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United States v. Brace

United States District Court, W.D. Pennsylvania

August 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT BRACE, ROBERT BRACE FARMS, INC., and ROBERT BRACE AND SONS, INC., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTIONS TO STRIKE AND FOR SUMMARY JUDGMENT ON LIABILITY AND RELATED MOTIONS

          BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The United States of America initiated this action against Defendants Robert Brace, Robert Brace Farms, Inc. and Robert Brace and Sons, Inc.'s (collectively, “Defendants”), alleging that Defendants have repeatedly violated Section 301(a) of the Clean Water Act (“CWA”), 33 U.S.C. § 1311(a), and seeking injunctive relief as well as civil penalties pursuant to the Act. The following motions are currently before the Court: (1) the United States' motion to strike Defendants' response to the United States' motion for summary judgment on liability (Dkt. No. 154); (2) the United States' motion for summary judgment on liability (Dkt. No. 83); and (3) several motions in limine (Dkt. Nos. 82, 86, 87).

         Having reviewed the motions, the oppositions thereto, the record of this case, as well as the relevant legal authorities, the Court will: (1) grant the United States' motion to strike Defendants' response to the summary judgment motion; (2) grant the summary judgment motion; and (3) strike as moot the remaining outstanding motions. The reasoning for the Court's decision follows.

         I. BACKGROUND

         This case has a long and taxing history. It arises from actions taken by Defendants dating back to the 1990s and continuing to the present with respect to two contiguous parcels of land owned by Defendants. The complexity of the issues in this case, the volume of the record evidence, and the span of time have all led to the case's sloth-like progression. However, the main cause of delay has been the dilatory and insolent behavior of Defendants. Having repeatedly directed Defendants to comply with the Court's orders and the Federal Rules of Civil Procedure and having Defendants' repeatedly disregard opportunities to correct their behavior, the Court has reached its limit. The Court will now exclude Defendants' undisclosed expert opinion and related exhibits and strike Defendants' over-length brief in opposition to the United States' summary judgment motion on liability. Because the United States' summary judgment motion is now uncontested, the Court will grant the motion.

         A. The Instant Action and the 1990 Action

         As stated above, the United States initiated this lawsuit on January 9, 2017, seeking injunctive relief and civil penalties against Defendants for violating Section 301(a) of the CWA, by discharging pollutants into the waters of the United States, see Dkt. No. 1. Broadly speaking, the United States charges Defendants with clearing statutorily protected wetlands located on a 20.01-acre plot of land, known as the “Marsh Site, ”[1] in the townships of McKean and Waterford, Erie County, Pennsylvania. Id. at ¶¶ 1, 28, 38. The United States alleges that Defendants' actions caused dirt, rocks, and other debris-which the CWA defines as pollutants-to be discharged into the wetlands and adjoining Elk Creek, which in turn flows into Lake Erie. Id. at ¶¶ 31, 39, 47. As the Defendants did not obtain a Section 404 permit for the discharge, id. at ¶ 41, the United States claims a CWA violation.

         At the same time that the United States initiated the instant action, it also moved to enforce a consent decree that the parties entered into as part of another lawsuit filed in 1990 in the Western District of Pennsylvania (hereinafter “the 1990 Action”). See United States v. Brace, et al., No. 90-229 (W.D. Pa. filed Oct. 4, 1990). The Honorable Susan Paradise Baxter presides over the 1990 Action. The 1990 Action involved another parcel of land-known as “the Murphy Site”-that is located just south of the Marsh Site. Dkt. No. 84 at ¶¶ 5-11.[2] The United States initiated the 1990 Action based on factual allegations similar to those alleged in the instant action, i.e., that Defendants “cleared, mulched, churned, levelled, and drained the formerly wooded and vegetated” Murphy Site in order to make it suitable for farming. United States v. Brace, 41 F.3d 117, 121 (3d Cir. 1994). The district court dismissed the United States' complaint, concluding that Defendants' actions were exempt from the permitting requirements under the CWA. Id. at 120. The Third Circuit Court of Appeals reversed the district's decision and held that Defendants were liable of CWA violations and remanded the matter to the district court to assess penalties. See Id. at 130. Thereafter, the parties entered into a consent decree to resolve Defendants' liability.

         On the same day that the United States initiated the instant action, it also filed a motion in the 1990 Action before Judge Baxter to enforce the consent decree. Defendants moved to consolidate the 1990 Action and the instant action. Dkt. No. 92. The Court denied the motion on November 14, 2018. Dkt. No. 120. Nevertheless, Defendants have repeatedly attempted to intermingle the cases and the Court has had to repeatedly remind Defendants that the actions are separate and distinct from each other. See Dkt. No. 38 at 2; Dkt. No. 62 at 1-2; Dkt. No. 75 at 7; Dkt. No. 142 at 1 n.1, 5.

         B. Defendants' History of Non-Compliance with Court Orders and the Federal Rules of Civil Procedure in this Case

         What followed the initiation of this action is a procedural history replete with extended deadlines, missed deadlines, and completely ignored deadlines-all by Defendants. In addition, Defendants have flagrantly disregarded the Federal Rules of Civil Procedure pleading requirements and this Court's instructions outlined in its Standing Order for Civil Cases. See Dkt. No. 41. And, when given repeated opportunities to reform their ways, instead of cleaning up their act, Defendants doubled down in their disregard for this Court's orders and instructions. Indeed, it taxes this Court's patience to recount the cycle of Defendants' misbehavior, Court-ordered compliance, and Defendants' disregard of such orders. Nevertheless, given the draconian nature of the sanction the Court will impose with this order, such a recitation is necessary.

         Defendants' first misdeed was their failure to properly plead their affirmative defenses in the answer to the complaint. Dkt. No. 7. Defendants asserted eleven affirmative defenses, most of which failed to meet Federal Rule 8's pleading requirements. Id. at ¶¶ 54-64. The United States moved to strike eight of the eleven affirmative defenses, which this Court granted. In doing so, this Court noted that this case “span[s] at least six years” involving over 20 acres to which Defendants' “one-sentence paragraphs contain no particularities at all.” Dkt. No. 40 at 2. “In a case of this magnitude, ” this Court went on, “such vague accusations cannot be expected to put the United States on notice.” Id.

         Next, the United States informed the Court that it was having a difficult time working with Defendants to reach an agreed protocol for Electronically Stored Information (“ESI”), as they are required to do under Federal Rule 26(f). Dkt. No. 25. These difficulties included evasiveness from Defendants' counsel in answering emails, late replies, and attempts to include superfluous information and inappropriate discovery requests in the ESI protocol. See generally Id. The United States, therefore, moved for entry of an order regarding discovery of ESI. Id.

         While that motion was pending, Defendants moved for an extension to complete fact and expert discovery, alleging that they needed more time to complete and submit their rebuttal expert reports. They also claimed that more time was needed to allow them to complete the deposition of the respective expert witnesses. Dkt. No. 35. The United States objected claiming that Defendants had not shown good cause for the extension. Dkt. No. 36. On January 23, 2018, the Court adopted the United States' proposed ESI protocol and, over the United States' objection, granted Defendants' extension request. Dkt. No. 38.

         Thereafter, on March 23, 2018, approximately three weeks after the already extended discovery deadline had passed, Defendants moved for another extension of the deadline, this time requesting a four-month extension. Dkt. No. 47. Defendants claimed that the extension was necessary so that they could produce an expert report on the hydrology of Defendants' land. The United States again objected the extension request. Dkt. No. 48. The Court granted Defendants' extension request for the limited purpose of producing the hydrology report. Dkt. No. 49. However, the Court warned Defendants that “[f]ailure to timely provide the Government with this expert report shall result in the Court prohibiting Defendants from using it at trial.” Id.

         The Court's admonishment obviously was not enough because Defendants did not provide the expert report to the United States until June 4, 2018; 10 days after it was due and with no explanation or attempt to extend the deadline. Dkt. No. 59 at ¶¶ 6-8. The United States moved for an order to show cause as to why the expert report should not be stricken from the record; the Court granted the motion and ordered the Defendants to show cause as to why the report should not be excluded. Dkt. Nos. 59, 60. Ultimately, however, the Court accommodated Defendants yet again. In an order dated June 15, 2018, the Court declined to exclude the expert report, Dkt. No. 62. The United States moved for reconsideration, but this Court denied the motion. Dkt. Nos. 63, 67.

         On June 25, 2018, the parties informed the Court that they had run into yet another discovery issue, and the Court scheduled a telephonic hearing for June 28, 2018. Dkt. No. 68. During that hearing, Defendants requested yet another extension to reopen and complete expert discovery. Dkt. No. 70. The Court denied the request. Id. In doing so, the Court noted that the extension request was made four weeks after the date by which discovery was to have closed (in violation of this Court's Standing Order, Dkt. No. 41). The Court further noted this was Defendant's third extension request. Lastly, the Court determined that Defendants had not established good cause for the extension. Id. at 6. The Court concluded the order by admonishing “the parties [to] work cooperatively in order to meet [the subsequently established] deadlines.” Id. at 7.

         Overtaken in this maelstrom, and its current recitation in this order, was Defendants' filing of their amended answer, Dkt. No. 44, and the United States' motion for partial judgment on the pleadings regarding Defendants' affirmative defenses, Dkt. No. 52. Defendants filed their opposition to the motion on May 7, 2018. Dkt. No. 55. In resolving the United States' motion, the Court first noted that Defendants' opposition relied on factual allegations not set forth in their amended answer and on evidence that is not part of the record in this case. Dkt. No. 75 at 6-8. Thus, the Court disregarded the previously unpled and/or unsubstantiated allegations and turned to the merits of the motion. Based on those arguments, the Court granted the United States' motion for partial judgment and held that Defendants had failed to adequately state their affirmative defense, for a second time. Id. at 16-17.

         On September 11, 2018, Defendants submitted another request for extension of time, this time to file dispositive and Daubert motions. Dkt. No. 80. The Court granted Defendants' request, extending the deadline to file such motions to no later than September 25, 2018. Dkt. No. 81. In doing so, the Court explicitly stated that it “expect[ed] that this will be the last such request from either party.” Id.

         C. Current Pending Motions

         On September 25, 2018, the United States submitted the currently pending motion for summary judgment on liability, along with a brief and a concise statement of material facts. Dkt. Nos. 83, 84, 85. The United States also timely submitted a motion in limine to exclude certain expert testimony. Dkt. No. 82.

         The next day, September 26, 2018, Defendants submitted two motions in limine to exclude the United States' experts' testimony. Dkt. Nos. 86, 87. The astute reader will recall that the Court set the deadline for such motions as September 25, 2018 when the Court warned that it “expect[ed] that this will be the last such request from either party.” Dkt. No. 81. The United States promptly moved to strike both filings as untimely, pointing out that Defendants filed their motions late, “(a) without explanation or acknowledgement, (b) without notifying the Court or seeking leave, (c) in spite of requesting the September 25 deadline just two weeks ago and acknowledging the deadline just days ago . . . and (d) knowing that this Court had warned the parties that it would not extend the deadline further.” Dkt. No. 88 at ¶ 6 (internal citations removed).

         Defendants, not surprisingly, opposed the government's motion. Dkt. No. 89. They argued that their counsel-an alleged sole practitioner-“experienced [a] shortness of time” due to responsibilities to another client. Id. at 6. They also argued that the motions in limine were only late because local counsel refused to submit motions that exceeded the Court's page limitation. Id. at 6 n.4. Therefore, Defendants' counsel argued, he had to spend the next “24 uninterrupted hours” whittling down the motions. Id. at 5-6.

         The Court was unpersuaded by Defendants' opposition to the United States' motion to strike. First, the Court noted that Defendants' untimely motions constituted Defendants' third untimely request that the Court modify its scheduling order. Dkt. No. 100 at 3. Second, the Court noted that “a number of Defendants' assertions stretch credulity, ” such as counsel's claim to be a “solo practitioner” when counsel's law firm website lists three attorneys. Further, counsel had assistance from co-counsel in this case who had “signed-and docketed-every defense pleading in [the] case.” Id. at 3-4. Lastly, the Court held that, regardless of counsel's excuses, “it is well established that an attorney's busy schedule does not excuse untimely pleadings that violate court orders.” Id. at 4 (listing cases). The Court also noted that, to the extent that Defendants argued that their motion should be considered timely because their counsel “timely finished what he believed to be the final versions of the motions, ” the Court was unpersuaded as the Standing Order establishing page limits was clear and counsel was “presumed to be familiar with the Court's Order and nevertheless prepared a non-conforming brief.” Id. at 5 n.4.

         Nevertheless, the Court denied the United States' motion to strike the Defendants' motions because doing so would constitute too harsh of a sanction. Id. at 5. However, the Court also noted that Defendants' untimely filings “represent[ed] only the latest violation in a long series of violations of the Court's orders” in which Defendants “provide[d] no valid justification of their dilatory actions.” Id. “Such behavior, ” the Court admonished, “is an unacceptable waste of the Court's (and Plaintiff's) time.” Id. at 5-6. Therefore, the Court ordered Defendants to show cause as to why the Court should not impose sanctions. Id.[3]

         Moving back to the motion for summary judgment on liability that the United States filed on September 25, 2018, incredibly and notwithstanding the Court's admonishment of Defendants and Defendants' counsel just four days earlier in its order denying the United States' motion to strike, Defendants filed their opposition to the motion one day late. Dkt. Nos. 102, 104. As if that were not enough, Defendants' opposition (including a counter statement of facts and exhibits) was over 9, 000 pages long, did not include an appendix, and, by their own admission, included approximately 2, 400 duplicate pages that Defendants did not identify. Dkt. No. 109 at ¶ 6, 9.

         The United States moved to strike Defendants' untimely opposition, as well as 33 exhibits appended to Defendants' statement of facts as not properly part of the record. Dkt. Nos. 105 and131 (the government later withdrew its request as to one of the exhibits). Regarding the 33 exhibits, the United States asserted that they were not disclosed in discovery, which closed May 25, 2018, nor referenced in Defendants' expert reports. Id. at 3. Defendants in their opposition did not dispute that they had failed to produce the bulk of the challenged material. See generally Dkt. No. 138. Thus, the Court granted the United States' motion as to all 33 exhibits.[4] Dkt. No. 142 at 10. In so doing, the Court noted that, discounting duplicates, the exhibits in question totaled 2, 101 pages, the “sheer volume” of which “impose[d] substantial prejudice on Plaintiff, negatively effect[d] the efficiency of litigation, and . . . demonstrate[ed] a continued unwillingness to comply with discovery obligations.” Id. at 8-9.

         The Court highlighted one particularly egregious example. In their filings, Defendants twice included a 248-page hydraulic engineering report composed by Donna M. Newell and Francisco Aguirre (“the Newell Report”). See Dkt Nos. 102-53, 102-60 internal ex. 8 at 233; Dkt. No. 142 at 8. The Newell Report was dated September 17, 2018, four months after discovery closed, and had already explicitly been excluded by the Court. See Dkt. No. 70 at 4 (denying Defendants' motion to reopen discovery “in order to secure and have a report prepared by a hydraulic engineer”); Dkt. No. 120 at 3-4 (denying Defendant's motion to consolidate cases because “Defendants in the 90 Action have moved to admit expert testimony [in the form of the Newell Report] that this Court, in the instant case, excluded nearly five months ago”). Not only was the Newell Report twice included, Defendants labeled it “Hydrological and Hydraulic Evaluation . . . Related to United States v. Brace et al., 17-cv-06 and 1:90-cv-00229, ” which the Court characterized as “flagrant disregard” of this Court's prior admonishments that the 1990 Action and the instant action are separate actions. Dkt. No. 142 at 8 (quoting Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997)).

         Second, as the challenged opposition brief referenced many of the materials stricken in the first part of its opinion, the Court stated that, “[g]iven the volume of these materials, it is both impractical and unreasonable for the Court to wade through Defendants' current opposition brief, redact those portions (and exhibits) that are improperly included, and then try to decipher Defendants' remaining defenses.” Dkt. No. 142 at 10. Thus, this Court struck the oppositions in totem and ordered Defendants, in no uncertain terms, to re-brief their opposition “includ[ing]- and rely[ing] upon-only those materials that were produced during discovery in this action and that the Court has not otherwise struck.” Id. at 10 (emphasis in original). Further, the Court admonished Defendants that their refiling “shall not include either any new exhibits or any exhibits already stricken.” Id. at 11. (emphasis in original). Any offending materials, the Court continued, would be “summarily stricken.” Id.

         Defendants refiled their responsive materials on May 10, 2019, Dkt. Nos. 145, 147, and May 13, 2019, Dkt. Nos. 148, 149. The appendix, alone, is spread over two ECF filings, and consists of 32 exhibits totaling over 4, 500 pages. Dkt. Nos. 148, 149. That is just the appendix. Defendants' revised responsive detailed statement is 122 pages and in a font with frustratingly inconsistent spacing, while the revised memorandum of law is 48 pages and includes three exhibits of its own totaling 142 pages (just the exhibits). Dkt. Nos. 145 and 147.

         The United States moved to strike the sections of Defendants' revised briefing that did not comply with the Court's April 18 Order. Dkt. No. 154. The alleged offending filings include the revised affidavit of Dr. Kagel, Dkt. No. 148-10, a revised affidavit by expert Raymond Kagel (“Mr. Kagel”), Dkt. No. 148-17, the report authored by Dr. Dwayne R. Edwards (“Edwards Report”), Dkt. Nos. 148-15, 149-4, and the entirety of Defendants' revised memorandum of law, Dkt. No. 147. Defendants opposed the motion. Dkt. No. 155.

         II. MOTION TO STRIKE

         A. Legal Standard

         Federal Rule of Civil Procedure 16(f) permits a court to impose sanctions, including “striking pleadings in whole or in part” as provided by Rule 37(b), against any party that “fails to obey a scheduling or other pretrial order.” Fed.R.Civ.P. 16(f)(1)(C) (citing Fed.R.Civ.P. 37(b)(2)(A)(iii)). See, e.g., Ramada Worldwide, Inc. v. VMN Foothills, LLC, No. 15-4078, 2017 WL 1157864, at *2 (D.N.J. Mar. 28, 2017). Additionally, Rule 37(b), in its own right, permits a court to strike a pleading as a sanction against any party that “fails to obey an order to provide or permit discovery.” Fed.R.Civ.P. 37(b)(2)(A)(iii); see, e.g., Linwood Trading Ltd v. Am. Metal Recycling Servs., No. 14-5782, 2017 WL 2825934, at *1 (D.N.J. June 1, 2017), report and recommendation adopted sub nom. Linwood Trading Ltd. v. Am. Metal Recycling Servs., No. 14-5782, 2017 WL 2804948 (D.N.J. June 28, 2017).

         B. Analysis

         As this Court made clear in the April 18 Order, Defendants were to file a revised opposition but were “not [to] include either any new exhibits or any exhibits already stricken, ” Dkt. No. 142 at 11 (emphasis in original). Specifically, Defendants were to “include-and rely upon-only those materials that were produced during discovery in this action and that the Court has not otherwise struck.” Id. at 10 (emphasis in original). Further, the Court expressly warned Defendants that “inclusion of a new or already-stricken exhibit” would result in the exhibit being “summarily stricken.” Id. Thus, the Court's April 18 Order was express in its command that Defendants' remove offending material; it was not an invitation for Defendants to expand their pleadings or to reopen discovery.

         The United States charges that Defendants violated this Court's order in the following ways. First, the United States asserts that Dr. Kagel's new affidavit, Dkt. No. 148-10, reproduces many of the sections previously stricken by the Court in the April 18 Order, as well as includes new opinions. The United States has been kind enough to provide an exhibit highlighting in yellow sections of Dr. Kagel's report previously stricken as well as in pink new opinions and/or information absent from Defendants' original opposition to the summary judgment motion. Dkt No. 154 at 2-4; Dkt. No. 154-3.

         Second, the United States argues that a new affidavit submitted by Raymond Kagel, adds new material not in his original affidavit, which the United States has been kind enough to highlight in yellow. Dkt. No. 154-5.

         Third, the United States points out that Defendants continue to rely on the Edwards Report, Dkt. Nos. 148-15, 149-4, Dkt. No. 145 at 23; Dkt. No. 148-10 at ¶¶ 30, 32, despite the fact that the Court previously struck it, Dkt. No. 142 at 2 n.2, 5, 9.[5] Dkt. No. 154 at 5.

         Fourth, and finally, the United States argues that the Defendants' revised memorandum of law, Dkt. No. 147, runs afoul of this Court's instructions for two separate reasons. Dkt. No. 154 at 5. First, it is 14 pages longer than Defendants' previously filed memorandum of law, Dkt. No. 104, which suggests that new materials have been added in direct defiance of the Court's April 18 Order. Second, at 48 pages, it is eight pages longer than permitted by the Court's October 17, 2018 Order. Dkt. No. 99.

         Defendants oppose all four of these points. Dkt. No. 155. The Court understands Defendants' basic argument to be that several sections of Dr. Kagel's affidavit survive because they have substituted stricken authority with new authority. See, e.g., Dkt. No. 155 at 4 (as Defendants argue: “[t]he [April 18] Order did not, however, exclude expert testimony contained in the various paragraphs of the [original affidavit], where those paragraphs relied other than solely on the stricken exhibits; i.e., they relied also on all or portions of non-stricken exhibits”) (emphasis in original); see also Id. at 5 (revised paragraph 24), 5 (revised paragraph 25), 6 (revised paragraph 30), 6 (revised paragraph 31), 6 (revised paragraph 32), 7 (revised paragraph 37).

         Defendants are mistaken. A simple review of the new Dr. Kagel affidavit against the old is enough to dispel this assertion. Take for example old paragraph 23[6] and new paragraph 24, [7]which the Court provides in footnotes. It is readily apparent that Defendants have merely removed the reference to the offending exhibit. This does not change the fact that the underlying opinions were not disclosed in Defendants' expert reports, which is why reference to the Newell Report was stricken in the first place. See Dkt. No. 70; see also Dkt. No. 142 at 8; Dkt. No. 156 at 3-4. For this alone Dr. Kagel's affidavit may be summarily stricken in its entirety per the Court's April 18 Order. But, there is also the matter of the addition of new opinions and facts that the United States highlighted. See Dkt. No. 154-3. The Court's April 18 Order was not an invitation to bolster a deficient draft. The Court expressly ordered that the revised materials were not to include new exhibits or previously undisclosed materials. For this too, the Court summarily strikes Dr. Kagel's affidavit in its entirety.

         Raymond Kagel's affidavit is even more straightforward. As the United States has highlighted, Dkt. No. 154-5, Mr. Kagel has clearly added significant facts and opinions to his affidavit that were not present in the original. Again, this violates the Court's April 18 Order and the affidavit is summarily struck in its entirety.

         Next, as stated above, the Edwards Report and any reference to the Edwards Report were struck by the April 18 Order. Yet, the Edwards Report is back in both form, Dkt. Nos. 148-15, 149-4, and reference, Dkt. No. 145 at 23; Dkt. No. 148-10 at ¶¶ 30, 32. Defendants' only justification for its resurrection is that it was “erroneously stricken.” See, e.g., Dkt. No. 155 at 6; see also Id. at 10-12. The Court declines to reopen settled issues. The Edwards Report, and anything referencing it, are again summarily struck in their entirety.

         Turning to Defendants' revised memorandum of law. Dkt. No. 147. It is 48 pages long. The Court's order set the limit for such briefs at 40 pages. Dkt. No. 99. Defendants' response to the United States' current motion to strike does not attempt to justify their blatant disregard for the Court's order. Instead, Defendants seem to flaunt their disregard for court orders by admitting, in a footnote, their brief is overlength but that the United States “has not demonstrated how it has been incurably prejudiced by” an overlength brief. Dkt. No. 155 at 15 n.8. This is not how court orders work. This is only the latest example of Defendants complete disregard of the Court's orders and rules.

         Going even further, however, logically it is difficult to see how a brief would grow in length after a party was ordered to remove offending material and not to add new or additional material. The April 18 Order was not an invitation to extend the time Defendants had to respond to the United States' motion for summary judgment by adding new materials, arguments, support, or exhibits. Thus, the fact that Defendants' new opposition has added new material is yet another reason to strike it. It is for this reason that the Court also summarily strikes in its entirety Defendants' revised responsive detailed statement, Dkt. No. 145, as it is now 122 pages; 11 pages longer than its original detailed statement, Dkt. No. 102. The brief is summarily stricken in its entirety.

         Thus, the Court GRANTS the United States' motion to strike in its entirety. Dkt. No. 154.

         After this culling, none of Defendants' responsive pleadings to the United States' motion for summary judgment stand. As such, the motion for summary judgments is both ripe and uncontested.

         “Both the Federal Rules of Civil Procedure and a court's inherent authority to control its docket empower a district court to dismiss a case as a sanction for failure to follow procedural rules or court orders.” Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir. 2013) (citing Fed.R.Civ.P. 37(b)(2)(A)(v); Fed.R.Civ.P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962)). While the Court here is not dismissing Defendants' entire case as a sanction, merely striking its offending pleadings, the Third Circuit has mandated the examination of the Poulis factors in cases that are “tantamount to default judgment” because the court's action may “inevitably lead to liability for one party.” Knoll, 707 F.3d at 409; see also Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 177-78 (3d Cir. 1990) (stating that the Third Circuit declines to determine whether consideration of the Poulis factors is required “before a court enters a summary judgment on an uncontested Rule 56 motion”). Thus, even though the current action in striking Defendants' pleadings is not tantamount to default judgment because the Court will proceed to examine whether summary judgment is justified on the merits, [8] the Court will examine the Poulis factors out of an abundance of caution.

         The Poulis factors were set forth in the Third Circuit's opinion in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984). As that Court has stated, “application of Poulis . . . comports with [its] underlying concern . . . namely that dismissal as a sanction before adjudication of the merits deprives a party of her day in court.” Knoll, 707 F.3d at 409. The factors include:

(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.

Poulis, 747 F.2d at 868 (emphasis in original).

         Additionally, “[a]lthough ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint,' they must all be considered.” Bjorgung v. Whitetail Resort, 197 Fed.Appx. 124, 126 (3d Cir. 2006) (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992)).

         a. Prejudice to the adversary

         Review of the Poulis factors here makes abundantly clear the propriety of the Court's actions in this order.[9] Regarding the “the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery, ” the Court has sought to chronicle and the United States' briefs have attested to their frustrations. See, e.g., Dkt. No. 25 (discussing the United States' difficulty in getting Defendants to agree to an ESI protocol); Dkt. No. 59 (moving the Court to issue a show cause order based on Defendants' late submission, with no explanation, of their expert reports despite the Court's explicit warning that failure to timely provide the reports would result in Defendant being prohibited from using them at trial); Dkt. No. 100 at 6 (in ordering Defendant to show cause as to why the Court should not impose sanctions on defense counsel for filing their Daubert motions late, the Court stated that “[s]uch behavior is an unacceptable waste of the Court's (and Plaintiff's) time”).

         It is clear from the record that Defendants' dilatory practices required the United States to spend hours and finite resources deciphering incomprehensible pleadings, scouring through noncompliant briefs, and moving again and again for compliance with this Court's rules, orders, and schedules, all to no avail as more noncompliant briefs and delays were the only results.

         The Court finds the one example particularly illustrating. As the Court laid out above, Defendants' original response to the United States' motion for summary judgment consisted of over 9, 000 pages and was provided without an appendix. See supra at 9-10. Further it contained 2, 400 pages of duplicates of which “Defendants do not explain whether this was inadvertent; nor . . . whether they have since alerted Plaintiff as to which pages are duplicates.” Dkt. No. 114 at 3. Nor did Defendants explain “how Plaintiff could possibly have known that certain pages were duplicates, at least without expending a considerable amount of time wading through these documents.” Id. Even when Defendants did provide an appendix, it was “extremely confusing” and “contain[ed] no fewer than 10 columns, none of which describe the exhibit.” Dkt. No. 142 at 10 n.4. The United States was forced to “expended numerous hours compiling” a list of exhibits and duplicates before the appendix was produced. Dkt. No. 110 at 2 n.1. The Court characterized this behavior as “impose[ing] substantial prejudice on Plaintiff, negatively effect[ing] the efficiency of litigation, and . . . demonstrat[ing] a continued unwillingness to comply with discovery obligations.” Dkt. No. 142 at 8-9.

         b. History of dilatoriness

         As for the next factor, “a history of dilatoriness, ” the Court believes the previously recounted record of the case speaks for itself. See supra at 4-11. The Court has even twice labeled Defendants' actions as “dilatory.” See Dkt. No. 100 at 5 (“[m]oreover, as explained above, Defendants, in their opposition, provide no valid justification of their dilatory actions”); Dkt. No. 114 at 3 (“[f]urther, Defendants' opposition highlights its own dilatory actions”).

         As detailed above, the Court has warned Defendants on numerous occasions the consequences of submitting late filings without explanation, disobeying court orders, and wasting both the United States' and the Court's time. See, e.g., Dkt. No. 9 at 1 (“[p]leadings which do not comply with these instructions will be summarily denied or stricken”); Dkt. No. 9 at 2 (“[u]ntimely motions or responsive pleadings may be summarily denied, stricken, or ignored”); Dkt. No. 38 at 2 (“Defendants' pattern of failing to respond to discovery requests in a timely manner will not be condoned by the Court”); Dkt. No. 39 (“[a]ny future motions not in compliance with this and other provisions of the Standing Order will be stricken”); Dkt. No. 41 at 2 (“[p]leadings which do not comply with these instructions will be summarily denied or stricken”); Dkt. No. 41 at 2 (“[u]ntimely motions or responsive pleadings may be summarily denied, stricken, or ignored”); Dkt. No. 49 (“[f]ailure to timely provide the Government with this expert report shall result in the Court prohibiting Defendants from using it at trial”); Dkt. No. 62 at 2 (“[t]he Court cautions Defendants that these matters are being tried by two different courts and that Defendants are expected and required to abide by the orders of this Court in the matter that is before it”) (emphasis in original); Dkt. No. 70 at 7 (“[t]he Court expects that the parties will work cooperatively in order to meet these deadlines”); Dkt. No. 75 at 6 (“[t]he Court, in considering Defendants' amended pleading, will not consider facts asserted for the first time in Defendants' opposition brief”); Dkt. No. 75 at 7 (“[i]t is not the role of the Court to ‘put[] together the puzzle of matching' a party's allegations ‘with the meat of the attached materials'” (quoting In re Geiger, 446 B.R. 670, 679-80 (Bankr. E.D. Pa. 2010))); Dkt. No. 81 (“[t]he Court expects that this will be the last such request from either party”); Dkt. No. 100 at 1 (ordering Defendants to show cause as to why sanctions should not be imposed on defense counsel for filing untimely Daubert motions); Dkt. No. 100 at 6 (“[s]uch behavior is an unacceptable waste of the Court's (and Plaintiff's) time”); Dkt. No. 129 (“‘[u]ntimely motions or responsive pleadings may be summarily denied, stricken, or ignored'” (citing Dkt. No. 41 at 2)); Dkt. No. 142 at 5 (“the Court has stressed time and again the separateness of the two actions, which, inter alia, involve different time frames, different parties, and different parcels of land”); Dkt. No. 142 at 8 (“[s]pecifically, as indicated above, the Court-in no uncertain terms-denied Defendants' June 2018 motion to reopen their portion of expert discovery ‘in order to secure and have a report prepared by a hydraulic engineer'” (quoting Dkt. No. 70 at 4)); Dkt. No. 142 at 10 (“[g]iven the volume of these materials, it is both impractical and unreasonable for the Court to wade through Defendants' current opposition brief, redact those portions (and exhibits) that are improperly included, and then try to decipher Defendants' remaining defenses”); Dkt. No. 142 at 10 (“Defendants are to include-and rely upon-only those materials that were produced during discovery in this action and that the Court has not otherwise struck”) (emphasis in original); Dkt. No. 142 at 11 (“Defendants' new opposition shall not include either any new exhibits or any exhibits already stricken”) (emphasis in original); Dkt. No. 142 at 11 (“Defendants are hereby warned that any untimely filing-as well as any inclusion of a new or already-stricken exhibit- will be summarily stricken”).

         Further, the Court's tolerance of Defendants delays has not been without cost in that it has permitted this case to remain unresolved for an unreasonable length of time. See, e.g., Dkt. No. 49 (granting Defendants' motion for extension of time despite being opposed and filed three weeks late); Dkt. No. 62 (excusing Defendants' 10-day late submission of their expert report); Dkt. No. 100 (declining to strike Defendants' untimely Daubert motions despite the fact that they were admittedly late, and Defendants could not show good cause as to their delay).

         Lastly, Defendants, time and time again, have failed to heed the Court's warnings. See, e.g., Dkt. No. 38 at 2 (“Defendants' pattern of failing to respond to discovery requests in a timely manner will not be condoned by the Court”); Dkt. No. 60 (“[t]he Government has informed the Court that despite the Court's prior warning that ‘failure to timely provide the Government with [Defendants'] expert report [would] result in the Court prohibiting Defendants from using it at trial,' [Dkt. No.] 49, Defendants furnished their expert report 10 days late, and without any explanation as to its tardiness”); Dkt. No. 70 at 5 (“[a]s detailed above, Defendants have not been diligent in their efforts to provide an expert report regarding hydraulic engineering”); Dkt. No. 100 at 5 (“[t]he Court agrees with Plaintiff that Defendants' untimely filings represent only the latest violation in a long series of violations of the Court's orders”); Dkt. No. 70 at 5 (“[i]t is astonishing that Defendants waited one month after the Court's deadline to bring the instant motion, which constitutes Defendants second untimely request”) (emphasis in original); Dkt. No. 100 at 5 (“[m]oreover, as explained above, Defendants, in their opposition, provide no valid justification of their dilatory actions”); Dkt. No. 114 at 3 (“[f]urther, Defendants' opposition highlights its own dilatory actions”); Dkt. No. 114 at 4 (“[d]espite this Order, Defendants, in their instant opposition, wave away Plaintiff's assertion that Defendants have, again, violated the rules by failing to provide an appendix of exhibits”); Dkt. No. 129 (striking two untimely Daubert motions filed 56 and 63 days late); Dkt. No. 142 at 8 (“[s]uch behavior constitutes a ‘flagrant disregard' of the Court's orders”); Dkt. No. 142 at 8-9 (“[t]he sheer volume of material imposes substantial prejudice on Plaintiff, negatively effects the efficiency of litigation, and-in light of Defendants' (1) having included the Newell Report and (2) well-documented history of violating Court orders-demonstrates a continued unwillingness to comply with discovery obligations”).

         This recitation constitutes Defendants' transgressions even before the current motion, in which Defendants again directly disobeyed court orders. As such, the Court has no qualms finding Defendants “dilatory.”

         c. ...


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