Commonwealth Property Advocates, LLC v. U.S. Bank National Association et al

Filing 87

ORDER granting 83 Bank Defendants' Motion to Strike Plaintiff's Expert Witness. Stephanie Reynolds is stricken. 81 Final Pretrial Order is amended consistent with this Order. Each party shall pay its own attorney fees and costs for this motion. By Magistrate Judge Michael J. Watanabe on 7/20/2011.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01415-WJM-MJW
COMMONWEALTH PROPERTY ADVOCATES, LLC,
Plaintiff(s),
v.
U. S. BANK NATIONAL ASSOCIATION, as trustee, successor-in-interest to Bank of
America, National Association as trustee, successor by merger to LaSalle Bank
National Association, as trustee for Morgan Stanley Mortgage Loan Trust 2007-7AX,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and
NEW CENTURY MORTGAGE CORPORATION,
Defendant(s).

ORDER REGARDING
BANK DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S EXPERT WITNESS
(DOCKET NO. 83)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Bank Defendants’ Motion to Strike Plaintiff’s
Expert Witness (docket no. 83). The court has reviewed the subject motion (docket no.
83), the response (docket no. 85), and the reply (docket no. 86). In addition, the court
has taken judicial notice of the court file and has considered applicable Federal Rules of
Civil Procedure and case law. The court now being fully informed makes the following
findings of fact, conclusions of law, and Order.
In the subject motion (docket no. 83), the Bank Defendants seek an Order from
this court striking Plaintiff’s expert witness, Stephanie Reynolds.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That the decision whether to strike an expert witness is vested
within the sound discretion of the trial court. See Munoz v. St.
Mary-Corwin Hosp., 221 F.3d 1160, 1168 (10th Cir. 2000). The
court has broad discretion to enforce its scheduling orders. See
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990).
Deadlines established by the court in the Scheduling Order are not
merely aspirational. See Young v. City of Palm Bay, 358 F.3d 859,
864 (11th Cir. 2004). Accordingly, the failure of a party to disclose
an expert pursuant to a deadline established by the court is
grounds for exclusion of the expert witness under Fed. R. Civ. P.
37(c)(1) and Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 895
(10th Cir. 2006). Further, Fed. R. Civ. P. 16(f) specifically
authorizes the court to sanction a party for failing to comply with its
scheduling order by excluding evidence;

5.

That expert witness, Stephanie Reynolds, was identified by the
Plaintiff for the first time in the Proposed Final Pretrial Order filed

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with court on June 3, 2011 (docket no. 76);
6.

That Plaintiff did not make a timely disclosure of Ms. Reynolds per
the Scheduling Order entered in this case nor did the Plaintiff make
an adequate disclosure of Ms. Reynolds pursuant to Rule 26(a)(2);

7.

That in Plaintiff’s Response (docket no. 85), Plaintiff has not
demonstrated any basis why Plaintiff could not have met the
deadline set for disclosing expert witnesses as outlined in the
Scheduling Order and has further not demonstrated any substantial
justification for failing to do so;

8.

That a Final Pretrial Order was entered in this case on June 7,
2011. See docket no. 81. Moreover, discovery has been
completed, and dispositive motions (docket nos. 29, 43, and 60)
have been filed and are fully briefed and ripe for ruling before
Judge Martinez;

9.

That Defendants would suffer prejudice if this court were to allow
this untimely endorsement of Ms. Reynolds.
ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Bank Defendants’ Motion to Strike Plaintiff’s Expert Witness
(docket no. 83) is GRANTED;

2.

That Plaintiff’s expert witness, Stephanie Reynolds, is STRICKEN,

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and she may not testify at the trial on the merits;
3.

That the Final Pretrial Order (docket no. 81) is amended consistent
with this Order; and

4.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 20th day of July 2011.

BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE