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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

PAYCARGO FINANCE LP,

CASE NO.: 1:22-cv-22707-KMW

Plaintiff,

v.

ASPEN AMERICAN INSURANCE 

COMPANY,

Defendant,

and 

BAY MARITIMES INC.,

Nominal Defendant.

____________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO 

EXCLUDE WITNESS FROM TESTIFYING IN TRIAL AND INCORPORATED 

MEMORANDUM OF LAW [ECF 65]

Plaintiff PAYCARGO FINANCE, LP (“Plaintiff”), by and through the undersigned 

counsel, hereby files its Response in Opposition to Defendant Aspen American Insurance 

Company’s (“Defendant”) Motion to Exclude Witness from Testifying at Trial and Incorporated 

Memorandum of Law [ECF 65](hereinafter, the “Motion”), and in support thereof, states as 

follows:

ARGUMENT AND INCORPORATED MEMORANDUM OF LAW

I. DEFENDANT’S MOTION IS UNTIMELY TO THE EXTENT THAT IT WAS 

FILED AFTER THE DEADLINE FOR THE FILING OF MOTIONS IN LIMINE AND 

DISCOVERY RELATED MOTIONS HAD ELAPSED

In the instant case, the Court’s Scheduling Order further provided that the “Parties shall 

each file one motion in limine in accordance with Section IV below. All motions in limine must 

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be filed at least six weeks before calendar call.” The deadline for filing any motion(s) in limine, 

pursuant to this Court’s Scheduling Order of December 6, 2022 [D.E. 22], was August 28, 2023. 

Defendant filed its Motion on September 26, 2023. While Defendant did not title its Motion as a 

motion in limine, an examination of the plain language and the substance thereof demonstrates that 

the Motion is in fact a motion in limine, as it affirmatively seeks the exclusion of specific evidence 

or arguments from being presented at trial. 

Notwithstanding the aforesaid misnomer with respect to the title of the Motion, the Court 

must deny same on procedural grounds, as Defendant has had ample time to file its Motion within 

the timeframe prescribed by the Court’s Scheduling Order, yet made no effort to do so; nor did 

Defendant make any effort to extend the deadlines provided in the Scheduling Order, either by 

stipulation of the parties to this litigation or by court order, as provided in Fed. R. Civ. P. 6. 

Separate and apart from the Motion having been filed after the expiration of the deadline 

for the filing of motions in limine, said Motion was also filed beyond the expiration of the 

discovery cutoff deadline, which elapsed on May 10, 2023, and as such, to the extent that the 

Motion addresses issues pertinent to discovery, said Motion is untimely and should be denied. The 

Southern District of Florida Local Rules impose the obligation on the parties to submit any 

discovery dispute to the Court by service of a motion (or, if the judge prohibits discovery motions, 

in accordance with the assigned judge’s discovery procedures) within (28) days of the date when 

the issue was first raised with the opposing party. In the instant case, Defendant filed their Motion 

within days of first raising the issue to Plaintiff, and as such, the Motion must be denied. 

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II. DEFENDANT’S FAILURE TO ADEQUATELY MEET AND CONFER IN GOOD 

FAITH PRIOR TO THE FILING OF THE MOTION WARRANTS DENIAL OF SAME

Defendant’s efforts to confer with respect to the underlying merits of the Motion, and 

wholesale failure to adjudicate their resolution through mutual agreement, or alternatively to 

facilitate a narrowing of the issues between the parties, provide separate bases for the denial of 

same. Southern District of Florida Local Rule 7.1 provides, in relevant part, the following: 

(3) Pre-filing Conferences Required of Counsel. 

Prior to filing any motion in a civil case... counsel for the movant shall confer (orally or in

writing), or make reasonable effort to confer (orally or in writing), with all parties

or non-parties who may be affected by the relief sought in the motion in a good

faith effort to resolve by agreement the issues to be raised in the motion. Counsel

conferring with movant’s counsel shall cooperate and act in good faith in

attempting to resolve the dispute. At the end of the motion, and above the signature

block, counsel for the moving party shall certify either: (A) that counsel for the

movant has conferred with all parties or non-parties who may be affected by the

relief sought in the motion in a good faith effort to resolve the issues raised in the

motion and has been unable to do so; or (B) that counsel for the movant has made

reasonable efforts to confer with all parties or non-parties who may be affected by

the relief sought in the motion, which efforts shall be identified with specificity in

the statement (including the date, time, and manner of each effort), but has been

unable to do so...Failure to comply with the requirements of this Local Rule may be

cause for the Court to grant or deny the motion and impose on counsel an

appropriate sanction, which may include an order to pay the amount of the

reasonable expenses incurred because of the violation, including a reasonable

attorney’s fee... (emphasis added).

While Defendant here did in fact confer with Plaintiff’s counsel telephonically with respect 

to the their intent to file the instant Motion, in a subsequent email communication on September 

25, 2023, prior to the date of the filing of the Motion, Plaintiff articulated its position that the 

exclusion of Ganguly, sought in Defendant’s Motion, was obviated and/or precluded by the fact 

that both Ganguly and the nature of her knowledge with respect to the allegations of the underlying 

pleadings was disclosed to the Defendant as part of their Rule 26 disclosures, and a copy of the 

disclosures that were originally made on November 27, 2022 were attached to the e-mail. See 

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email of September 25, 2023 attached hereto as Exhibit “A” and Plaintiff’s Initial Disclosures

attached hereto as Exhibit “B”.

Defendant did not respond to this communication, nor does its Motion address the fact that 

Ganguly had previously been disclosed by the Plaintiff. Under these circumstances, it cannot be 

said that the Defendant acted in good faith to resolve, or at the very least, narrow the issues 

presented by the Motion prior to its filing; thus warranting denial of same and obligating the 

Defendant to pay the amount of the reasonable expenses and attorney’s fees incurred as a result of 

their failure to adequately and in good faith confer prior to the filing of the motion. See e.g. QBE 

Ins. Corp. v. Jorda Enterprises, Inc., No. 10-21107-CIV, 2012 WL 913248, at *2 (S.D. Fla. Mar. 

16, 2012) (Denying motion to exclude expert testimony for failure to comply with Local Rule 7.1).

III. ASSUMING ARGUENDO THAT DEFENDANT’S MOTION IS NOT 

PROCEDURALLY UNTIMELY, WHICH IT IS, SAID MOTION SHOULD 

NONETHELESS BE DISMISSED ON ITS MERITS

Fed. Civ. P. R. 26, provides in relevant part, the following:

a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise 

stipulated or ordered by the court, a party must, without awaiting a discovery 

request, provide to the other parties:

(i) the name and, if known, the address and telephone number of 

each individual likely to have discoverable information—along with 

the subjects of that information—that the disclosing party may use 

to support its claims or defenses, unless the use would be solely for 

impeachment;

(ii) a copy—or a description by category and location—of all 

documents, electronically stored information, and tangible things 

that the disclosing party has in its possession, custody, or control 

and may use to support its claims or defenses, unless the use would 

be solely for impeachment;

***

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(C) Time for Initial Disclosures—In General. A party must make the initial 

disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a 

different time is set by stipulation or court order, or unless a party objects during 

the conference that initial disclosures are not appropriate in this action and states 

the objection in the proposed discovery plan. In ruling on the objection, the court 

must determine what disclosures, if any, are to be made and must set the time for 

disclosure. 

Separate from, but related to the foregoing, Rule 37(c)(1) states that “[i]f a party fails to 

provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed 

to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless 

the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “The burden of 

establishing that a failure to disclose was substantially justified or harmless rests on the 

nondisclosing party.” Mitchell, 318 F. App’x at 824. The Court, pursuant to its Scheduling Order, 

fixed a deadline of December 15, 2022, for the parties to furnish their Rule 26 Disclosures in this 

matter, and Ganguly was in fact identified in Plaintiff’s disclosures on November 27, 2022.

In this case, no failure to disclose any witness occurred and no sanction of any kind, 

particularly the exclusion of a timely identified witness, is warranted. Plaintiff here did in fact 

identify Ganguly in its timely Rule 26 disclosures, as the “Commercial Finance Director for 

PayCargo Finance, L.P. She may have knowledge about how Bay Maritimes, Inc. used the funds 

advanced by PayCargo Finance, L.P., the returned payments, and PayCargo Finance, L.P.’s efforts 

to collect on those returned payments.” Despite having been noticed as an individual with 

knowledge germane to some of the areas of inquiry relevant to their defense of the suit, Defendant 

categorically failed to make any effort whatsoever to depose Ganguly to obtain the information 

that it seeks. Under these circumstances, the Court should not entertain the notion of sanctioning 

Plaintiff for Defendant’s inaction in carrying out its own obligations during discovery. 

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The Defendant’s Motion is built upon the flawed premise that the substance of the 

deposition testimony given by Philip Philliou (“Philliou”), demonstrates that he was unable to fully 

testify to certain of the areas of inquiry provided in its Rule 30(b)(6) Notice of Taking of 

Deposition, and that allowing Ganguly’s testimony to certain of these areas of inquiry, to wit, the 

Plaintiff’s accounting of its damages, would prejudice the Defendant at trial1. Contrary to the 

Defendant’s assertions otherwise, a reading of the deposition transcripts for both the initial and 

continued depositions of Plaintiff, through its corporate representative establish that, Plaintiff, 

through Philliou, did provide sufficient information through their testimony to address Defendant’s 

line of inquiry into the way that the Plaintiff’s damages were calculated, based upon his prior 

review of the information reasonably available to him.

It appears that Defendant takes issue with Ganguly being allowed to testify at trial based 

upon the belief, implied in its Motion, that because Philliou, testifying on Plaintiff’s behalf, does 

not possess the “most knowledge,” “exclusive knowledge” or “superior knowledge” with respect 

to how the information contained in Plaintiff’s accounting of the balances owed Plaintiff by 

Defendant’s principal, Nominal Defendant, Bay Maritimes, Inc. (the “Principal”) was compiled, 

prepared and/or calculated, that allowing Ganguly to testify at trial as to those issues would be 

prejudicial to it. However, Fed. R. Civ P. 30 does not expressly or impliedly require the corporation 

or entity to produce the “person most knowledgeable” for the corporate deposition. Further, the 

witness/designee need not have any personal knowledge, so the premise that the representative 

provided to testify on behalf of the corporation be the “most knowledgeable” is illogical and 

mistaken. See, e.g., PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894–95 (7th 

1 It is worth noting that Defendant’s Motion wholly fails to articulate with any specificity precisely how it would be 

prejudiced by Ganguly’s testimony at trial. Accordingly, Defendant’s claims of prejudice are, at best, categorical, 

generalized and/or theoretical. 

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Cir.2004) (rejecting argument that trial court should not have credited the testimony of a witness 

who lacked personal knowledge because the witness was a 30(b)(6) witness and “was free to testify 

to matters outside his personal knowledge as long as they were within the corporate rubric”). 

Assuming arguendo that Defendant’s Motion should not be denied as untimely, which 

Plaintiff contends that it is, the Motion must still be denied on its merits, because there is no 

requirement in the rules of procedure that for the purpose of the corporate representative 

deposition, that the individual designated as corporate representative must possess exclusive 

and/or superior knowledge as to said topic and/or subtopic. To the extent that the Defendant sought 

to obtain additional information through discovery with respect to how the information contained 

in Plaintiff’s accounting of the balances owed Plaintiff by Defendant’s principal, Nominal 

Defendant, Bay Maritimes, Inc. (the “Principal”) was compiled, prepared and/or calculated, 

Defendant should have developed such information by deposing Ganguly, elicited the information 

through discovery requests or compelling the information, if it felt there existed an actionable basis 

to do so.

CONCLUSION

Considering the procedural defects described in the foregoing, as well as the prior notice 

given to the Defendant in the Plaintiff’s timely Rule 26 disclosures, Defendant cannot now seek 

to reap the rewards of its own inaction in failing to timely depose Ganguly for the information that 

it sought by moving to exclude her testimony at trial. The Motion must be denied, and to the extent 

that the Defendant failed to adequately and in good faith confer with the Plaintiff prior to the filing 

of said Motion, Defendant should also be assessed the Plaintiff’s reasonable costs and attorney’s 

fees incurred in the defense of the instant Motion. 

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WHEREFORE, for the foregoing reasons, Plaintiff, PAYCARGO FINANCE, LP, 

respectfully prays this honorable Court: (a) Deny, Defendant, ASPEN AMERICAN INSURANCE 

COMPANY’s, Motion; (b) award Plaintiff reasonable costs and attorney’s fees incurred in the 

defense of the Motion; and (c) any such further relief as the Court deems just and proper.

Respectfully submitted,

XANDER LAW GROUP, P.A. 

1 NE 2 Ave, 200

Miami, Florida 33132

Attorney for Plaintiff

T: (305) 767-2001

 F: (855) 926-3370

jose@xanderlaw.com

service@xanderlaw.com

BY: /S/ Jose Teurbe-Tolon

Jose Teurbe-Tolon, Esq. 

Florida Bar No.: 87791

CERTIFICATE OF SERVICE

I hereby certify that on October 10, 2023, a copy of the foregoing was electronically

filed with the Clerk of the Court via the Court’s CM/ECF system, which will send a notice of

electronic filing to all counsel of record.

/s/ Jose Teurbe-Tolon

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