[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 10-10623 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 6, 2011
D.C. Docket No. 1:09-cv-20160-JLK JOHN LEY
CLERK
ALAN KAUFMAN,
Individually,
d.b.a. Center For Asthma & Allergy Of Bronx And Westchester,
lllllllllllllllllllll Plaintiff - Appellant,
versus
SWIRE PACIFIC HOLDINGS, INC.,
a Delaware Corporation,
lllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 6, 2011)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant-Plaintiff Alan Kaufman (“Kaufman”) appeals: (1) the district
court’s summary judgment order, dated December 18, 2009, granting summary
judgment in favor of Appellee-Defendant Swire Pacific Holdings, Inc. (“Swire”)
on Counts I, II, and IV; (2) the district court’s order, dated October 9, 2009,
granting Swire’s motion to strike the testimony of Kaufman’s experts, Jose Perea
and Ralph Puig; and (3) the district court’s dismissal order, dated June 23, 2009,
dismissing with prejudice Kaufman’s claims in Counts III and V. With respect to
the dismissal order, Kaufman only appeals the Rule 12(b)(6) dismissal with
prejudice of Count V in its entirety.
Even without considering Kaufman’s experts, we conclude the district court
erred in granting summary judgment as to Counts I, II, and IV and dismissing
Count V in its entirety at the Rule 12(b)(6) stage. As to Count V, we conclude the
complaint stated a cause of action for actual damages. As to Counts I, II, and IV,
the record presents genuine issues of material fact unsuitable for resolution at the
summary judgment stage. Because factual issues for trial are presented even
without Kaufman’s experts, we need not decide whether the district court abused
its discretion in granting Swire’s motion to strike in order to decide the summary
judgment issues as to Counts I, II, and IV. Further, we note that the district court
ruled “that Mr. Jose Perea and Mr. Ralph Puig’s testimony be excluded unless
2
timely offered for rebuttal.” Given the reversal of the summary judgment order
and the district court’s allowing Kaufman’s experts to testify anyway (albeit
limited to rebuttal), we conclude both parties on remand should now be given
adequate opportunity to depose each other’s experts before trial and each party’s
experts should be allowed to testify at trial. We vacate the above district court
orders to the extent stated above and remand this case.
VACATED AND REMANDED FOR TRIAL.
3