFIP Serving Agents (ECF No. 177 p. 22; ECF No. 178-2 p. 3); (2) Chris Scallion-Donan Discrepancies & Evidence of Alteration of the Report[4] (ECF No. 177 pp. 73-80; ECF No. 178-2 pp. 54-61); (3) Pro-Lab Certificate and Report of Mold Analysis dated April 24, 2018 (ECF No. 177-2 pp. 49-56; ECF No. 178-4 pp. 46-53; and (4) Letter/Report from William C. Forbes dated March 26, 2019 (ECF No. 177-2 pp. 5-44; ECF No. 178-4 pp. 1-41).

         Defendant argues that Plaintiff failed to submit any of these documents in response to Defendant's discovery requests nor supplement his responses with these documents, as required by Fed.R.Civ.P. 26(e). Defendant asserts that the first time it became aware of these documents is when Plaintiff submitted them in opposition to Defendant's motion for summary judgment. Plaintiff does not dispute that he did not provide these documents in his discovery responses to Defendant. Rather, he argues either it was not necessary to disclose them in discovery, r good cause exists for disclosing them when he did, or the late disclosure is harmless.

         Plaintiff argues that the Memorandum from NFIP Clearinghouse to WYO Principal Coordinators and NFIP Serving Agents[5] is readily available online to anyone and discovery is not required when documents are readily obtainable by the other party. However, despite whether the document was readily available online, Plaintiff failed to disclose it in response to Defendant's Interrogatory 11:

Set forth a list of any and all evidence, of whatever nature, form, and kind, which Mr. Dippel believes provides support to his position that Mr. Dippel's insured property has sustained a “direct physical loss by or from flood” entitling him to the $250, 000.00 maximum building replacement coverage limits of the South Carolina Farm Bureau Flood Policy.

         Def. Interrogatories (ECF 185-1). Plaintiff also argues that he has submitted this FEMA memorandum in various court filings, citing ECF Nos. 121 and 133, and his failure to disclose it in discovery is harmless because the memorandum is issued by FEMA to Defendant as a WYO company and is binding on Defendant because it contains instructions for how to handle flood claims. Defendant fails to show how this document setting forth the appropriate dates of loss for South Carolina is harmful. Thus, Defendant's motion to strike is denied as to this document.

         The Chris Scallion-Donan Discrepancies & Evidence of Alteration of the Report is a document drafted by Plaintiff that includes his observations regarding the evidence in the case, namely the Donan Report. The document is akin to an additional memorandum in opposition to Defendant's motion for summary judgment and in support of Plaintiff's own motion for summary judgment. It is not the type of document that must be disclosed in discovery. Therefore, Defendant's motion to strike is denied as to this document as well.

         Defendant also seeks to strike the Pro-Lab Certificate and Report of Mold Analysis dated April 24, 2018. Plaintiff does not dispute that he did not provide this document during discovery. He argues that it is not an expert report and it is material to this litigation. He also argues that “at no time prior to Defendant's motion for summary judgment did the Defendant[] seek any additional discovery.” Pl. Motion to Strike p. 5 (ECF No. 186). However, this lab report is clearly responsive to a No. of Defendant's Requests for Production[6], which were served on Plaintiff in August of 2016. Def. Discovery Requests (ECF No. 185-1). Pursuant to Fed.R.Civ.P. 26(e), Plaintiff has a duty to supplement his discovery responses. It is not the duty of the requesting party to resubmit its discovery requests. As set forth above, “if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use the information or witness to supply evidence on a motion, at a hearing, or at a trial unless the failure was substantially justified or is harmless.” Plaintiff makes no argument that his failure to provide this information was substantially justified or that it is harmless. Thus, Defendant's motion to strike is granted as to the Pro-Lab Certificate and Report of Mold Analysis dated April 24, 2018.

         Finally, Defendant seeks to strike the Letter/Report from William C. Forbes dated March 26, 2019. In this Letter, William C. Forbes, Jr., P.E., D.E.E., senior principal engineer with Forensic Analysis & Engineering Corporation (FAEC), states that FAEC was retained on February 15, 2019, to investigate the causation of the damage to Plaintiff's property. Letter/Report from William C. Forbes dated March 26, 2019 (ECF No. 177-2 pp. 5-44). Forbes sets forth the specifics of the project assignment, the documents and photographs he reviewed, his onsite observations, the research he conducted, and the opinions he reached based upon his investigation. He also attached to the letter his Curriculum Vitae and “Rule 26 Disclosure.” In other words, Forbes provided an expert report.[7]The Fifth Consent Amended Scheduling Order (ECF No. 43), filed January 23, 2018, provides an expert witness deadline for Plaintiff of March 3, 2018. Forbes was not disclosed at that time. In fact, as stated in the letter, he was not retained until February 15, 2019. In response to Defendant's argument regarding the timeliness of this report under the scheduling order, Plaintiff notes that the Fifth Amended Scheduling Order was filed before this case was transferred to the undersigned and the scheduling order was no longer in effect once that transfer occurred. He argues that under “Rule 26(B)(viii)”[8] disclosure rules do not apply to a proceeding ancillary to a proceeding in another court and, thus, should not apply here. However, the rule cited by Plaintiff applies only to initial disclosures, and the automatic transfer of this case ...


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