Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Row Equipment, Inc. v. Terex USA, LLC

United States District Court, S.D. Georgia, Waycross Division

November 21, 2019

ROW EQUIPMENT, INC., Plaintiff,
v.
TEREX USA, LLC d/b/a TEREX ENVIRONMENTAL EQUIPMENT, Defendants.

          ORDER

          R. STAN BAKER UNITED STATES DISTRICT JUDGE.

         Plaintiff ROW Equipment, Inc. (“ROW”) sued Defendant Terex USA, LLC (“Terex”), seeking damages for its purchase (from Terex) of wood chippers that ROW contends were faulty, frequently malfunctioned, and were never properly repaired or replaced by Terex. The Court granted summary judgment in favor of Terex on all but one of Plaintiff's claims. (Doc. 57.) The sole claim remaining for adjudication at trial is a claim that Defendant Terex breached its express standard warranty that the chippers would be free of “defects in manufacture or materials” and that it would adequately repair or replace the chippers. (Doc. 51, pp. 11, 13; doc. 57, pp. 16-17; see also doc. 15.) The case is presently before the Court on Defendant's “Objection[s] to Plaintiff's Exhibit List, ” (doc. 101), and Defendant's “Motion to Strike Plaintiff's Response to Objection to Plaintiff's Exhibit List/Alternative Motion for Leave to File Reply, ” (doc. 120). For the reasons set forth more fully below, the Court OVERRULES IN PART and SUSTAINS IN PART Defendant's Objections to Plaintiff's Trial Exhibits, (doc. 101), and DENIES Defendant's Motion to Strike Plaintiff's Response as well as its alternative Motion for Leave to File a Reply, (doc. 120).[1]

         I. Non-Email Exhibits (Exhibits 16, 18, 19, 30, 31 and 32)

         The majority of the exhibits to which Defendant objects are emails, and the Court will address those objections in a separate section. The Court focuses now on Defendant's objections to Plaintiff's Exhibits 16, 18, 19, 30, 31 and 32.

         A. Plaintiff's Exhibit 16

         Plaintiff's Exhibit 16 is a ROW Equipment, Inc. ledger of “All Transactions for Terex Financial Servic[e], Inc., ” which appears to list by date amounts paid (and the account from which the given payment was drawn) between September 2012 and October 2015. Defendant objects to this exhibit, arguing that “[p]ayments allegedly made to an entity other than Terex USA are immaterial to the issues to be tried, namely, whether Terex USA breached its written limited warranty and whether ROW suffered damages from such breach.” (Doc. 101, p. 3.) Defendant also argues that “[t]his exhibit lacks foundation, authenticity, is irrelevant and immaterial, is confusing to the jury, and constitutes hearsay not subject to an exception.” (Id.) Plaintiff has not offered any sort of response regarding this exhibit and thus has offered no grounds for its admissibility. This exhibit, however, would likely be admissible under the business-records exception to the hearsay rule. See Fed.R.Evid. 803(6). “As a business record, the ledger would be admissible in and of itself. Rule 803(6) contains no requirement that the entries on a business record-the ‘record of an act, event, condition, opinion, or diagnosis'-must be supported by underlying documents in order for the business record to be admissible.” DA Holdings, LLC v. Tenn. Land Consultants, LLC, 631 Fed. App'x 817, 822 (11th Cir. 2015) (citing Fed.R.Evid. 803(6)). Assuming Plaintiff is able to lay the necessary foundation at trial pursuant to Rule 803(6), Exhibit 16 will not be inadmissible hearsay. Moreover, it is not clear to the Court at this time that the ledger is immaterial and irrelevant to any issues at trial, such as damages. As a result, the Court OVERRULES the objections to Exhibit 16 at this time, subject to Defendant having the right to raise them again if and when Plaintiff tenders its Exhibit 16 at trial.

         B. Plaintiff's Exhibit 18

         Plaintiff's Exhibit 18 is a copy of a legal complaint filed in another court by Ever Bank Commercial Finance, Inc. against Plaintiff and John James. In that complaint, Ever Bank (which is not a party to the present action) represented itself as the assignee of the financing agreement that Plaintiff and Mr. James executed when Plaintiff purchased the chippers. Ever Bank also claimed that Plaintiff and Mr. James breached their payment obligations under that agreement, and that Plaintiff and Mr. James were therefore indebted to Ever Bank for more than $486, 860.89. Defendant objects to the admission of the complaint into evidence on the grounds that it is “irrelevant and immaterial, is confusing to the jury, and constitutes hearsay not subject to an exception.” (Doc. 101, p. 6.) Plaintiff has not offered any sort of response regarding this exhibit and thus has offered no grounds for its admissibility and has not explained how it is relevant to the breach of warranty claim against Terex that is at-issue in this case.

         Exhibit 18 as presently tendered constitutes inadmissible hearsay, its relevance to the issues of this case is entirely unclear, and it thus seems likely to confuse or mislead the jury. As a result, the Court SUSTAINS Defendant's objection to Exhibit 18 pursuant to Fed.R.Evid. 402, 403, and 802.

         C. Plaintiff's Exhibit 19

         Plaintiff's Exhibit 19 is a credit card receipt from “Terex Environmental Equipment” reflecting payment of invoice number 36865 by John James for “Customer ID ROWE000” in May 2015. Defendant objects to this exhibit on the grounds that it is irrelevant, “immaterial to the issues to be tried, . . . confusing to the jury, and constitutes hearsay not subject to an exception.” (Doc. 101, p. 7 (citing Fed.R.Evid. 403, 801-805).) In response, Plaintiff avers that the receipt is relevant because it evidences its damages, and also that it does not constitute hearsay because it is a statement by an opposing party under Fed.R.Evid. 801(d)(2) since it is a receipt that was created by Defendant.

         Under Federal Rule of Evidence 802(d)(2), admissions by a party opponent are not hearsay. An admission by a party opponent is a statement “contrary to the trial position of the party against whom it is offered.” O'Donnell v. Ga. Osteopathic Hosp., Inc., 748 F.2d 1543, 1548 n.6 (11th Cir. 1984), overruling on other grounds recognized by Lindsey v. Am. Cast Iron Pipe Co., 810 F.2d 1094 (11th Cir. 1987).

         The invoice is non-hearsay because it is a statement of an opposing party and appears to be against that party's trial position (since it purportedly demonstrates part of Plaintiff's claimed damages in the case). See U.S. v. Williams, 837 F.2d 1009, 1013-14 (11th Cir. 1988) (receipts that had been given by opposing party admissible under Rule 801(d)(2)). Further, because the receipt appears to bear potential relevance to the element of Plaintiff's damages and does not appear on its face to be confusing, the Court OVERRULES Defendant's objections to Plaintiff's Exhibit 19.

         D. Plaintiff's Exhibit 30

         According to Plaintiff, its Exhibit 30 is a video of a chipper self-engaging in Louisiana. Presently, the Court has not received a copy of the video in the format in which Plaintiff intends to present it to the jury at trial. Instead, the Court has been directed to a YouTube.com page to view the video. The 38-second video shows a large piece of machinery first sitting idle, then beginning to move and operate. In the accompanying audio, as the machine starts to move, a man (not shown on the screen) can be heard narrating with statements such as: “Look at that feed wheel move up and down by itself. . . . Nobody is in the machine . . . Almost had a guy get squished earlier by it.” (See Doc. 119, p. 1 (link to YouTube.com page).) Defendant objects as follows:

ROW did not produce the video during discovery. ROW does not know who took the video or what machine is depicted, and therefore, cannot lay a foundation for its admission or authenticate it. Fed.R.Evid. 901. Despite the lack of foundation or authenticity, ROW relies on the video for the truth of the matter asserted, namely, one of the Chippers engaged on its own. The video is speculative and is hearsay not subject to any exception. Fed.R.Evid. 403, 801-805.

(Doc. 101, p. 4.) In response, Plaintiff states that the voice in the video is that of Mr. James, who will testify at trial about what is depicted, but that, in order to avoid potential hearsay issues with the audio, Plaintiff will play the video without any audio at trial. (Doc. 119, p. 2.)

         First, as to Defendant's objection that Plaintiff did not produce the video during discovery, the Court notes that the deposition testimony included in Defendant's brief indicates that Defendant was aware of and had access to the video on YouTube.com while discovery was still taking place. (See id. at pp. 3-4.) Defendant has not alleged any prejudice resulting from the failure to produce the video. As a result, the Court declines to exclude the video on that ground. Next, it was not clearly established from the provided deposition excerpt that Mr. James actually said he did not know who filmed this video. Regardless, even if he does not know who filmed this particular video, Mr. James can still testify about what is depicted in the video. If, as Plaintiff claims he will do, Mr. James testifies that the video accurately depicts events that he observed first hand, he can lay the proper foundation for its admission. See Fed.R.Evid. 901(a) (requirement of authentication or identification for admissibility of evidence is satisfied by “evidence sufficient to support a finding that the item is what its proponent claims it is”); United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. 1981) (“A witness qualifying a photograph need not be the photographer or see the picture taken; it is sufficient if he recognizes and identifies the object depicted and testifies that the photograph fairly and correctly represents it.”).[2] Finally, Defendant fails to explain a reason the video would be “speculative, ” particularly if Mr. James can authenticate it and explain what it depicts based on first-hand knowledge, and any potential hearsay in the audio statements is remedied by Plaintiff's commitment to play the video without any audio. In light of the foregoing, the Court OVERRULES Defendant's objections to Plaintiff's Exhibit 30.

         E. Plaintiff's Exhibit 31

         According to Plaintiff's exhibit list, Plaintiff's Exhibit 31 is “time sheets of attorneys and staff at law firm representing Plaintiff.” (Doc. 95, p. 2.) The Court notes, however, that Plaintiff has not provided any such time sheets. Defendant objects on the ground of relevance, stating that these documents are “irrelevant and immaterial to the issues to be tried, confusing, and misleading of the issue[s] to be tried.” (Doc. 101, p. 9.) Plaintiff has offered no substantive response, but the Court cannot ignore the fact that Plaintiff's claim for attorney's fees pursuant to O.C.G.A. § 13-6-11 survived summary judgment. (Doc. 57, p. 18.) Given this fact, the Court cannot say at this time that attorney and law firm staff time sheets are irrelevant, immaterial, confusing or misleading. Therefore, the Court thus OVERRULES Defendant's objection to Exhibit 31.

         F. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.