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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

IN RE SKANSKA USA CIVIL § 

SOUTHEAST INC. AND § ADMIRALTY RULE 9(H) 

SKANSKA USA, INC. AS § 

OWNERS OF THE BARGE KS § CIVIL ACTION NO. 

5331, PRAYING FOR § 3:20-CV-05980 – RV/MJF 

EXONERATION § 

FROM OR LIMITATION § SENIOR DISTRICT JUDGE 

OF LIABILITY § 

 § LACEY A. COLLIER 

SKANSKA’S MOTION AND MEMORANDUM TO STRIKE 

DECLARATION AND ARGUMENTS RELATED THERETO OR 

ALTERNATIVELY, MOTION FOR LEAVE TO FILE A SUR-REPLY TO 

CLAIMANTS’ SPOLIATION AND RULE 37 MOTION FOR SANCTIONS 

 COMES NOW, Skanska USA Civil Southeast Inc. and Skanska USA, Inc. 

(collectively “Skanska”), by and through undersigned counsel, and moves to strike 

the Declaration of Michael Claramitaro attached to Claimants’ Reply and arguments 

related thereto raised for the first time on reply. In the event the Court denies 

Skanska’s motion to strike, Skanska moves for leave to file a Sur-Reply to 

Claimants’ Spoliation and Rule 37 Motion for Sanctions (“Motion for Rule 37 

Sanctions”) and in support states as follows: 

 Claimants had weeks to prepare its Motion for Rule 37 Sanctions, which was 

38 pages long and attached almost 2,100 pages of exhibits. Skanska had four (4) 

days to respond to the Motion for Rule 37 Sanctions and filed its Opposition on 

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August 6, 2021. Before Skanska’s Opposition was filed, Claimants moved for leave 

to file a Reply, which was granted. Importantly, Claimants did not inform the Court 

or Skanska that it intended to attach new alleged evidence to its Reply and make 

arguments related to that new evidence. Claimants had given three (3) days to 

prepare its Reply. 

Claimants’ Reply improperly attaches new purported evidence in support of 

its Motion for Rule 37 Sanctions in the form of the Declaration of Michael 

Claramitaro (the “Declaration”), who works for Claimants’ ESI vendor. Claimants 

could have and should have submitted the Declaration with its original Motion for 

Rule 37 Sanctions but decided instead to submit with its Reply, presumably to 

foreclose Skanska from rebutting any of the allegations in the Declaration. 

“As we repeatedly have admonished, arguments raised for the first time in a 

reply brief are not properly before a reviewing court.” Herring v. Secretary, Dep't 

of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005)) citing United States v. Coy, 

19 F.3d 629, 632 n. 7 (11th Cir. 1994) (citation omitted); see also United States v. 

Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002) (Court need not address issue raised 

for first time in reply brief), cert. denied, 539 U.S. 951, 123 S.Ct. 2628, 156 L.Ed.2d 

643 (2003); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999) (emphasis 

added) (issue raised for first time in reply brief waived); United States v. Martinez, 

83 F.3d 371, 377 n. 6 (11th Cir. 1996) (declining to consider arguments raised for 

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the first time in a reply brief); Zern v. Inch, No. 3:18CV731-RV-HTC, 2020 WL 

609295, at *5 (N.D. Fla. Jan. 3, 2020), report and recommendation adopted, No. 

3:18CV731-RV-HTC, 2020 WL 608280 (N.D. Fla. Feb. 7, 2020) (“The Court 

cannot consider that argument, however, because Zern cannot amend his petition 

through arguments made in a reply.”). Claimants should not be permitted to gain a 

tactical advantage by submitting a Declaration that Skanska cannot rebut. See e.g. 

Hardy v. Jim Walter Homes, Inc., 2008 WL 906455, *8 (S.D. Ala. Apr. 1, 2008) (“In 

order to avoid a scenario in which endless sur-reply briefs are filed, . . . or a movant 

is incentivized to save his best arguments for his reply brief so as to secure a tactical 

advantage based on the nonmovant's lack of opportunity to rebut them, this Court 

does not consider arguments raised for the first time in a reply brief.”). See also 

Tortorigi Transp., LLC v. Burkhalter Rigging, Inc., No. 2:18-CV-00939-KOB, 2018 

WL 11210034, at *1 (N.D. Ala. Dec. 20, 2018) (“Plaintiff attempted to supplement 

its reply brief . . . with 800 pages of evidence, (doc. 25), but the court struck the brief 

and supplemental evidence because the law does not allow sandbagging.”) citing 

Mitchael v. Intracorp, Inc., 179 F.3d 847, 855 (10th Cir. 1999) (finding that a district 

court did not abuse its discretion for striking affidavits offered by the plaintiffs in an 

attempt to sandbag the defendants); Klayman v. City Pages, No. 5:13-cv-143-Oc22PRL, 2015 WL 1546173, at *8 n.6 (M.D. Fla. Apr. 3, 2015) (noting that 

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sandbagging may have been “intended as some kind of gamesmanship, but it stings 

of poor judgment at best, negligence at worst”). 

Although Claimants may claim that the re-production of the cell phone data 

was only completed on August 3, 2021, Claimants had all the same data in the prior 

cell phone data productions, and Claimants’ ESI vendor could have conducted the 

very same analysis on the earlier cell phone data production. By way of example, 

Claimants were able to affirmatively utilize text messages from the prior cell phone 

data production in support of its Motion for Partial Summary Judgment, which was 

filed before the re-production of cell phone data. Moreover, the issues related to 

OBJ characters appearing in cell phone data were discussed at various status 

conferences. In addition, if the evidence was not fully available, Claimants could 

have waited to file its Motion for Rule 37 Sanctions until the Declaration or 

depositions were complete. 

Accordingly, because Claimants failed to include the Declaration and 

arguments related thereto in its Motion for Rule 37 Sanctions and Claimants are not 

permitted to supplement the record with purported new evidence for the first time in 

its Reply, Skanska moves to strike the Declaration and arguments related thereto 

contained in Claimants’ Reply. 

 If the Court does not strike the Declaration and arguments related thereto from 

Claimants’ Reply, Skanska seeks leave to file a Sur-Reply to address the allegations 

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contained in the Declaration and arguments related thereto. In particular, Skanska, 

if leave is granted, will submit its own ESI Declaration that will oppose the 

Declaration submitted by Claimants. Skanska will be prejudiced by not having an 

opportunity to refute and respond to the new allegations and arguments contained in 

the Declaration and Reply, which Claimants could have submitted sooner to allow 

Skanska an opportunity to respond in its Opposition. The prejudice to Skanska is 

heightened by the fact that Claimants’ Motion for Rule 37 Sanctions seeks the 

ultimate sanction of complete dismissal of Skanska’s action for limitation of 

liability, which relief is tantamount to that sought in a summary judgment motion. 

Skanska respectfully requests that the Court strike the Declaration attached to 

Claimants Reply and arguments related thereto or if not stricken, grant leave for 

Skanska to file a Surreply, with supporting Declaration, within three (3) days of the 

Court’s Order – the same amount of time this Court provided to Claimants to prepare 

their Reply. 

 [SIGNATURE FOLLOWS ON NEXT PAGE] 

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/s/ Scott A. Remington 

SCOTT A. REMINGTON 

Florida Bar No. 122483 

JEREMY C. BRANNING 

Florida Bar No. 507016 

ELIZABETH C. BILLHIMER 

Florida Bar No. 0028519 

CLARK PARTINGTON

P.O. Box 13010 

Pensacola, FL 32591-3010 

Telephone: (850) 434-9200 

Facsimile: (850) 432-7340 

and 

DEREK A. WALKER 

Admitted Pro Hac Vice 

KENNETH H. TRIBUCH 

Florida Bar No. 986887 

Harold. K. Watson, Esq. 

Derek A. Walker, Esq. 

Charles P. Blanchard, Esq. 

Jon W. Wise, Esq. 

CHAFFE MCCALL, LLP 

801 Travis, Suite 1910 

Houston, Texas 77002 

Telephone: (713) 546-9800 

Facsimile: (713) 546-9806 

Attorneys for Skanska USA Civil Southeast 

Inc. and Skanska USA, Inc. 

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CERTIFICATE OF COMPLIANCE AS TO WORD COUNT 

 I hereby certify that, as required by Local Rule 7.1(F), this Motion for 

Extension of Time contains 1,074 words, counted as provided in Local Rule 

7.1(F). 

/s/ Elizabeth C. Billhimer

ELIZABETH C. BILLHIMER 

CERTIFICATE OF COMPLIANCE AS TO ATTORNEY CONFERENCE 

Skanska conferred with Claimants’ counsel. Claimants oppose Skanska’s 

motion to strike but offered to not object to the filing of a surreply if Skanska agreed 

to withdraw its motion to strike. Skanska does not agree because Claimants are not 

allowed to submit new evidence/argument on reply. 

/s/ Elizabeth C. Billhimer

ELIZABETH C. BILLHIMER 

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that a copy of the foregoing has been furnished to the 

following through the Court’s CM/ECF electronic filing system on this 10th day of 

August, 2021: 

Brian Barr, Esq. 

Christopher Paulos, Esq. 

Levin, Papantonio, Thomas, Mitchell, 

Rafferty & Proctor, P.A. 

316 South Baylen Street 

Pensacola, Florida 32502 

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Bryan F. Aylstock, Esq. 

Justin G. Witkin, Esq. 

Douglass A. Kreis, Esq. 

Neil D. Overholtz, Esq. 

Nathan C. Bess, Esq. 

Bobby J. Bradford, Esq. 

Stephen H. Echsner, Esq. 

E. Samuel Geisler, Esq. 

Aylstock, Witkin, Kreis & Overholtz, PLLC 

17 East Main Street, Second Floor 

Pensacola, Florida 32502 

Service E-Mail: sgeisler@awkolaw.com 

 nbess@awkolaw.com 

 sallyteam@awkolaw.com 

Thomas F. Gonzalez, Esq. 

J. Nixon Daniel, III, Esq. Beggs & Lane, RLLP 

501 Commendencia Street 

Pensacola, Florida 32502 

Service Email: jnd@beggslane.com 

 tfg@beggslane.com 

Attorneys for Claimants 

/s/ Elizabeth C. Billhimer

ELIZABETH C. BILLHIMER 

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