Sandpiper Resorts Development Corporation, et al. v. Global Realty Investments, LLC et al

Filing 188

ORDER re 155 Motion to Exclude Damage Evidence or, In the Alternative MOTION to Extend Disclosure Deadlines and Motion for Extension of Time to Complete Discovery; 160 Motion to Strike. The motion at docket 155 is GRANTED in part and DENIED in part as follows: Discovery deadlines subsequent to the filing of the motion at docket 155 are extended for an additional 30 days. Plaintiffs' motion to strike at docket 160 is DENIED as moot. Signed by Judge John W Sedwick on 2/20/12.(JWS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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SANDPIPER RESORTS
DEVELOPMENT CORPORATION,
et al.,
Plaintiffs,

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vs.
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GLOBAL REALTY INVESTMENTS,
LLC, et al.,
Defendants.

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2:08-cv-01360 JWS
ORDER AND OPINION
[Re: Motions at Docket 155 and 160]

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I. MOTION PRESENTED
At docket 155, third-party defendant Mohr Hackett Pederson Blakely & Randolph,

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P.C. (“Mohr Hackett”) moves pursuant to Federal Rule of Civil Procedure 37(c)(1) to

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exclude all damage information disclosed by plaintiffs. Plaintiffs Sandpiper Resorts

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Development Corporation and Dourian Foster Investments, Inc. (“plaintiffs”) oppose the

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motion at docket 159. Mohr Hackett’s reply is at docket 167. Plaintiffs’ court-authorized

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sur-reply is at docket 184.

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At docket 160, plaintiffs move pursuant to Local Rules 7.2 and 7.3 to strike the

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motion to exclude. Mohr Hackett opposes the motion at docket 171. Plaintiffs’ reply is

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at docket 175.
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Oral argument was not requested as to either motion and would not assist the

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court.

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II. BACKGROUND

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Plaintiffs’ initial disclosures, made on November 5, 2010, stated that plaintiffs had

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“yet to determine the full extent of their damages, but [would] supplement this disclosure

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statement once damages have been calculated.”1 On December 22, 2011, plaintiffs

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filed a fifth supplemental Rule 26 disclosure statement in which they elaborated on the

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damages sought.

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Mohr Hackett was named as a third-party defendant in this lawsuit on July 19,

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2011. Service of process was made on August 2, 2011. Before Mohr-Hackett was

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joined, on March 26, 2010, plaintiffs filed a motion for entry of default judgment which

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contained a damages analysis similar to that provided in plaintiffs’ fifth supplemental

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disclosure.2

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III. DISCUSSION
A. Exclusion is Not An Appropriate Sanction Under the Circumstances
Federal Rule of Civil Procedure 26(a)(1)(A)(iii) requires a party to provide,

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“without awaiting a discovery request . . . a computation of each category of damages

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claimed by the disclosing party.”3 “If a party fails to provide information . . . as required

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by Rule 26(a) . . . the party is not allowed to use that information . . . at a trial, unless the

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failure was substantially justified or is harmless.”4 Less severe sanctions may also be

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imposed, “[i]n addition to or instead of” exclusion, on a non-disclosing party.5

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Doc. 155-1 at 13.

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See doc. 65 at 13–16.

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Fed. R. Civ. P. 26(a)(1)(A)(iii).
Fed. R. Civ. P. 37(c)(1).
Fed. R. Civ. P. 37(c)(1)(A)–(C).

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The thrust of Mohr Hackett’s motion is that plaintiffs’ original damages disclosure

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was insufficient and, therefore, plaintiffs’ supplemental damages disclosure should be

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excluded. Mohr Hackett cites no case law supporting imposition of such a drastic

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sanction under similar circumstances. Moreover, supplementing an initial damages

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disclosure made under Rule 26(a) is commonplace–an initial damages disclosure “is

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[often] merely a preliminary assessment and is subject to revision.”6 Finally, as plaintiffs

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point out, the scope of plaintiffs’ claimed damages has been available to Mohr Hackett

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since it became a third-party defendant to this action.7 Consequently, plaintiffs’ delay in

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supplementing their initial disclosure was harmless.

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B. Extension of Deadlines
Mohr Hackett argues that, in the alternative, the court should extend all deadlines

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by 120 days, so that it has sufficient opportunity to “explore the basis for [plaintiffs’]

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damage claims.”8 Plaintiffs do not oppose an extension of the current discovery

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deadlines, but maintain that a 30-day extension would be adequate. The court agrees,

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particularly in light of Mohr Hackett’s stipulation to the current deadlines.9

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C. Motion at Docket 160

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Because the court declines to exclude plaintiffs’ damages information, the motion
at docket 160 is moot.

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IV. CONCLUSION
For the reasons above, Mohr Hackett’s motion at docket 155 is GRANTED in

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part and DENIED in part as follows: Discovery deadlines subsequent to the filing of the

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motion at docket 155 are extended for an additional 30 days.

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City and County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 222 (N.D. Cal.
2003) (citing Fed. R. Civ. P. 26(e)).

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See doc. 65 at 13–16.
Doc. 155 at 7.
See doc. 135.

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Plaintiffs’ motion to strike at docket 160 is DENIED as moot.

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DATED this 20th day of February 2012.

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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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