United States District Court, D. South Carolina, Florence Division
KENNETH D. DIPPEL, Plaintiff,
SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendants.
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE.
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.
Motions Regarding Judicial Notice and Constitutionality of
Peer Review Process
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. 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.
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
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 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.
Motions to Strike
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.
parties cite to Fed.R.Civ.P. 12(f). However, a motion to
strike matter other than pleadings 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
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 (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.
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.
argues that the Memorandum from NFIP Clearinghouse to WYO
Principal Coordinators and NFIP Serving Agents 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.
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.
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.
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, 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.
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.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)” 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 ...