Home Design Services, Inc. v. Collard Properties, LLC, et al.,

Filing 113

ORDER granting 107 Defendants Rasmussen Construction Services, LLC and Kendall Jay Rasmussen a/k/a Jay Rasmussens Motion for Leave of Court to Allow Cross-Endorsement of Expert, by Magistrate Judge Boyd N. Boland on 03/29/2012.(wjcsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-00011-MSK-BNB
HOME DESIGN SERVICES, INC.,
Plaintiff,
v.
COLLARD PROPERTIES, LLC,
RASMUSSEN CONSTRUCTION SERVICES, LLC, and
KENDALL JAY RASMUSSEN a/k/a JAY RASMUSSEN,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Defendants Rasmussen Construction Services, LLC and
Kendall Jay Rasmussen a/k/a Jay Rasmussen’s Motion for Leave of Court to Allow CrossEndorsement of Expert [Doc. # 107, filed 3/9/2012] (the “Motion”). The Motion seeks leave
for the Rasmussen defendants to cross-endorse Robert Greenstreet, an expert designated by
defendant Collard Properties, and to make the cross-endorsement out of time. The Motion is
GRANTED.
Although the Motion reports that it is anticipated that the plaintiff will object, no
response was received. I assume, as a result, that the plaintiff accedes to the requested relief.
In any event, the Motion should be granted on the merits. Rule 37(c)(1), Fed. R. Civ. P.,
controls the issue and provides:
If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing , or at a trial, unless the failure was substantially justified

or is harmless.
In determining whether the failure to disclose is justified or harmless, a court may consider (1)
the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the
party to cure the prejudice; (3) the extent to which such testimony would disrupt the trial; and (4)
the moving party’s bad faith or willfulness. Asher v. Colgate-Palmolive Co., 2011 WL 6934104
at *3 (D. Colo. Dec. 20, 2011).
In this case, there is no surprise or prejudice. I am informed that Dr. Greenstreet was
timely disclosed by Collard Properties. The cross-designation “is not a new endorsement and
does not interject any new evidence into the litigation.” Motion [Doc. # 107] at p. 2. No
remedial action is necessary to cure any prejudice or surprise, because there is none. The
testimony will not disrupt the trial, and there is no indication of bad faith or willfulness on the
part of the Rasmussen defendants.
IT IS ORDERED that the Motion [Doc. # 107] is GRANTED.
Dated March 29, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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