Baker v. Kronenberg, et al

Filing 40

ORDER CONDITIONALLY EXTENDING DEADLINE FOR INITIAL DISCLOSURES, Order by Hon. William Alsup denying 30 Motion to Strike.(whalc1, COURT STAFF) (Filed on 11/3/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DWAINE BAKER,

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For the Northern District of California

United States District Court

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No. C 11-02529 WHA

Plaintiff,
v.

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WEST CONTRA COSTA
SCHOOL DISTRICT,

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ORDER CONDITIONALLY
EXTENDING DEADLINE
FOR INITIAL DISCLOSURES

Defendant.
/

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INTRODUCTION

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In this action for recovery of allegedly unpaid overtime compensation, defendant moves to

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strike the pleadings or preclude evidence based on plaintiff’s failure to make initial disclosures.

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This order extends the deadline for initial disclosures on the condition that plaintiff’s counsel

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pays defendant $900.00 to cover the attorney’s fees defendant reasonably incurred in bringing the

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instant motion.

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STATEMENT
Plaintiff filed this action in December 2010 in the United States District Court for the

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Eastern District of California. It was transferred to this district in May 2011 and was reassigned

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to the undersigned judge in August 2011 (Dkt. Nos. 1, 15, 23).

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Plaintiff’s second amended complaint, which was filed in May 2011 shortly after the
transfer, is operative. It alleged that plaintiff was underpaid for overtime hours he worked

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between August 2006 and June 2009. A three-page chart listing his hours and wages for the

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relevant pay periods was attached to the pleading as Exhibit B (Dkt. No. 17).

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A case management conference was held on September 8, 2011 (Dkt. No. 29). Neither

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plaintiff himself nor his attorney, Grayling M. Williams, attended. Attorney Williams explains

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that he arrived at the courtroom over an hour late, and that he “would not have appeared at all”

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but for a reminder call from opposing counsel that morning. Attorney Williams accepts full

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responsibility for his failure to timely appear (Williams Decl. ¶ 8).

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At the September 8 case management conference, the deadline for completing initial

counsel advised Attorney Williams in writing that plaintiff must serve his initial disclosures by

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For the Northern District of California

disclosures under FRCP 26 was extended to September 16, 2011. The following day, defense

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United States District Court

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that date (Donohoe Decl. ¶ 8). The letter stated in relevant part: “Judge Alsup ordered plaintiff

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to comply with FRCP 26 and serve his Initial Disclosures by September 16, 2011. We are to

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advise you that his failure to do so will result in a dismissal of the action.” (Dkt. No. 34).

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A case management scheduling order was issued on September 12. Its first paragraph

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stated: “All initial disclosures under FRCP 26 must be completed by SEPTEMBER 16, 2011, on

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pain of preclusion under FRCP 37(c), including full and faithful compliance with

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FRCP 26(a)(1)(A)(iii).” (Dkt. No. 28).

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Defendant filed the instant motion on September 23, 2011, asserting that plaintiff still had

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not made any initial disclosure. In light of this supposed failure, plaintiff requests an order

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dismissing the action or, alternatively, prohibiting plaintiff from presenting any evidence at all

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(Br. 3–4). Plaintiff’s counsel largely acknowledges his failure to serve Rule 26 initial disclosures

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but claims that this failure was “inadvertent.” Attorney Williams “humbly accept[s] any personal

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sanction the Court chooses to impose” but “urge[s] this court to refrain from striking the

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pleadings or otherwise limiting plaintiff’s ability to present evidence in this matter”

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(Williams Decl. ¶ 9). This order follows full briefing and a hearing attended by counsel for

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both sides.

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ANALYSIS

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FRCP 26 requires litigants to disclose witnesses, documents, and damages computations

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at the outset of a federal action. Unless ordered otherwise, the disclosures must be made within

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fourteen days after the parties’ initial Rule 26(f) planning conference, which itself must take place

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at least 21 days before the first scheduling conference. FRCP 26(a)(1)(c); FRCP 26(f)(1). Thus,

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at a minimum, initial disclosures must be made one week before the first scheduling conference.

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The initial case management conference following transfer to this district was held on

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September 8, 2011. Pursuant to the federal rules, initial disclosures were due on September 1 —

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a full nine months after plaintiff commenced this action. The case management scheduling order
extended the deadline to September 16. Despite having ample time and multiple warnings,

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For the Northern District of California

United States District Court

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plaintiff still failed to comply.

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“Rule 37 gives teeth to Rule 26’s disclosure requirements by forbidding the use at trial of

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any information that is not properly disclosed.” Rule 37(c)(1) “is a self-executing, automatic

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sanction designed to provide a strong inducement for disclosure.” Goodman v. Staples The Office

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Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (internal quotations omitted). The only

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exceptions to this automatic exclusion sanction apply if the failure to disclose was substantially

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justified or harmless. FRCP 37(c)(1).

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Attorney Williams has not shown that his failure to make timely initial disclosures was

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substantially justified or harmless. As an initial matter, his argument is based on non-binding

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case law from other circuits. More importantly, his substantive excuse does not establish that any

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exception to Rule 37 preclusion applies. Attorney Williams states that “[a]ny non-disclosure,

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aside from the timing of receipt of the same by plaintiff’s counsel, was due to the inadvertence of

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plaintiff’s counsel, for whom the instant case is his first federal matter” (Opp. 3–4). Inadvertence

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and inexperience do not substantially justify failure to comply with the rules.

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Nonetheless, in light of Attorney Williams’ lack of experience with federal procedure, he

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will be allowed one more chance to make proper initial disclosures. The deadline for both sides

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to make initial disclosures is hereby EXTENDED to NOVEMBER 15, 2011, on the condition that

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Attorney Williams pays defendant $900.00 to cover the attorney’s fees defendant reasonably
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incurred in bringing the instant motion. In the Court’s view, this is a reasonable estimate of the

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minimum amount of attorney’s fees incurred by defendant as a result of Attorney Williams’

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failure to serve initial disclosures. The payment must be made by Attorney Williams himself, not

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his client.

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No more extensions will be granted. Attorney Williams is reminded of his professional

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duty to comply with all rules and orders. This order notes that if Attorney Williams had attended

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the September 8 case management conference, he would have understood the requirements of

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Rules 26 and 37 regarding initial disclosures.

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Because the deadline for initial disclosures has been extended, defendant’s motion to
strike the pleadings or preclude evidence is DENIED. This is without prejudice to renewal of the

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For the Northern District of California

United States District Court

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motion after the new deadline passes, if warranted. In any event, plaintiff will not be precluded

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from introducing or relying upon items of proof disclosed by defendant.

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CONCLUSION
The deadline for both sides to make initial disclosures is hereby EXTENDED to

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NOVEMBER 15, 2011, on the condition that Attorney Williams pays defendant $900.00 to cover

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the attorney’s fees reasonably incurred in bringing the instant motion. Defendant’s motion to

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strike the pleadings or preclude evidence is DENIED without prejudice to renewal after

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November 15.

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IT IS SO ORDERED.

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Dated: November 3, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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