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Arcelormittal Indiana Harbor LLC v. Amex Nooter, LLC

United States District Court, N.D. Indiana, Hammond Division

June 8, 2017

AMEX NOOTER, LLC, Defendant.



         This matter is before the Court on Amex Nooter, LLC's Motion for Sanctions [DE 125], filed by Defendant Amex Nooter, LLC (“Amex Nooter”) on March 22, 2017, and ArcelorMittal's Motion to Strike Amex Nooter's Reply in Support of its Motion for Sanctions or, in the Alternative, Motion for Leave to File a Sur-Reply [DE 133], filed by Plaintiffs ArcelorMittal Indiana Harbor LLC and ArcelorMittal USA LLC (collectively “ArcelorMittal”) on April 20, 2017. The motions were fully briefed on May 11, 2017. For the reasons set forth below, the Court denies the Motion for Sanctions.


         In the Motion to Strike, ArcelorMittal asks the Court to strike new arguments raised by Amex Nooter for the first time in its reply brief in support of its Motion for Sanctions. As the Court has previously recognized in this case, notably on a motion of Amex Nooter to strike new material raised for the first time in a reply brief of ArcelorMittal, “new legal and factual argument, raised for the first time in the reply brief, is not properly before the Court.” (ECF 53, p. 2). The Court finds that Amex Nooter provides new and substantive factual support for its Motion for Sanctions for the first time in the reply brief-factual support that should have been raised in the opening brief to attempt to demonstrate prejudice and to allow ArcelorMittal an opportunity to respond. The reason parties are forbidden from raising new arguments in a reply brief is that “the adverse party typically has no opportunity to respond and the record on that issue therefore is developed insufficiently for consideration.” Tokarz v. Ventaire Corp., 2:03-CV-149, 2006 WL 1793602, at *4 (N.D. Ind. 2006) (quoting Aircraft Gear Corp. v. Marsh, No. 02 C 50338, 2004 WL 2222262, at *3 (N.D. Ill. 2004)). Accordingly, the Court grants the Motion to Strike and denies the alternative request for leave to file a Sur-Reply.

         First, other than with broad, general statements, Amex Nooter did not attempt to explain the importance of any of 41 pages of documents at issue in its opening motion or otherwise explain substantively how it was prejudiced by the documents. Thus, the Court disregards the chart, on page seven of Amex Nooter's reply brief, that purports to show how the contents of the documents at issue differ from deposition testimony in this case. These purported discrepancies should have been identified in the opening motion to give ArcelorMittal an opportunity to respond to Amex Nooter's assertions. For the same reason, the Court disregards the argument regarding the importance of some of the documents (the Near Miss Incident Reports) in relation to the testimony of Stephen Horvath and of Robert Creese. See (ECF 132, pp. 5-6).

         Similarly, Amex Nooter asserts for the first time in the reply brief that the documents at issue are responsive to Amex Nooter's Request for Production No. 22. In its opening brief, Amex Nooter identified only Request for Production No. 26 as related to these documents; thus, ArcelorMittal's response brief addressed only Request No. 26. The Court and ArcelorMittal cannot be expected to search for discovery requests that might be at issue; it is Amex Nooter's burden to identify in the opening brief those written discovery requests to which it contends the withheld documents were responsive. The failure to do so constitutes a waiver of those arguments, and the Court strikes the references to Request for Production No. 22 in the reply brief.


         Amex Nooter asks the Court to sanction ArcelorMittal for not producing to Amex Nooter earlier in discovery 41 pages of documents that ArcelorMittal gave to its testifying expert, Dr. Donald J. Hoffman, in July 2013 when Dr. Hoffman was a consulting expert, that Dr. Hoffman considered in authoring his February 8, 2017 expert report, and that were not disclosed to Amex Nooter until Dr. Hoffman's report. As a sanction, Amex Nooter asks the Court to bar Dr. Hoffman from testifying on behalf of ArcelorMittal or, in the alternative, to extend Amex Nooter's expert disclosure deadline until after (a) ArcelorMittal identifies the authors of the newly produced documents; (b) Amex Nooter redeposes ArcelorMittal employees Robert Creese, William Emery, and Frank Peters on the newly produced documents; and (c) Amex Nooter deposes for the first time ArcelorMittal employees Veronica Chambers, Kristin Miller, Larry Vickery, and the authors of the newly disclosed material. 1. Background On April 3, 2013, a fire occurred at Blast Furnace No. 3, a part of ArcelorMittal's Indiana Harbor Facility. As part of its investigation of the fire, ArcelorMittal retained counsel and a consulting expert-Donald J. Hoffman, Ph.D. ArcelorMittal gave Dr. Hoffman a number of materials in June and July 2013, including the documents that are the subject of the instant motion.

         On May 15, 2015, ArcelorMittal filed this lawsuit against Amex Nooter, alleging that the improper actions of Amex Nooter resulted in the April 3, 2013 fire that caused injuries to two Amex Nooter employees and property damage and other losses sustained by ArcelorMittal.

         On August 19, 2015, ArcelorMittal served Amex Nooter with its Federal Rule of Civil Procedure 26(a)(1) initial disclosures, which ArcelorMittal then supplemented pursuant to Federal Rule of Civil Procedure 26(e) on May 31, 2016, August 19, 2016, and September 2, 2016.

         During discovery, Amex Nooter propounded several sets of written discovery on ArcelorMittal. The fact discovery deadline was August 19, 2016. On August 16, 2016, Amex Nooter served ArcelorMittal with a Third Set of Requests for Production of Documents; ArcelorMittal objected to the requests in their entirety as untimely because they were served three days prior to the close of discovery.

         On February 8, 2017, ArcelorMittal disclosed to Amex Nooter its designated testifying expert, Dr. Hoffman, and tendered his written report. Dr. Hoffman's report identified the file materials and documents that he relied on in performing his analysis and rendering his opinions, writing: “In performing this analysis we relied upon the following file materials and references: . . . .” (ECF 126, p. 1). That same day, February 8, 2017, Amex Nooter requested from ArcelorMittal a copy of all materials that Dr. Hoffman contends he relied on in preparing his report. On March 14, 2017, ArcelorMittal identified approximately 1320 pages of materials relied on by Dr. Hoffman; of those pages, ArcelorMittal produced 41 pages that had not previously been produced to Amex Nooter through discovery.

         Amex Nooter's motion incorrectly implies that all 1320 pages of documents had not been previously produced to Amex Nooter. See (ECF 125, ¶ 3); (ECF 126, p. 2). In ArcelorMittal's March 24, 2017 correspondence providing the requested documents, ArcelorMittal explained that the documents in Dr. Hoffman's files were bates labeled Arcelor 1077-2397 and that six categories of documents that made up those 1320 pages were not being produced because they had already been produced in this litigation. The 41 pages of documents that were newly produced are:

1. An undated “Initial Report” (Arcelor 1958-1959)
2. A second undated report (Arcelor 2096-2098)
3. An undated “time line leading up to the fire on the H3 flare stack cabinet” (Arcelor 2182-2183)
4. Handwritten notes dated April 19, 2013 and captioned “Fact Finding” (Arcelor 2184-2186)
5. Handwritten notes on the April 4, 2013 and April 9, 2013 Arcelormittal USA Indiana Harbor Near Miss Incident Reports (Arcelor 2187-2198, 2199-2202)
6. ArcelorMittal Safety Lockout Procedures Form for the IH-4 Excess Gas Bleeder System dated April 26, 2013 (Arcelor 2203-2208)
7. Larry Vickery, ArcelorMittal Indiana Harbor West Energy Control Procedure Writer April 26, 2013 e-mail transmitting “proof of correction action resolution” (Arcelor 2209)
8. ArcelorMittal Safety Lockout Procedures Form for the IH-3 Excess Gas Bleeder System dated April 23, 2013 ...

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