Hardy v. Union Pacific Railroad Company

Filing 88

ORDER. Defendants Motion To Strike Plaintiffs Untimely Responses To Defendants Motions In Limine 65 filed 10/25/2011, is GRANTED in part. The plaintiffs responses 59 , 61 to the defendants motions in limine 35 , 38 are STRICKEN because they were not filed timely. By Judge Robert E. Blackburn on 11/3/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-01880-REB–MJW
MARCUS E. HARDY,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, a corporation,
Defendant.

ORDER CONCERNING DEFENDANT’S MOTION TO STRIKE
Blackburn, J.
This matter is before me on Defendant’s Motion To Strike Plaintiff’s Untimely
Responses To Defendant’s Motions In Limine [#65]1 filed October 25, 2011. The
defendant filed five motions in limine on September 8, 2011 [#35, #36, #37, #38, #39].
The plaintiff filed responses [#57, #58, #59, #60, #61] on October 17 and 18, 2011. The
defendant moves to strike the responses because they are untimely.
D.C.COLO.LCivR 7.1.C., provides that a party responding to a motion “shall have
21 days after the date of service of the motion” in which to file a response. The plaintiff
did not seek an extension of time to file his responses, and no court order altered the
deadline. The plaintiff’s responses are untimely. The plaintiff’s responses are not the
only untimely filing. The defendant’s motion to exclude the testimony of Tyler Kress
Ph.D. [#39] is based on Fed. R. Evid. 702. The defendant’s motion to exclude the
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“[#65]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

testimony of Jeffrey Kleiner, M.D. and W. Carlton Reckling, M.D. [#37] is based FED. R.
CIV. P. 26(a)(2) and Fed. R. Evid. 702. The Trial Preparation Conference Order [#16]
filed October 7, 2010, provides that all motions raising issues under Fed.R.Evid. 702 as
codified and construed shall be filed by February 21, 2011, and marshaled thereafter
as prescribed by D.C.COLO.LCivR 7.1C.” Order [#16], p. 2. The defendants’ two
motions under Rule 702 are untimely.
Trial is set to begin on November 7, 2011. Given the imminent trial date,
efficiency dictates that I resolve any of the issues raised in the defendant’s motions in
limine that can be resolved before trial. To some extent, the dictates of efficiency trump
any argument that a motion or response should be stricken because it is untimely. In a
separate order, I have denied the defendant’s motions in limine docketed as [#35] and
[#38]. These two motions do not present valid bases for pretrial exclusion of evidence
and argument, and I reach that conclusion independent of the information presented in
the plaintiff’s responses [#59, #61]. The plaintiff’s responses [#59, #61] are stricken
because they were not filed timely.
In its motion in limine [#36] the defendant seeks the exclusion of three lay
witnesses who were not timely disclosed. In his response [#60], the plaintiff provides
evidence that two of the witnesses were timely disclosed, and concedes that a third
witness was not timely disclosed. Although the plaintiff’s response was not filed timely,
the response provides a ready basis to resolve the defendant’s motion. Here, efficiency
trumps timeliness. On that basis, I deny the defendant’s motion to strike the plaintiff’s
response [#60].
Finally, the defendant’s two motions [#37, #39] that raise issues under Fed. R.
Evid. 702, both were filed long after the expiration of the February 21, 2011, deadline for
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filing such motions. The plaintiff’s responses [#57, #58] also were filed after the
expiration of the applicable deadline. Given the tardy fling of the defendant’s two Rule
702 motions, the defendant has little basis to argue that the plaintiff’s tardy responses
should be stricken. If the responses should be stricken as untimely, then the two
motions also should be stricken as untimely. Here, efficiency dictates that the issues
raised in these motions be resolved, if possible, before the trial begins. Thus, as to the
plaintiff’s tardy responses [57, #58] to the defendant’s tardy Rule 702 motions [#37,
#39], the defendant’s motion to strike is denied.
THEREFORE, IT IS ORDERED as follows:
1. That the Defendant’s Motion To Strike Plaintiff’s Untimely Responses To
Defendant’s Motions In Limine [#65] filed October 25, 2011, is GRANTED in part;
2. That the plaintiff’s responses [#59, #61] to the defendant’s motions in limine
[#35, #38] are STRICKEN because they were not filed timely;
3. That otherwise, the Defendant’s Motion To Strike Plaintiff’s Untimely
Responses To Defendant’s Motions In Limine [#65] filed October 25, 2011, is
DENIED.
Dated November 3, 2011, at Denver, Colorado.
BY THE COURT:

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