The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Defendants Waterfront Homes Marina and City Island Yacht Sales, Inc. ("defendants") move to dismiss the complaint of plaintiff Joseph J. Vaccaro ("plaintiff") under Federal Rule of Civil Procedure 37(b)(2)(A)(v) for failure to comply with United States Magistrate Judge Michael H. Dolinger's Order, dated June 22, 2011, directing plaintiff to respond to certain document requests. In the alternative, defendants move to preclude plaintiff (i) under Federal Rule of Civil Procedure 37(b)(2)(A)(ii) from introducing in evidence any documents called for in those documents requests; (ii) under Federal Rule of Civil Procedure 37(c)(1) from introducing in evidence the factual testimony of Jim Dias; (iii) under Federal Rule of Civil Procedure 37(c)(1) from introducing in evidence any testimony regarding lost charter damages; and (iv) under Federal Rule of Evidence 802 from introducing in evidence online weather reports. For the reasons stated below, defendants' motion is denied in part and granted in part.
On May 27, 2010, plaintiff filed suit against defendants, seeking to recover damages on March 13, 2010 to his yacht that allegedly resulted from the failure of the mooring facilities at defendants' marina. Compl. ¶ 9. Though plaintiff has periodically benefited from the advice of a friend who is a lawyer, no attorney has ever appeared on his behalf in this case, and he proceeds pro se. On February 23, 2011, this case was referred to United States Magistrate Judge Michael H. Dolinger for general pre-trial purposes.
On March 16, 2011, Judge Dolinger held a conference at which he ordered plaintiff to serve initial disclosures and interrogatory answers on defendants, Henry Decl. in Supp. of Defs.' Mot. In Limine ("Second Henry Decl.") Ex. E Conf. Tr. 10:12-18, and set May 31, 2011 as the deadline for the parties to complete fact discovery and for plaintiff to designate any experts and produce any expert reports, June 7, 2011 as the deadline for defendants to designate any experts and produce any expert reports, and June 15, 2011 as the deadline for the parties to complete expert discovery. Id. at 17:24-18:2. At this conference, plaintiff explained that his hope for a swift disposition and an accelerated discovery schedule was partially premised on the fact that he "usually [has] a charter opportunity [for his yacht] in July at $75,000 in New England," an opportunity that he would miss should his yacht not be repaired soon. Id. at 16:16-17. On April 6, 2011, Judge Dolinger held a further conference at which he repeated the discovery schedule. Second Henry Decl. Ex. F Conf. Tr. 4:17-24.
On May 2, 2011, defendants deposed plaintiff. Of relevance here, defendants' counsel questioned plaintiff on whether he had "ever leased out [his] boats." Henry Decl. in Supp. of Defs.' Mot. to Preclude and Compel ("First Henry Decl.") Ex. F Dep. Tr. 179:22-23.*fn1 In the ensuing line of questions, defendants' counsel learned that in 2010 plaintiff allegedly had missed an opportunity to charter his damaged yacht for $75,000 and that in July 2011 plaintiff allegedly would have a similar charter opportunity for $75,000. Id. at 179:22-182:23. On May 3, 2011, defendants served on plaintiff document requests stemming from this deposition, including two requests for documents evidencing offers to charter his yacht during the summer of 2010 and 2011. See First Henry Decl. Ex. D.*fn2
On June 6, 2011, Judge Dolinger held a final conference at which several relevant events occurred. First, defendants' counsel indicated that he intended to serve three expert reports on plaintiff on the following day, June 7, 2011, the applicable deadline. Second Henry Decl. Ex. G Conf. Tr. 2:15-19. In connection with this statement, defendants' counsel observed that the deadline for plaintiff to similarly serve any expert reports had passed on May 31, 2011. Id. Second, defendants' counsel asserted that document requests had been served on plaintiff but that plaintiff had not yet responded, representations that plaintiff did not contest. Id. at 4:14-25. Third, in the course of describing these document requests, defendants' counsel stated that "Mr. Vaccaro indicated he is entitled to . . . damages because somebody has offered to charter his boat." Id. at 9:12-20. Fourth, Judge Dolinger instructed defendants' counsel to file any request to compel responses to these document requests or to seek other relief by June 8, 2011. Id. at 9:21-10:1.
On June 8, 2011, defendants moved (i) to preclude plaintiff from offering evidence related to lost charter damages and (ii) to compel plaintiff to respond to those outstanding document requests that were unrelated to lost charter damages. See Defs.' Notice of Mot. to Preclude and Compel 1. On June 17, 2011, plaintiff stated in opposing the motion to preclude that "[t]here is no document for chartering during summer of 2010 and 2011" and that "[p]laintiff has no objection to an order precluding such 'non-existent' charter document." Pl.'s Affirm. in Opp'n to Defs.' Mot. to Prec1ude and Compel 1 (emphasis in original). He proceeded to assert "[h]owever [that] plaintiff cannot be precluded from offering testimonial evidence on the state of the charter market in 2010 and 2011 for [similar] vessels." Id. On June 22, 2011, Judge Dolinger granted defendants' motion in part, stating in an endorsed order:
Plaintiff is precluded from offering at trial any evidence concerning lost charters. He is further ordered to serve by June 30, 2011 responses to defendants' Document Requests 1-6 and 9-12. Insofar as defendants seek preclusion of any testimony at trial about the state of the charter market, absent expert testimony (which plaintiff never designated) we are unclear as to how he would provide competent evidence, but the ruling as to admissibility of such testimony is for the trial judge.
Second Henry Decl. Ex. H.
On June 22, 2011, plaintiff wrote a letter to Judge Dolinger in which he said, "Judge Buchwald had ordered that defendant was to complete its expert examination and report prior to plaintiff's submission." Second Henry Decl. Ex. I.*fn3
Seemingly because he had by then received defendants' expert reports, plaintiff continued, "[t]herefore I now notify defendant that I have engaged Mr. Jim Dias to offer factual testimony on prevailing costs of repair pertinent to [the] yacht . . . and where necessary and proper to offer expert opinion on costs." Id. On June 24, 2011, Judge Dolinger stated in an endorsed order:
The prior orders of this court speak for themselves. Plaintiff was given a full opportunity to prepare any expert-witness case, and he failed to do so within the time specified. Hence any proffer of expert-witness ...