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L.W. Matteson, Inc. v. Sevenson Environmental Services, Inc.

United States District Court, Second Circuit

May 23, 2013

L.W. MATTESON, INC., Plaintiff,
v.
SEVENSON ENVIRONMENTAL SERVICES, INC., Defendant.

DECISION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

In accordance with 28 U.S.C. ยง 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #100.

Currently before the Court is plaintiff L.W. Matteson, Inc.'s ("Matteson's"), first motion in limine seeking to preclude evidence or argument not directly relevant to a determination of the number of 100% pay time hours. Dkt. #108. Specifically, Matteson seeks to preclude evidence or argument that:

1. Matteson failed to perform levels of production promised to defendant Sevenson Environmental Services, Inc. ("Sevenson"), as required under the terms of the Purchase Order and Principal Contract;
2. Matteson failed to provide a sufficient number of skilled workers, and failed to provide equipment in good working order to perform the dredging work;
3. Matteson defaulted in its performance of the Purchase Order;
4. As a result of Matteson's default, Sevenson was required to provide its own equipment and personnel to perform the work which Matteson agreed to perform;
5. Matteson warranted to Sevenson that Matteson would be able to excavate an average rate of 12, 000 in situ cubic yards per day of fly ash;
6. Matteson breached the warranty of performance which it made to Sevenson, causing Sevenson to incur an additional $4, 100, 000 to perform work which Matteson had agreed to perform;
7. Sevenson is entitled to a set-off in the amount of $4, 100, 000 against any monies it may owe to Matteson;
8. Sevenson representatives conferred extensively with a representative of Matteson in order to submit a proposal to the Tennessee Valley Authority ("TVA");
9. Matteson represented to Sevenson that Matteson's dredging equipment was capable of removing fly ash from the Emory River at an average daily rate of 12, 000-20, 0000 in situ cubic yards, and that such equipment was in sufficient condition to perform such ash removal;
10. Sevenson relied upon representations by Matteson in submitting a proposal to the TVA in which Sevenson identified Matteson as its dredging subcontractor and estimated its average daily rate of ash removal to be 12, 500 in situ cubic yards;
11. The principal contract between Sevenson and the TVA modifies any of the rights or obligations under the purchase order that ...

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