Nelson et al v. United States of America

Filing 77

ORDER. Motion to Strike Declaration of James Anderson and to Preclude His Testimony as Evidence in this case 74 is GRANTED. The Declaration of James Anderson attached as Exhibit F to Defendant's Motion for Summary Judgment is STRICKEN. ORDE RED that the United States request in its Response in Opposition to Plaintiffs' Motion to Strike to substitute Mr. Anderson's Declaration with the Declaration of Frederick L. Williams is GRANTED. Mr. Williams' Declaration (ECF No. 75 -2) shall be substituted for Mr. Andersons Declaration. ORDERED that on or before Monday, September 9, 2013, Plaintiffs may file a supplemental response to Defendant's Motion for Summary Judgment that addresses the Declaration of Mr. Williams and its effect on the motion by Judge Wiley Y. Daniel on 08/29/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-02953-WYD-MEH
JAMES NELSON and
ELIZABETH VARNEY,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER

THIS MATTER is before the Court on Plaintiffs’ Motion to Strike Declaration of
James Anderson and to Preclude His Testimony as Evidence in this case filed April 30,
3013 (ECF No. 74). A response was filed on May 20, 2013, and a reply was filed on
June 6, 2013. For the reasons discussed below, Plaintiff’s Motion to Strike is granted.
Fed. R. Civ. P. 37(c) states, “If a party fails to provide information or identify a
witness required 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.” Here, the United States does not
dispute that it failed to disclose Mr. Anderson in its Rule 26 disclosures or during
discovery in this case.
I also find that the United States has not shown that the failure to identify
Mr. Anderson in discovery is substantially justified or harmless. Indeed, I find that

Plaintiffs would be prejudiced if Mr. Anderson’s Declaration was considered in
connection with Defendant’s summary judgment motion. Since they did not know the
United States was going to rely on his testimony and were surprised thereby, they had
no ability to depose Mr. Anderson or to respond intelligently to his Declaration in
connection with the summary judgment briefing. Moreover, the summary judgment
motion is fully briefed and trial is set in December. Thus, I find that allowing the
testimony at this time would disrupt both the resolution of the summary judgment motion
and, potentially, the trial. See Woodworker’s Supply Inc. v. Principal Mutual Life
Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999).
Accordingly, I strike the Declaration of James A. Anderson that is attached to
Defendant’s Motion for Summary Judgment as Exhibit F (ECF No. 58-6), and will not
consider it. I will, however, grant the United States’ request to substitute Mr. Anderson’s
Declaration with the Declaration of Frederick L. Williams attached as Exhibit B to
Defendant’s Response in Opposition to Plaintiffs’ Motion to Strike the Response (ECF
No. 75-2.) Plaintiffs had the opportunity to depose Mr. Williams, and I find that this
Declaration would assist in resolution of Defendant’s Motion for Summary Judgment.
Thus, references in Defendant’s Motion for Summary Judgment shall now be
construed to refer to Mr. Williams’ Declaration. To avoid any prejudice to Plaintiffs
caused by the substitution of Mr. Williams’ Declaration, Plaintiffs may file a
supplemental response to Defendant’s Motion for Summary Judgment by Monday,
September 9, 2013, that addresses the Declaration and its effect on Defendant’s
motion. No reply will be allowed.
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Based on the foregoing, it is
ORDERED that Plaintiffs’ Motion to Strike Declaration of James Anderson and to
Preclude His Testimony as Evidence in this case filed April 30, 3013 (ECF No. 74) is
GRANTED. The Declaration of James Anderson attached as Exhibit F to Defendant’s
Motion for Summary Judgment is STRICKEN. It is
FURTHER ORDERED that the United States’ request in its Response in
Opposition to Plaintiffs’ Motion to Strike to substitute Mr. Anderson’s Declaration with
the Declaration of Frederick L. Williams is GRANTED. Mr. Williams’ Declaration (ECF
No. 75-2) shall be substituted for Mr. Anderson’s Declaration. Finally, it is
ORDERED that on or before Monday, September 9, 2013, Plaintiffs may file a
supplemental response to Defendant’s Motion for Summary Judgment that addresses
the Declaration of Mr. Williams and its effect on the motion.
Dated: August 29, 2013
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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