Joseph, DVM v. Dylan Mechanical

• Court: Superior Court of Guam
• Decided: February 23, 2021
• Docket: CV0436-19
• Status: Unknown

Opinion

FILED SUEJOR C0 RT 1 F GUAM

OURT 4 5 6 7

8 9 IN THE SUPERIOR COURT OF GUAM 10 11 JOEL JOSEPH, DVM, CIVIL CASE NO.: CV0436-19 12 Plaintiff, 13 14 vs. DECISION AND ORDER 15 Re: Plaintiff’s Motion to Strike and 16 Disregard; Defendant’s Motion to File 17 Supplemental Memorandum. 18 DYLAN MECHANICAL 19 CONSTRUCTION SERVICES, INC., 20 Defendant. 21 22 INTRODUCTION 23 This matter came before the Honorable Judge Anita A. Sukola on February 15, 24 2021, upon Plaintiff’s Motion to Strike and Disregard the Declaration of Harold D. Cullick 25 and Defendant’s Motion for Leave to File Supplemental Memorandum in Support of 26 Cross Motion for Summary Judgment. The Plaintiff, Joel Joseph, DVM, (“Joseph”) is 27 represented by Mitchell F. Thompson, Esq. The Defendant, Dylan Mechanical 28 Construction Services, Inc., (“Dylan”), is represented by Joseph C. Razzano, Esq. For the 29 reasons set forth below, having reviewed the moving papers of both parties, the Court 30 DENIES Plaintiff’s Motion to Strike and Disregard the Declaration of Harold D. Cullick 31 and DENIES Defendant’s Motion for Leave to File Supplemental Memorandum in 32 Support of Cross Motion for Summary Judgment.

Page 1 of 7 CV0436-19, Joel Joseph vs. Dylan Mechanical Construction Services, Inc. Decision and Order (Motion to Strike; Motion for Leave to File Supplemental Memorandum). 1 BACKGROUND 2 3 Joseph filed a complaint in this matter on April 15, 2019. See Compi. (Apr. 15, 4 2019). On May 7, 2019, Dylan filed a timely answer and counter claim. See Answer and 5 Counterclaim. (May 7, 2019). On May 9, 2019, Dylan filed an amended answer and 6 counterclaim. $ç Amend. Answer and Counterclaim (May 9, 2019). Dylan filed a second 7 amended answer and counterclaim on July 11, 2019. Second Amend. Answer and $ Counterclaim (July 11, 2019). Joseph filed an Amended Complaint and Counterclaim on 9 December 12, 2019, which was answered by Dylan on December 27, 2019. See First 10 Amend. Compl. (Dec. 12, 2019); Answer to PL’s first Amend. Compi. (Dec. 27, 11 2019). Joseph filed a Reply to Dylan’s Amended Counterclaim on January 10, 2020. Pl.’s 12 Reply to Def.’s Amend. Counterclaim (Jan. 10, 2020). 13 On October 12, 2020, Joseph a filed a Motion for Summary Judgment. See Pl.’s 14 Mot. for Summ. J. (Oct. 12, 2020). On November 9, 2020, Dylan filed their Opposition to 15 the Motion for Summary Judgment which was accompanied by a Declaration from Harold 16 D. Cullick, the principal owner and President of Dylan. Opp’n to Pl.’s Mot. for Summ. 17 J. (Nov. 9, 2020); See also Decl. of Harold D. Cullick (Nov. 9, 2020). Joseph filed the 1$ instant Motion to Strike and Disregard the Declaration of Harold D. Cullick, on November 19 23, 2020, arguing that the Declaration was inadmissible or inextricably connected to 20 inadmissible material. See Pl.’s Mot. to Strike (Nov. 23, 2020). 21 Dylan’s counsel, Tim Roberts, Esq., filed a Motion to Withdraw as Counsel on 22 December 3, 2020, which was unopposed, and granted by this Court. See Mot. to 23 Withdraw as Counsel (Dec. 3, 2020). Dylan was given sixty (60) days to obtain new 24 counsel and new counsel would be allowed to file motions for leave to file supplemental 25 documents. See Mm. Entry (Dec. 3, 2020). Dylan hired current counsel, Joseph C. 26 Razzano, and filed his Opposition to the Motion to Strike on January 11, 2021. See Opp’n 27 to Mot. to Strike (Jan. 11, 2021). Joseph filed a Reply on January 19, 2021. See Reply 28 Memo. (Jan. 19, 2021). 29 Dylan filed a Motion for Leave to File a Supplemental Memorandum in Support of 30 Cross Motion for Summary Judgment on January 27, 2021. See Mot. for Leave to File 31 Suppl. Memo. (Jan. 27, 2021). Joseph filed on opposition to the motion on February 4, 32 2021. See Opp’n to Pl.’s Mot. for Leave to File Suppl. Memo. (Feb. 4, 2021). Dylan filed

Page 2 of 7 CV0436-19, Joel Joseph vs. Dylan Mechanical Construction Services, Inc. Decision and Order (Motion to Strike; Motion for Leave to file Supplemental Memorandum). 1 a reply to that opposition on February 10, 2021. Reply to Opp’n to Pl.’s Mot. for 2 Leave to File Suppl. Memo. (Feb. 10, 2021). The parties stipulated to waive oral 3 arguments on all outstanding motions, and the Court subsequently took these matters 4 under advisement. Stip. to Waive Oral Arguments (Feb. 11, 2021). 5 6 DISCUSSION 7

$ I. Motion to Strike 9 The Guam Rules of Civil Procedure provide that “[s]upporting and opposing 10 affidavits shall be made on personal knowledge, [and] shall set forth such facts as would 11 be admissible at trial.” GRCP 56(e). The Guam Rules of Civil Procedure are based on 12 their federal counterparts, and as such, cases interpreting the Federal Rules of Civil 13 Procedure are persuasive. See Cruz v. Critz, 2005 Guam 3 ¶ 9; see also People v. Hall, 14 2004 Guam 12 ¶ 18; see also Fajardo v. Liberty Hottse Guam, 2000 Guam 4 ¶ 17. 15 federal Courts have found “[t]he Rules requirement that affidavits be made on 16 personal knowledge is not satisfied by assertions made ‘on information and belief.” 17 Patterson v. County of Oneida, N.Y., 375 f.3d 206, 219 (2nd Cir. 2004). further, “legal 18 argumentation is an expression of legal opinion and is not a recitation of a ‘fact’ to which 19 an affiant is competent to testify, [thus] legal argument in an affidavit may be 20 disregarded.” Pfeit u. Rogers, 757 F.2d 850, $62 (7th Cir. 1985). Nor will “self-serving 21 affidavits without factual support in the record” be considered. Shank v. William R. Hague, 22 Inc., 192 f.3d 675, 682 (7th Cir. 1999). finally, the Court will not consider “statements 23 that are the result of speculation or conjecture.” Stagman v. Ryan, 176 f.3d 986, 995 (7th 24 Cir. 1999). 25 However, when bringing a motion to strike, “the moving party must specify the 26 objectionable portions of the affidavit and the specific grounds for objections.” Casas 27 Office Machines, Inc., v. Mita Copystar America, Inc., 42 f.3d 668, 682 (1st Cir. 1994). A 2$ motion to strike that is too general will not be granted, and the moving party must “do 29 more than swing its bludgeon wildly.” Perma Research & Development Co. v. Singer Co., 30 410 f.2d 572, 579 (2nd Cir. 1969); See also Lamb v. Hoffman, 200$ Guam 2 ¶ 35. Instead, 31 when ruling on a motion for summary judgment, the Court has authority to use “discretion 32 to disregard those facts which would not be admissible in evidence, and to rely only on

Page 3 of 7 CV0436-19, Joel Joseph vs. Dylan Mechanical Construction Services, Inc. Decision and Order (Motion to Strike; Motion for Leave to File Supplemental Memorandum). 1 those facts which are competent evidence.” Wimberly v. Clark Controller Co., 364 F.2d 2 225, 227 (6th Cir. 1966); See also Oxford Ltfe Ins. Co. v. United States, 574 F. Supp. 3 1417, 1421-22 (D. Ariz. 1983), affd in part, revd in part on other grounds, 790 F.2d 1370 4 (9th Cir. 1986) (“the Motion to Strike should be denied, since the Court will disregard 5 those portions . . . dealing with legal conclusions”). Thus, when considering the pending 6 Summary Judgment motion, “this Court will consider neither admissible matter nor matter 7 ‘inextricably combined’ to inadmissible matter.” Jorman v. Veterans Admin., 579 F. Supp. $ 1407, 1412 (N.D. flu. 1984). 9 Here, Joseph argues “the Cullick Declaration . . . is so replete with conclusory 10 statements, speculation, personal opinion, legal arguments and other improper statements 11 that the entire declaration should be disregarded . . . .“ P1.’s Mot. to Strike (Nov. 23, 12 2020). However, Joseph fails to particularize his objections to the material, instead 13 offering statements such as, “[t]he first paragraph on page 2 . . . speculates as to how 14 Cullick might have re-written the contract,” and “[i]n the next paragraph on page 5, 15 Cullick offers up his analysis of the bank loan obtained by Dr. Joseph.” See Id. at 4-5. 16 These arguments put forth by Joseph, are not “specify[ing] the objectionable portions of 17 the affidavit and the specific grounds for objections,” as required to sustain a motion to 18 strike. See Mita Copystar America, at 668. The Court is reminded that “[ut is not 19 sufficient for a party simply to announce a position. . . and then leave it up to this Court to 20 discover and rationalize the bases for his claims.” Lamb at ¶ 35. 21 However, there does appear to be ample inadmissible material within the Cullick 22 Declaration. For example, Cullick states, “Dr. Joseph. . . cannot claim liquidated damages 23 . . . [and] [h]e has not tried to mitigate his damages,” representing Cullick’s opinion as to a 24 legal conclusion and not a fact within his personal knowledge. Deci. of Harold D. Cullick 25 at 10 (Nov. 9, 2020). Cullick puts forth another legal conclusion stating, “[t]he contract 26 lacks sufficient consideration to be an enforceable contract.” Id. at 7. The above are just a 27 few examples and the Declaration is littered with speculation, legal conclusions, and 28 conclusory statements. 29 However, the Declaration does also contain statements of fact that Harold D. 30 Cullick is aware of through personal knowledge. For example, Cullick states “[ut is not 31 true that Joseph told me when he first met me that he needed a bank loan to finance the 32 construction of his kennel. I never agreed to that in the August 13, 2018 contract between

Page 4 of 7 CV0436-19, Joel Joseph vs. Dylan Mechanical Construction Services, Inc. Decision and Order (Motion to Strike; Motion for Leave to File Supplemental Memorandum). 1 us.” Id. at 1. Later, Cullick states, “Dr. Joseph has done no work onsite, no permits, etc.” 2 Id. at 10. The Court is therefore hesitant to strike the entire declaration as there appears to 3 be admissible statements of fact present that will assist the Court in dispensing with the 4 pending Motion for Summary Judgment, in a fair administration of justice. Further, the 5 Court does note that the format of the Declaration has made specificity more difficult, but 6 by no means impossible. Finally, Joseph has not displayed the specificity needed in order 7 to determine the exact verbiage he wishes to strike and the reasons for his objections. 8 Thus, absent a specific line by line breakdown of the objections to the material by 9 Joseph, this Court must DENY the Motion to Strike. However, both parties are put on 10 notice that this Court will not use any inadmissible evidence supplied by Harold D. 11 Cullick in his declaration when analyzing the merits of the pending Motion for Summary 12 Judgment. 13 14 II. Motion for Leave to File Supplemental Memorandum in Support of Cross 15 Motion for Summary Judgment. 16 Motion practice in this Court is governed by Rule 7.1 of the Local Rules of the 17 Superior Court of Guam. Under Rule 7.1(k), “[t]he Court need not consider motions, 18 oppositions to motions or briefs or memoranda that do not comply with [Rule 7.1] . . .

19 CVR 7.1(k). There is no local rule that provides for the filing of a surreply. The rules only 20 contemplate a memorandum in support of the motion, an opposition, and a reply. CVR 21 7.l(c)(2); CVR 7.1(d)(l); CVR 7.1(d)(2). Other jurisdictions have allowed leave to file 22 supplemental briefings “upon a showing of good cause.” See Servo v. Junginger, 2014 23 WL 3891751 * 3 (D. Or. 2014). See Reiger v. Nevens, 2014 WL 537613 (D. Nev. 24 2014); Wilridge v. Marshall, 2014 WL 1217974 (D. Cal. 2014). 25 Further, “[a] Court has the discretion to grant a responding party leave to file a 26 sur-reply when the moving party has raised new arguments or brought forth new material 27 in its reply brief.” Gibbs v. Plain Green, LLC, 2017 WL 7693141 (E.D. Va. 2017). 28 However, “where a party seeks merely to re-open briefing on issues previously raised, a 29 sur-reply should not be allowed.” Id. Typically, Courts “deny motions for surreplies absent 30 extraordinary circumstances.” Hathaway v. Idaho Pactflc Corporation, 2020 WL 2858003 31 (D. Idaho 2020); See also Atlin v. Mendes, 2008 WL 5422871 * 3 (N.D. Tex. 2008); Gen. 32 Elec. Co. v. Latin Am. Imports, S.A., 187 F. Supp. 2d 749, n. 1 (W.D. Ky. 2001).

Page 5 of 7 CV0436-19, Joel Joseph vs. Dylan Mechanical Construction Services, Inc. Decision and Order (Motion to Strike; Motion for Leave to Flie Supplemental Memorandum). 1 Finally, it is well established law in Guam “that parties who may freely choose 2 their attorneys should not be allowed to later avoid the ramification of the acts or 3 omissions of their chosen counsel.” Parkiand Development, Inc. v. Anderson, 2000 Guam 4 $ ¶ 15. Relatedly, Courts have held, “new counsel, alone, does not constitute good cause.” 5 Medtronic Sojamor Danek USA, Inc. v. Nttvasive, Inc., 2010 WL 11452386 (S.D. Cal. 6 2010). Further, the party seeking to file a supplemental brief must explain why the 7 contents of the supplemental brief “were not identified by its prior counsel.” Id. (finding 8 no good cause when attempting to amend claims based on change of counsel). A policy 9 reason exists for these rules, as Courts are reluctant “to allow a party to manufacture ‘good 10 cause’ at any time simply by switching counsel.” Alexander v. Westbttry Union free 11 School Dist., 829 F. Supp. 2d 89, 118 (E.D.N.Y. 2011) (citations omitted). 12 Here, Dylan is attempting to file a supplemental brief in order “to present case law 13 that is highly persuasive and dispositive.” Reply to Opp’n to Mot. for Leave to File Suppl. 14 Memo. at 3 (Feb. 10, 2021). Further, Dylan accuses Joseph of “bury[ing] its head, and [the 15 Court’s] in the sand,” and trying to dispose of the liquidated damages issue through 16 procedure rather than on the merits. Id. However, Dylan “does not dispute that its prior 17 counsel could have uncovered the case law referenced . . . .“ Id. at 2-3. Finally, Dylan 1$ argues that the prior counsel’s errors constitute exceptional circumstances. Id. at 3. 19 This Court disagrees. Dylan was freely able to obtain counsel, and thus should be 20 bound by the omissions of their chosen counsel. $ Parktand Development Inc., 2000 21 Guam 8 ¶ 15. The Court will not allow Dylan to manufacture “good cause” simply by 22 changing counsel. See Alexander, 829 F. Supp. 2d at 89. Further, Joseph did not raise new 23 arguments in his reply nor bring forth new evidence, and thus, Dylan is attempting to 24 reopen briefing on an issue that has already been briefed. ç Gibbs, 2017 WL 7693141. 25 This Court warned Dylan that it would not be allowed a second bite at the apple. Mm. 26 Entry (Dec. 3, 2020). Therefore, the Court does not find “good cause” exists to allow the 27 submission of a supplemental brief, and the substitution of counsel or the locating of case 28 law that could have been found for the Opposition brief, does not constitute “extraordinary 29 circumstances. Thus, Defendant’s Motion for Leave to File Supplemental Memorandum in 30 Support of Cross Motion for Summary Judgment is DENIED. 31 32

Page 6 of 7 CV0436-19, Joel Joseph vs. Dylan Mechanical Construction Services, Inc. Decision and Order (Motion to Strike; Motion for Leave to File Supplemental Memorandum). 1 CONCLUSION 2 3 Based on the foregoing, Plaintiff’s Motion to Strike and Disregard the Declaration 4 of Harold D. Cullick is DENIED and Defendant’s Motion for Leave to file Supplemental 5 Memorandum in Support of Cross Motion for Summary Judgment is DENIED 6 7 FURTHER PROCEEDINGS: May 6, 2021 at 10:00 a.m. $ Teleconference: 969-7000 9 Meeting ID.: 115-6384-5418 10

12 50 ORDERED this %/ 13 7/

HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam

SERVICE VIA E-MAIL I acknowledge that an electronic copy of the origias e-mailed to: tM c-I, IQ-A.ZA[) Date: Time: a/z c,k’ Deputy ClerkSuperior Court of Guam

Page 7 of 7 CV0436-19, Joel Joseph vs. Dylan Mechanical Construction Services, Inc. Decision and Order (Motion to Strike; Motion for Leave to File Supplemental Memorandum).