Millard Gutter Company v. Depositors Insurance Company ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MILLARD GUTTER COMPANY, a Corporation d/b/a MILLARD ROOFING AND GUTTER; GILLICK ENTERPRISES, INC.; and GROSS 8:18CV23 POINT HOLDINGS, LLC; Plaintiffs, ORDER vs. NATIONWIDE INSURANCE, a/k/a/ or d/b/a NATIONWIDE; and DEPOSITORS INSURANCE COMPANY, Defendants. This matter comes before the Court regarding the parties’ dispute over the timeliness of Defendants’ Notice of Intent to Serve Subpoena Duces Tecum upon third parties pursuant to Rule 45 of the Federal Rules of Civil Procedure. Defendants issued the notice on February 27, 2023. Plaintiffs object to the notice as untimely and because it seeks documents irrelevant to this case. The Court held a hearing on the dispute on March 30, 2023. (Filing Nos. 66-67). The court will sustain Plaintiffs’ timeliness objections. Defendants maintain there was never a deadline set for serving Rule 45 subpoenas. While it is true that the case progression order filed on August 6, 2021, (Filing No. 40), provided the deadline for completing written discovery under Rules 33, 34, and 36 of the Federal Rules of Civil Procedure was December 15, 2021-- without specifically identifying Rule 45-- the majority of courts within this circuit agree that Rule 45 subpoenas nevertheless constitute discovery and are therefore governed by the discovery deadlines set forth in a scheduling order. See, e.g., Cave v. Thurston, No. 4:18-CV-00342-KGB, 2022 WL 4599408, at *11 (E.D. Ark. Sept. 30, 2022) (finding Rule 45 subpoenas for discovery issued outside the Court’s announced discovery deadline were untimely). The magistrate judges within this district also take the view that Rule 45 is encompassed within the written discovery deadline, and have subsequently revised its standard case progression order to specifically add Rule 45 to the written discovery deadline to eliminate any confusion. Although Rule 45 subpoenas may sometimes be employed in advance of trial and outside of a discovery deadline for the limited purposes of things such as memory refreshment or trial preparation, here, it is clear that the purpose of Defendants’ Rule 45 subpoenas seek written discovery rather than documents for trial preparation. Therefore, Defendants’ subpoenas seeking written discovery noticed for the first time on February 27, 2023, are well past the December 15, 2021, written discovery deadline. And, the Court finds good cause does not exist to modify the progression order with regard to the December 15, 2021, written discovery deadline.1 See Fed. R. Civ. P. 16(b)(4). “The primary measure of good cause is the movant’s diligence in attempting to meet the order’s requirements.” Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). Good cause under Rule 16(b)(4) may be shown by identifying a change in the law, newly discovered facts, or another significant change in circumstance. See Ellingsworth v. Vermeer Mfg. Co., 949 F.3d 1097, 1100 (8th Cir. 2020). If the movant makes the requisite showing of diligence, then the court may consider other factors such as the degree of prejudice to the nonmoving party. See Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717 (8th Cir. 2008). The same documents now sought by Defendants in the third party subpoena were originally sought by Defendants from Plaintiffs in 2019. Plaintiffs objected to those discovery requests. Defendants did not pursue the issue further and have never sought the Court’s involvement, formally or informally, to obtain that discovery from Plaintiffs throughout this case and over several years. Throughout the course of this long-pending case, the Court has held numerous telephone conferences with counsel to discuss scheduling matters and discovery, most recently on February 24, 2023, to set the pretrial and trial dates, and not once did Defendants mention they were still seeking this written discovery. Given that this case has been pending since 2018, the fact that Defendants did not diligently pursue available avenues to obtain the discovery they first sought in 2019, that the dispositive motion is less than one-business day away, and that the pretrial 1 There is a split of authority as to whether a motion to modify a progression schedule filed after a deadline has passed must satisfy the “excusable neglect” standard of Rule 6(b)(1)(B) in addition to, or in lieu of, the “good cause” standard under Rule 16(b). See LeFever v. Castellanos, No. 4:20CV3066, 2021 WL 5416240, at *2 (D. Neb. Nov. 19, 2021) (recognizing split); Doe v. Frakes, No. 8:19CV252, 2022 WL 507518, at *2 (D. Neb. Feb. 18, 2022) (finding the moving party must show both excusable neglect and good cause); Shank v. Carleton Coll., 329 F.R.D. 610, 614 (D. Minn. 2019) (“Arguably the excusable-neglect standard should apply when a party seeks to modify the scheduling order after the deadline has passed. But the plain text of Rule 16 does not make this distinction.”) (citations omitted); Burke v. Lippert Components Inc., No. 21-CV-3020-CJW-KEM, 2022 WL 17978806, at *2 (N.D. Iowa Dec. 28, 2022) (recognizing some district courts within this circuit have suggested that a party must also demonstrate excusable neglect to modify a deadline after it has passed); but see Petrone v. Werner Enterprises, Inc., 940 F.3d 425, 432 (8th Cir. 2019) (relying only on the “good cause” standard under Rule 16(b) when discussing what a litigant must show in order to extend a court-imposed expert disclosure deadline after the deadline has passed). and trial dates are set for this fall, the Court finds good cause does not exist to extend the written discovery deadline for Defendants to serve the noticed third party subpoenas. Accordingly, IT IS ORDERED that Plaintiffs’ timeliness objections to Defendants’ Notice of Intent to Serve Rule 45 Subpoena are sustained. Dated this 31st day of March, 2023. BY THE COURT: s/ Michael D. Nelson United States Magistrate Judge IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MILLARD GUTTER COMPANY, a ) CASE NO: 8:18-cyv-23 Corporation d/b/a MILLARD ROOFING _ ) AND GUTTER, GILLICK ) ENTERPRISES, INC., and ) GROSS POINT HOLDINGS LLC, ) ) Plaintiffs, ) ) VS. ) ) NATIONWIDE INSURANCE a/k/a or ) d/b/a NATIONWIDE, and DEPOSITORS _ ) INSURANCE COMPANY, ) ) Defendants. ) NOTICE OF INTENT TO SERVE SUBPOENA DUCES TECUM Pursuant to Fed. R. Civ. P. 45 and NECivR 45.1, Defendants Nationwide Insurance and Depositors Insurance Company (collectively “Defendants”), hereby provide notice that Defendants will serve a Subpoena Duces Tecum upon the following entities on March 9, 2023, unless all parties waive the 10-day notice period: 1. Mejia Roofing & Contractors, Inc., 2910 Daniell Circle, Bellevue, NE 68123 2. SOS Heating, Cooling & Electrical Co., Inc., 8314 Maple Street, Omaha, NE 68134 3. MWSS, Inc., 28602 S. State Route D., Cleveland, MO 64734. A copy of the subpoenas Defendants’ intend to issue are attached hereto. Defendants will issue the subpoenas on or after March 9, 2023 (or earlier should the 10-day notice period be waived), and will command the materials sought to be produced to reach the office of Matthew D. Hammes on or before March 22, 2023 or as otherwise set forth within each subpoena. DATED this 27" day of February, 2023. NATIONWIDE INSURANCE a/k/a or d/b/a NATIONWIDE, and DEPOSITORS INSURANCE COMPANY, Defendants, By: /s/ Matthew D. Hammes Matthew D. Hammes, NE # 21484 Locher Pavelka Dostal Braddy & Hammes LLC 200 The Omaha Club 2002 Douglas Street Omaha, NE 68102 P: 402-898-7000 F: 402-898-7130 E: mhammes@Ipdbhlaw.com Attorneys for Defendants CERTIFICATE OF SERVICE THE UNDERSIGNED HEREBY certifies that a copy of the foregoing was served via email on the 27" day of February, 2023, to the following: Theodore R. Boecker, Jr. Boecker Law, P.C., L.L.O. 1045 N. 115th Street Omaha, NE 68154 John M. Walker Lamson, Dugan and Murray LLP 10306 Regency Parkway Drive Omaha, NE 68114-3743 /s/ Matthew D. Hammes AO 88B (Rev, 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action rr □ ee ee eee rt UNITED STATES DISTRICT COURT for the District of Nebraska MILLARD GUTTER CO., GILLICK & GROSS POINT Plaintiff ) 8:1 B-cv-23 ‘ari : :18-ov- NATIONWIDE INSURANCE CO. AND Civil Action No, DEPOSITORS' INSURANCE CO. ) Defendant ) SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION To: Mejia Roofing & Contractors, Inc., 2910 Daniell Circle, Bellevue, NE 68123 (Name of person to whom this subpoena ts directed) Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: SEE ATTACHED EXHIBIT “A" Place: Date and Time: Locher Pavelka Dostal Braddy & Hammes, LLC March 17, 2023 by mail 2002 Douglas Street, Suite 200, Omaha, NE 68102 March 22, 2023 by 10:00 a.m. in person * C1 Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it, TL TT LAAT □□□ NPAC GAL AA AEA te SCA ih ae a PTE □□ The following provisions of Fed, R. Civ. P, 45 are attached — Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so, Date: CLERK OF COURT OR Signature of Clerk or Deputy Clerk Attorney's signature The name, address, e-mail address, and telephone number of the attorney representing (name of party): Nationwide □□□□□□□□□ and Depositors Insurance , who issues or requests this subpoena, are: D. Hammes, mhammes@Ipdbhlaw.com, 2002 Douglas Street, Suite 200, Omaha, NE 68102, (402) 898-7000 Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4). EXHIBIT A In lieu of appearing in person on Wednesday, March 22, 2023 (at the place and time indicated on the face of this Subpoena) to appear and deliver true and accurate copies of the foregoing requested documents, items and/or things, you are hereby authorized to instead send in the mail to: Matthew D. Hammes, Locher Pavelka Dostal Braddy & Hammes, LLC, 200 The Omaha Club, 2002 Douglas Street, Omaha, NE 68102, on or before Friday, March 17, 2023, true and accurate copies of the following documents, items and/or things: 1, All communications and correspondence of any type or variety between Mejia Roofing & Contractors, Inc. ““MRC”) and Millard Gutter Company, a Corporation doing business as Millard Roofing and Gutter (“Millard Gutter’), including any and all communications and correspondence between any of MRC owner, officer, manager, foreman, employee, representative, agent, subcontractor or attorney and any Millard Gutter owner, officer, manager, foreman, employee, representative, agent, contractors, suppliers, materialmen, subcontractors or attorney, pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC. 2. All communications and correspondence of any type or variety between Mejia Roofing & Contractors, Inc. (“MRC”) and Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC, including any and all communications and correspondence between any MRC owner, officer, manager, foreman, employee, representative, agent, subcontractor or attorney and any Quality Brands’, Gillick Enterprises, Inc.s’ and/or Gross Point Holdings, LLC’s owner(s), officer(s), manager(s), foreman, employee(s), representative(s), agent(s), contractors, suppliers, materialmen, subcontractor(s) or attorney(s), pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross ~ Point Holdings, LLC. 3. All bids, bid proposals, estimates, accepted bids, accepted proposals, accepted estimates, invoices, receipts, work orders, bills and any other writing of any type, variety or description pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC. 4, All documents, including but not limited to copies of all checks, accounting records, lien releases, waivers of mechanic’s or supplier’s lien, and any other writing of any type, variety or description reflecting any monies paid to Mejia Roofing & Contractors, Inc. (“MRC”) from any source for any work, labor and/or provision of any supplies, materials, equipment, or payment of any permits, fees, or other costs, pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC. 5. All documents reflecting the names of all persons, contractors, subcontractors, materialmen, or suppliers providing Mejia Roofing & Contractors, Inc. (“MRC”) with any work, labor and/or provision of any supplies, materials, equipment, or payment of any - permits, fees, or other costs, pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC. 6. All writings of any type, variety or description evidencing any and all work and labor actually performed by Mejia Roofing & Contractors, Inc. (“MRC”) or anyone acting on its behalf pertaining or relating to property located at or about 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC. 7. Any and all photographs, videos or other documents, items or things memorializing, evidencing, and/or documenting the work performed and/or goods provided by Mejia Roofing & Contractors, Inc. (“MRC”) or anyone acting on its behalf at the property located at 13225 Centech Road in Omaha, Sarpy County, Nebraska which is owned and/or operated by Quality Brands, Gillick Enterprises, Inc. and/or Gross Point Holdings, LLC. 8. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 1 attached hereto. 9. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 2 attached hereto. 10. Ali documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 3 attached hereto. 11. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 4 attached hereto. 12. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 5 attached hereto. 13. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 6 attached hereto. 14. All documents, items and/or things of any type, variety or description regarding or pertaining to Exhibit 7 attached hereto. Client: Millard Roofing & Gutters Project: Quality Brands of Omaha August 17, 2015 To: Millard Roofing & Gutters Project Address: Quality Brands of Omaha 14545 Industrial Road # 2 13255 Centech Blvd Omaha, NE 68144 Omaha, NE 68138 402-492-9494 PROPOSAL Objective: Main building Ballast roof section e Remove 1,025 sq of Ballast rock from roof e Remove 1,025 sq of .60 ml of EPDM membrane e Remove and install 1,025 sq of 2 layers of 2” Polyiso insulation board according to Firestone guidelines e Remove the EPDM membrane of the roof penetrations e Install 1,100 sq of new 4” Polyiso insulation board on 2 layers of 2” Polyiso insulation board according to Firestone guidelines e Install 1,100 sq of .60 mil Firestone EPDM, use on seam field the 6” seam tape according to Firestone guidelines Install the ballast rock over the new membrane according to Firestone guidelines e Install 400 pc of 12’X16’ concrete pavers according to Firestone guidelines e Install EPDM membrane flashing on 6 soil stacks, 22 pitch pans, 3 head stacks, and 8 runner curbs according to Firestone guidelines e Install 630 LF of gravel stop metal flashing and 890 Lf of gutter apron metal according to EXHIBI Firestone guidelines & fj 2910 Daniell Circle « Bellevue, NE 68123 + (402) 415-3045 , info@mejiaroofing.com * www.mejiaroofing.com PSuppDis000465 Client: Millard Roofing & Gutters Project: Quality Brands of Omaha Cost of project: S 513,000.00 TOTAL PROJECT COST: S 513,000.00 Cost includes dumpster, waste disposal, material cost, city permit and crane cost. WARRANTY: Includes 15-Year Warranty from Firestone Building Products. If you, , accept the services provided by Mejia Roofing & Contractors with the following terms, please sign at the space provided below: General Contractor must pay for 50% of the cost ($ 256,500.00) of the project by the completion date. e General Contractor must pay the remaining balance ($ 256,500.00) within 30 days of the date of the invoice**, Any additional (extra) work will be paid upon discussion. **1f the total amount has not been met after thirty (30) days of the date of the invoice, an additional 1% will be added to the total amount per week. Printed Name: Customer Signature: Date: you have any question regarding this proposal, please feel free to contact us at (402) 415-3045 or info@mejiaroofing.com. Sincerely, Omaha Contractor License #: 91130 Raul Mejia Rueda, Contractor NDOL Contractor Registration Number: 94929 2910 Daniell Circle + Bellevue, NE 68123 « (402) 415-3045 . info@mejiaroofing.com * www.mejiaroofing.com , PSuppDis000466 MEJIA ROOFING & CONTRACTORS Client: Millard Roofing & Gutters Project: Quality Brands of Omaha 2910 Daniell Circle « Bellevue, NE 68123 ¢ (402) 415-3045 info@mejiaroofing.com * www.mejiaroofing.com PSuppDis000467 | MEJIA ROOFING & CONTRACTORS Client: Millard Roofing & Gutters Project: Quality Brands of Omaha August 17, 2015 To: Millard Roofing & Gutters Project Address: Quality Brands of Omaha 14545 Industrial Road # 2 13255 Centech Blvd Omaha, NE 68144 Omaha, NE 68138 402-492-9494 "PROPOSAL Objective: Refrigeration Building TPO © Remove 314 sq of TPO membrane on 3 different sections e Install 346 sq of .60 mil Firestone TPO mechanically attached roof system on 3 different sections according to Firestone guidelines e Install 346 sq of 2 layers of 2 %” Polyiso insulation according to Firestone guidelines e Install new TPO membrane and flashing on 1 soil stacks, 2 head stacks, 7 curb penetrations, 20 runner curbs, and 1 roof access according to Firestone guidelines e Install 880 LF of gutter apron metal flashing and 60 LF of termination bar metal flashing according to Firestone guidelines Cost of project: S 175,000.00 TOTAL PROJECT COST: S 175,000.00 Cost includes dumpster, waste disposal, material cost, city permit and crane cost. WARRANTY: Includes 15-Year Warranty from Firestone Building Products. EXHIBIT i 2 2910 Daniell Circle + Bellevue, NE 68123 « (402) 415-3045 info@mejiaroofing.com * www.mejiaroofing.com PSuppDis000476 Client: Millard Roofing & Gutters Project: Quality Brands of Omaha if you, , accept the services provided by Mejia Roofing & Contractors with the following terms, please sign at the space provided below: ® General Contractor must pay for 50% of the cost ($ 87,500.00) of the project by the completion date. e General Contractor must pay the remaining balance (S 87,500.00) within 30 days of the date of the invoice**. e Any additional (extra) work will be paid upon discussion. the total amount has not been met after thirty (30) days of the date of the invoice, an additional 1% will be added to the total amount per week. Printed Name: Customer Signature: Date: If you have any question regarding this proposal, please feel free to contact us at (402) 415-3045 or info@mejiaroofing.com. Sincerely, Omaha Contractor License #: 91130 Raul Mejia Rueda, Contractor NDOL Contractor Registration Number: 94929 2910 Daniell Circle « Bellevue, NE 68123 □ (402) 415-3045 . info@mejiaroofing.com * www.mejiaroofing.com , PSuppDis000477 MEJIA ROOFING & CONTRACTORS Client: Millard Roofing & Gutters Project: Quality Brands of Omaha February 28, 2020 To: Millard Roofing & Gutters Project: Quality Brands of Omaha 14545 Industrial Road # 2 13255 Centech Blvd Omaha, NE 68144 Omaha, NE 68138 402-492-9494 PROPOSAL Objective: Main building Ballast roof section e Remove 1,025 sq of Ballast rock from roof e Remove 1,025 sq of .060 mil EPDM membrane e Remove 1,025 sq of 2 layers of 2” Polyiso insulation board e Remove the EPDM membrane off the roof penetrations e Install 1,100 sq of new 4” of 2 layers of Firestone Polyiso insulation board according to Firestone guidelines e Install 1,100 sq of .060 mil Firestone EPDM and use 6” seam tape on seam field according to □ Firestone guidelines e Install the ballast rock over the new membrane according to Firestone guidelines ¢ Install 400 pc of 12’ X 16’ concrete pavers according to Firestone guidelines e = Install EPDM membrane flashing on 6 soil stacks, 22 pitch pans, 3 head stacks, and 8 run curbs according to Firestone guidelines | EXHIBI e Install 700 LF of gravel stop metal flashing and 900 LF of gutter apron metal according t i Firestone guidelines □ e Insta!l 900 LF of box gutter and 600 LF of downspouts 4” xX 4” according to Firestone guidelines 2910 Daniell Circle « Bellevue, NE 68123 ¢ (402) 415-3045 , info@mejiaroofing.com * www.mejiaroofing.com PSuppDis000040 __) MEJIA ROOFING & CONTRACTORS Client: Millard Roofing & Gutters Project: Quality Brands of Omaha Cost of project: S 540,000.00 TOTAL PROJECT COST: S 540,000.00 (This price is good for 30 days) Cost includes dumpster, waste disposal, material cost, city permit and crane cost. Warranty: This includes a 15-Year warranty provided by Firestone Building Products Acceptance of Proposal If you, , accept the services provided by Mejia Roofing & Contractors with the following terms, please sign at the space provided below: @ Any additional (extra) work will be paid upon discussion. Initials e Contractor must pay 30% of the total balance ($162,000.00) by the delivery date of the project. Initials Contractor must pay another 30% of the total balance ($162,000.00) by the completion of the project. Initials e Contractor must pay the remaining 40% of the total balance ($216,000.00) must be paid within 30 days of the date of the invoice. ** Initials e Warranty will be given only when balance has been paid in full. Initials Printed Name: Customer Signature: Date: If you have any question regarding this proposal, please feel free to contact us at (402) 415-3045 or info@ mejiaroofing.com. Sincerely, Raul Mejia Rueda, Contractor Omaha Contractor License #: 91130 NDOL Contractor Registration Number: 94929 2910 Daniell Circle « Bellevue, NE 68123 ¢ (402) 415-3045 info@mejiaroofing.com * www.mejiaroofing.com □ PSuppDis000041 MEJIA ROOFING & CONTRACTORS Client: Millard Roofing & Gutters Project: Quality Brands of Omaha 2910 Daniell Circle « Bellevue, NE 68123 ¢ (402) 415-3045 , info@mejiaroofing.com * www.mejiaroofing.com PSuppDis000042 . Final Waiver of Mechanic’s or Supplier's Lien Between the Owner: Millard Roofing 14545 Industrial Rd #2 Omaha, NE 68144 And the Contractor: Mejia Keating & contradars Mig Oks) For the Project: Quality Brands WOMAN NE @B138 8 Soe The undersigned Mejia Roofing & Contractors, inc was employed to perform work or supply materials in connection with the construction or improvement of a building on the property at Quality Brands ere and was paid in full for the services rendered in the amount of = 7UEEE SPE OOURDOREH which property may be described as follows, to wit: Quality Brands 13255 Centech Rd Omaha, NE 68138 The undersigned does hereby acknowledge payment Check # 8298370144) for the labor, service and or material supplied for the aforesaid project, up to but including the below stated date, and hereby waives all right of lien and all claims which the undersigned has or may have on the above described property date of this instrument. in the State of Nebraska and the county of Douglas. Print > Sigttature of Representative for said company This lien waiver was subscribed and (sworn) (affirmed) signed before me: this Dayof ne, Goa A PENERAL Me ne of Nebraska i AYME T NEWMAN eapladenn My Comm, Exp, August 19, 2022 lgneture lotary Public AAffix Official Notary Seal EXHIBIT 8 HY eng PSuppDis000046 Gin Millard Roofing and Gutter Company Work Order - PO #: WO13677-6 i Oran astral Ra Order Date: 03/12/2020 millardrpoting Phone: (402) 492-9494 Primary Rep: Josh Roza Fax: (402) 965-8001 www.millardroofing.net Customer: : Quality Brands Contact 2: Dave Kinney Project Addrass: City: State: Zip: 13255 Centech Road Omaha NE 68138 Crew: Mejia Roofing _ Install Date: 2020-03-23 00:00:00 Completion Date: 2020-04-30 23:45:00 Noms) □□□ ee ee ee eo a ee # = Labor item Color Size aly Unit Cost Total eee Ot 1 Main ballast roof section 1.00 EA $540,000. $540,000. 00 Qo eee Grand Total: $540,000.00 0, | - | 62,090, Porth teed ~ [G20 . Prodenee dire F1e.0 □□ 5 ° 5Y HOO. — } b folk _— $f l b 2, 000 Page 1 . Tue, May 26 2020, 10:29 AM PSuppDis000048 Oo o£ 8 586 ESS FOS & stot Se ee g n J a ot Rs & x8 8 : 3 2 & Oo & oo 3 O as 8S eal am i ES : oD £ oO LL □□ 8 588 Ess oS oda 38 : TT 8 Y so: oF aa § a C¢ a 8 3 ga Sent: Monday, April 23, 2018 3:34 PM To: Matthew Hammes ; Walker, John Cc: Moyers, Rachel Subject: Re: Millard Roofing and Gillick Enterprises v. Nationwide/Depositors Matt: Please see attached Initial Disclosures from Plaintiff. I'm scanning in the documents and will send them on disk via mail with disclosure. Ted Boecker From: Matthew Hammes Sent: Friday, April 13, 2018 12:34 PM To: Walker, John; Ted Boecker Cc: Moyers, Rachel Subject: RE: Millard Roofing and Gillick Enterprises v. Nationwide/Depositors is perfectly fine with me. Let’s make service due on April 23 — thank you. If that doesn’t work for you and/or is unacceptable, would you let us know right away? Thank you. Matthew D. Hammes Locher Pavelka Dostal Braddy & Hammes, LLC The Omaha Club Douglas Street Omaha, NE 68102 Phone 402-898-7000 Fax 402-898-7130 E-Mail: mhammes@lpdbhlaw.com Web: http://Awww.|pdbhlaw.com Po Cia This e-mail (including attachments) may be attorney/client privileged and is confidential information covered by the Electronic Communications Privacy Act 18 U.S.C. 2510-2521 and any other applicable law, and is intended to be reviewed by only the individual, organization or entity named above. If you are not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any review, retention, dissemination, distribution or copying of this communication is strictly prohibited. Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system in to which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Locher Pavelka Dostal Braddy & Hammes, LLC or the author hereof in any way from its use. If you have received this communication in error, please immediately notify us by return e-mail. Thank you. From: Walker, John [mailto:jwalker@ldmlaw.com] Sent: Friday, April 13, 2018 12:20 PM Matthew Hammes; Ted Boecker Cc: Moyers, Rachel Subject: RE: Millard Roofing and Gillick Enterprises v. Nationwide/Depositors Matt, problem if we bump them back to April 23? I’m a little jammed up trying to get something out today and I a few hearings early next week. Let us know if that works for you. Thanks. ¢ JOHN M. WALKER PARTNER LAMSON unson, cuca aMurray BUILDING = BUGA N & 10306 Regency Parkway Drive | Omaha, NE 68114 Pil P: (402) 397-7300 | F: (402) 397-7824 jwalker@ldmlaw.com information contained in this email contains confidential information from Lamson, Dugan & Murray, LLP that is intended solely for recipient set forth above. Any redistribution, copying or other dissemination of the contents of this transmission is prohibited, Please be that the contents of this email may be intercepted or diverted through transmission over the internet and therefore the security of email cannot be guaranteed by the sender. Matthew Hammes [mailto:MHammes@Ipdbhlaw.com] Friday, April 13, 2018 11:52 AM Walker, John; Ted Boecker Millard Roofing and Gillick Enterprises v. Nationwide/Depositors High and Ted: Initial disclosures are due on April 15, 2018 — which is this Sunday. The ECF is also going down today at 12:00 p.m., through the weekend, to upgrade the system. With that in mind, | propose we all agree to serve Initial Disclosures on Monday, April 16, 2018. Is that acceptable to both of you? Please advise, and thank you. Matthew D. Hammes Locher Pavelka Dostal Braddy & Hammes, LLC 200 The Omaha Club 2002 Douglas Street Omaha, NE 68102 Phone 402-898-7000 Fax 402-898-7130 E-Mail: mhammes@lpdbhlaw.com Web: http:/Awww.|pdbhlaw.com This e-mail (including attachments) may be attorney/client privileged and is confidential information covered by the Electronic Communications Privacy Act 18 U.S.C. 2510-2521 and any other applicable law, and is intended to be reviewed by only the individual, organization or entity named above. If you are not the intended recipient or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any review, retention, dissemination, distribution or copying of this communication is strictly prohibited. Although this e-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system in to which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Locher Pavelka Dostal Braddy & Hammes, LLC or the author hereof in any way from its use. If you have received this communication in error, please immediately notify us by return e-mail. Thank you. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MILLARD GUTTER COMPANY, a ) CASE NO: 8:18-cv-23 Corporation d/b/a MILLARD ROOFING ) AND GUTTER, GILLICK ) ENTERPRISES, INC., and ) GROSS POINT HOLDINGS LLC, ) PLAINTIFFS’ INITIAL ) DISCLOSURES Plaintiffs, ) ) VS. ) ) NATIONWIDE INSURANCE a/k/a or ) d/b/a NATIONWIDE, and DEPOSITORS ) INSURANCE COMPANY, ) ) Defendants. ) Come Now Plaintiffs and for their initial disclosures states as follows: I. INDIVIDUALS LIKELY TO HAVE DISCOVERABLE INFORMATION Plaintiffs’ initial disclosure is made without the benefit of any discovery and accordingly may be supplemented. Jim Eggers, 14545 Industrial Road, Omaha, Nebraska 68144, 402-492-9494, Mr. Eggers would have knowledge regarding the construction process and procedures used by Millard Roofing and Gutter, as the General Manager of the Plaintiff Millard Gutter, including knowledge regarding the assessment of damage to the subject property, obtaining authorization and assignments to proceed with work, and communication with adjusters and representatives of Defendants regarding the insured’s claim, Josh Roza, 14545 Industrial Road, Omaha, Nebraska 68144, 402-492-9494, Salesperson. Would have knowledge of the assessment of damage to the subject property, obtaining authorization and assignments to proceed with work, and communication with adjusters and representatives of Defendants regarding the insured’s claim. Kelli Eggers, 14545 Industrial Road, Omaha, Nebraska 68144, 402-492-9494. Ms. Eggers serves as President of the Plaintiff, Mrs. Eggers would have knowledge regarding billings and the customer account. Rhett Shepherd, 14545 Industrial Road, Omaha, Nebraska 68144, 402-492-9494. Salesperson. Would have knowledge of inspection and assessment of damage to property. Carrie Ann Buchanan, 14545 Industrial Road, Omaha, Nebraska 68144, 402-492-9494. Administrative Assistant would have knowledge of scheduling and transmittal of various documents to insured or Nationwide. Jayme Newman, 14545 Industrial Road, Omaha, Nebraska 68144, 402-492-9494. Administrative assistant would have knowledge of scheduling and transmittal of various documents to insured or Nationwide, Various administrative staff of Millard Roofing and Gutter: various secretarial or support staff may have knowledge of receipt or transmittal of paperwork or calls coming into office from the insured and/or representatives of Defendants. Employees of Quality Brands, Gillick Enterprises, Gross Point Holdings, and/or affiliates thereof, including: Anthony Gillick, 13255 Centech Road, Omaha, NE 68138. Would have knowledge of damage to property, defendants’ bad faith, and communication with Millard Gutter and the Defendant insurance companies. Employees of Nationwide and/or Depositors Insurance Company, including David Heller, 3820 109" Street, Dept. 5574, Des Moines, Iowa 50391-5575 and Steve McDonnell, One Nationwide Gateway, Dept. 5574, Des Moines, Iowa 50391. Would have knowledge of Defendants’ assessment of damage and response to the subject claim. Employees of HAAG Engineering, 4949 W. Royal Lane, Irving, Texas 75063, including David L. Teasdale and Scott J. Morrison, understood to have conducted some analysis of the subject property at the request of Nationwide/Depositors Insurance Company. Employees of Grayco, 300 Ozark Trail Drive, Suite 210, Ellisville, MO 63011, including Christopher R. Demien, understood to have conducted some analysis of the subject property at the request of Nationwide/Depositors Insurance Company. Carl E. Martin, Engineering Perspective, Inc., 2601 S. Hub Dr. North, Ste. A, Independence, Missouri 64055, conducting engineering analysis of damage to subject property. Employees of subcontractors and suppliers may have knowledge regarding damage and proposed work to be performed by subcontractors, including Raul Mejia Rueda of Mejia Roofing, 2910 Daniell Circle, Bellevue, NE 68123; SOS Heating, Cooling & Electrical Co., Ine., 8314 Maple Street, Omaha, NE 68134, and MWSS, Inc., 28602 S. State Route D., Cleveland, MO 64734. Il. CATEGORIES AND LOCATION OF DOCUMENTS: 1. Millard Roofing maintains a file for its insured customer who assigned a claim for repair of storm damage, which would include a copy of the authorization and assignment; a copy of any adjustment/estimate of loss the insured or Nationwide/Depositors Insurance has provided to Millard Roofing for the insured’s property, Millard Roofing’s estimate(s) of damage; documentation reflecting measurements of the structures to be repaired, engineering estimates obtained for assessment of damage to the subject property and communication to or from Nationwide/Depositors Insurance regarding the claim. As work is performed additional documentation, including invoices and statements will be generated based upon the work performed, 2. Plaintiffs understand that Nationwide/Depositors would maintain a file for the subject claim, which Plaintiffs anticipate includes Nationwide/Depositor’s estimate of the cost of repair; a copy of the policy(ies) issued to the insured; any communication to or from the insured regarding the claim; any communication to or from Millard Gutter regarding the claim; copies of communication transmitted to or received from agents and consultants, including Drayco and HAAG Engineering, as well as copies of any checks or payments relative to the insured’s claim. Plaintiffs also anticipate that Nationwide/Depositors maintains one or more manuals, memos, or employee directives concerning the manner in which storm damage claims are assessed and valued. II. COMPUTATION OF DAMAGES Millard Gutter can only estimate the damages, as all work has not yet been completed due to the Defendants’ failure and refusal to approve necessary repairs in accordance with industry standards and Defendants’ policy obligations. Millard Gutter calculates that damages are not less than the current Estimate for repairs of $2,976,021.80, together with the costs of engineering reports from Engineering Perspective, Inc. to validate the scope of damage of $4,986.64 and $2,028.00, for a total estimated unpaid balance of $2,983,036.44, which would be reduced by the $1,000 deductible understood to be applicable to the subject policy. It should be noted that the final claim may vary to the extent additional damage or scopes of repair work are identified during the repair process. In addition, Gillick Enterprises, Gross Point Holdings and/or Quality Brands should be re-imbursed for the cost of core testing of the property, in the amount of $813.37, which has been paid. In addition, it is anticipated that Gillick Enterprises, Gross Point Holdings, and/or Quality Brands will have losses associated with business interruption during the repair process in addition to consequential damages due to Defendants’ bad faith. IV. INSURANCE Plaintiffs, at this time, are not aware of any insurance agreement under which any persons carrying on an insurance business may be liable to satisfy all or part of a judgment which may be entered in favor of Plaintiffs or to indemnify or reimburse Defendants for payments to satisfy the judgment, other than the insurance policies issued by the Defendants to Gillick Enterprises, Inc, and/or affiliates thereof, including the policy identified as Policy Number ACP CPPD 7245729129, MILLARD GUTTER COMPANY, a Corporation d/b/a MILLARD ROOFING AND GUTTER, Plaintiff /s/ Theodore. R. Boecker, Jr. By: fir Clim, Theodore R. Boecker, Jr., NE #20346 BOECKER LAW, P.C., L.L.O, 11225 Davenport Street, Suite 100 Omaha, Nebraska 68154 Tele; (402) 933-9500 Fax: (402) 933-7983 Email: boeckerlaw@msn.com and GILLICK ENTERPRISES, INC., and GROSS POINT HOLDINGS, LLC, Plaintiffs, By: J/s/Johw M. Walker John M. Walker, #23250 LAMSON, DUGAN & MurRAY LLP 10306 Regency Parkway Drive Omaha, NE 68114-3743 Tel: (402) 397-7300 Fax: (402) 397-7824 Fax E-mail: jwalker@ldmlaw.com ATTORNEYS FOR PLAINTIFFS GILLICK ENTERPRISES, INC., and GROSS POINT HOLDINGS, LLC BOEC1K04E5R N L. A11W5t,h P S.tCr.e,e Lt .L.O. Suite 125 Theodore R. Boecker, Jr. Omah -a -, - -N ---E -- - 6 8154 (licensed in Iowa and Nebraska) phone: (402) 933-9500 fax: (402) 933-7983 email: Boeckerlaw@msn.com Tuesday, March 21, 2023 Magistrate Judge Nelson Re: Millard Gutter Co./Gillick vs. Nationwide / Case No: 8:18-cv-23 Dear Magistrate Judge Nelson: You have requested a submission on the dispute over the issuance of subpoenas. Millard Gutter’s position is that the subpoenas are untimely and seek information outside the appropriate scope of relevant discovery. This case involves a dispute over coverage of loss to a commercial building arising out of storm damage. Both the insurance company and the contractor, Millard Gutter, base their pricing upon Xactimate estimating software. There are two (2) material differences in the pricing. Most significantly, Millard Gutter’s invoices includes replacement of the entire Gillick roof for two (2) alternative independent reasons: (1) that the roof suffered direct physical loss, which required repair and replacement in accordance with applicable standards arising from hail impact; and, (2) separately, the scope of repairs approved by the insurance company triggered replacement of the roof because the authorized repairs entailed removal of portions of the existing EPDM roofing system which, in turn, triggered the requirement to replace the entire roof because the age of the existing roof rendered it irreparable – the new EPDM portions could not be adhered to the old EPDM portions and under Nebraska law the entirety of the roof was then covered because it represented consequential physical damage from the authorized repairs. The insurer does not recognize any replacement of the roof. The other main difference in pricing is that the insurer has only paid actual cash value at 2012 prices. Back in 2019, Defendants requested production in request number 9 of “all documents evidencing any type of payment” for “any materials used”. Millard Gutter objected that the requested “sought confidential and proprietary information which was irrelevant to any of the claims or issues in this proceeding. Both parties utilize Xactimate standard pricing to determine the fair and reasonable proposed charges for the work and the Defendants, as its regular course, custom and practice do not seek production of any materials purchased.” Similarly, request number 4 sought “any and all invoices” issued by any subcontractor or supplier. Millard Gutter objected noting “disclosure of any subcontractor or supplier invoicing as such information is irrelevant and immaterial to any claim at issue and dispute in these proceedings, as Plaintiff’s internal costs are not relevant to the fair and reasonable charges charged for the scope of work, as is the custom and practice within the industry” and noting Defendants “utilizing Xactimate standard pricing to determine fair and reasonable charges” and that Defendants had no “custom or practice” of seeking production of any subcontractor or supplier invoices on other projects”. These objections were pending since September 2019 and never challenged. Likely recognizing that their time to seek discovery had passed, by virtue of the fact that they did not address the objection for years, after the close of discovery and after the Court’s last scheduling conference, the Defendants suggested they were now going to issue subpoenas and set Deposition Duces Tecums. Such items had not been mentioned at all by the Defendant during the last conference with the Court, nor in advance of the close of the discovery deadline. The research that Plaintiff has conducted suggests that Courts impose the discovery deadline on Rule 45 subpoenas, consistent with deposition deadlines and the like. See, e.g., Rosciszewski v. Marquette Transp. Co., LLC, No. 17-06592, 2018 U.S. Dist. LEXIS 120684, 2018 WL 3475368, at *1 (E.D. La. July 19, 2018) (citing at 9A Fed. Prac. & Proc. Civ. § 2452;Goldstein v. F.D.I.C., 494 B.R. 82, 87 ("[C]ourts have held that 45 subpoenas are subject to the same discovery deadlines and orders as any other type of discovery."); Abrams v. Ciba Specialty Chemicals Corp., 265 F.R.D. 585 (S.D. Ala. 2010) (subpoena duces tecum was denied because it would have allowed defendant to circumvent discovery deadline); Surbella v. Foley, No. 05-758, 2006 U.S. Dist. LEXIS 55749, 2006 WL 300749 (D.C. Ohio 2006) (A subpoena issued before the close of discovery that scheduled a deposition after the end of the discovery period was not enforced); Alper v. United States, 190 F.R.D 281 (D.C. Mass. 2000)(Rule 45 subpoenas are subject to parameters established by Rule 26))….Rosciszewski, 2018 U.S. Dist. LEXIS 120684, 2018 WL 3475368, at *1 (citing 9A Fed. Prac. & Proc. Civ. § 2459); Becnel v. Salas, No. 17-17965, 2018 U.S. Dist. LEXIS 17361, 2018 WL 691649, at *2 (E.D. La. Feb. 2, 2018) (citing Williamson v. Horizon Lines LLC, 248 F.R.D. 79, 83 (D. Me. 2008) ("'parties should not be allowed to employ a subpoena after a discovery deadline to obtain materials from third parties that could have been produced before discovery'") (quoting 9A C. WRIGHT, A. MILLER, M. KANE, R. MARCUS, A. SPENCER, A. STEINMANN, FEDERAL PRACTICE AND PROCEDURE § 2452 (3d ed. 2018)); In re Papst Licensing GmbH Patent Litigation, No. 99-1298, 2001 U.S. Dist. LEXIS 10012, 2001 WL 797315, at *21 (E.D. La. July 12, 2001) (holding that third-party subpoenas duces tecum constitutes discovery and are subject to the same scope and limitations on discovery established in FED. R. CIV. P. 26(b)(1) and (2)) (citations omitted); Black v. DMNO, LLC, No. 16-02708, 2018 U.S. Dist. LEXIS 8503, 2018 WL 488991, at *3 (E.D. La. Jan. 19, 2018) (stating subpoena duces tecum subject to discovery deadline). See alsoMcNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995) (stating that "when a plaintiff . . . is aware of the existence of documents before the discovery cutoff date and issues discovery requests including subpoenas after the discovery deadline has passed, then the subpoenas and discovery requests should be denied") and Rice v. United States, 164 F.R.D. 556, 557, 558 (N.D. Okla. 1995) (stating that "Rule 45 subpoenas duces tecum . . . constitute discovery [and that] [d]efendant was not free . . . to issue subpoenas duces tecum after the discovery deadline"). Basically, in the form of the Rule 45 subpoenas, Defendants are seeking to obtain documents which the Plaintiff objected to producing back in 2019. Had there been an appropriate challenge, the challenge could have been framed by appropriate pleadings, affidavits, deposition excerpts and briefing. Defendants are seeking to circumvent that process now with the belated Rule 45 subpoenas. The caselaw cited above appears to preclude that. If the Defendant is going to be allowed to issue subpoenas, then it should be a two (2) way street and no time limitation should apply to either of the Plaintiffs as there was material requested of the Defendant within the time allowed for discovery, which Defendant ignored and failed to produce. Particularly problematic for Plaintiff is the fact that it issued a Deposition Duces Tecum in connection with a 30(b)(6) notice first sent in July 2022 requesting production of the claim file and any material reviewed in prep for the deposition – because of Defendant’s delays, that deposition did not actually take place until February 2023. At the deposition, the Defendant did not produce its claim file, even though the 30(b)(6) deposition topics would have required review of such file in order to testify as to the topics. The posture taken by the Defendant was it was too late to request such material, even though the request had been in place for 7 months prior to the deposition. If the subpoenas are allowed, then the Defendants should be required to produce the claim file, as requested in the 30(b)6 notice and it should be clear that if the Plaintiffs wish to issue third party subpoenas for document production, they are also allowed to do so. Theodore Boecker cc: Matt Hammes/John Walker