Garbinski v. Nationwide Mutual Ins Co et al
ORDER granting 102 Motion to Strike ; granting 102 Motion for Sanctions. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 7/24/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GROGERY J. GARBINKSI,
: CIVIL ACTION NO. 3:10cv1191(VLB)
: JULY 24, 2012
NATIONWIDE MUTUAL INSURANCE;
COMPANY, ET AL.
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION TO
STRIKE AND FOR SANCTIONS [DKT. #102]
Plaintiff Gregory Garbinski (“Garbinski” or “Plaintiff”) brings this action
against Defendants Nationwide Mutual Insurance Company, et al. (collectively
“Nationwide” or “Defendants”), alleging breach of contract of an Independent
Contractors Agent’s Agreement (the “Agent Agreement”) (Count 1); violation of
Connecticut’s Franchise Act (the “Franchise Act” or “CFA”), Conn. Gen. Stat. § 42133 (e)-(g) (Count 3); violation of the Connecticut Unfair Trade Practices Act
(“CUTPA”), Conn. Gen. Stat. § 42-110b (Count 4); and interference with business
expectancy (Count 5). Before the Court is Defendants’ motion to strike Plaintiff’s
Exhibits 8 through 46 of Garbinski’s Affidavit [Dkt. # 93, Ex. 8-46] supporting
Plaintiff’s opposition to summary judgment, and for sanctions against Plaintiff in the
form of excluding those documents from evidence in this case. Nationwide has also
requested the Court to order Plaintiff to pay Nationwide’s fees incurred in bringing
the Motion to Strike. For the reasons stated hereafter, Defendants’ motion to strike
and for sanctions is granted.
In September 2010, this Court adopted a scheduling order that set a
discovery deadline of July 2011. [Dkt. # 29 Scheduling Order]. On July 29, 2011, an
Amended Rule 26(f) Planning Meeting Report was adopted, and the discovery
deadline was extended to November 30, 2011. On September 28, Plaintiff moved for
an extension until October 7 for the Expert Disclosure deadline, and this motion was
granted by the Court. [Dkt. # 47-48]. On October 6, Plaintiff again moved for an
extension of time for Expert Disclosure until October 14, which the Court granted.
[Dkt. # 49-50]. On October 14, Plaintiff moved for extensions of the expert disclosure
deadline until October 28 and the overall discovery deadline until December 31.
[Dkt. # 51]. The Court again granted both extensions. [Dkt. # 52]. Plaintiff moved for
another Expert Disclosure extension on October 28, and the Court granted an
extension until November 9. [Dkt. # 54-55]. On November 9, Plaintiff moved for
another extension of time for expert disclosure until December 9, and for overall
discovery until January 31, 2012. [Dkt. # 56]. Plaintiff on November 10 amended
their expert disclosure extension request to be January 20, 2012. [Dkt. # 57]. The
motions for extension of time cited a series of excuses, some less credible than
others, but none cited the Plaintiff’s sequestration or concealment of documents.
Nor did the Plaintiff seek Court intervention to secure documents sequestered or
concealed by anyone, despite the Court’s having set and extended the discovery
deadline repeatedly to accommodate the Plaintiff. The Court granted the last
request, warning that no further extensions would be granted. [Dkt. # 59]. On
January 31, 2012, the final discovery deadline as set by the Court, Plaintiff filed yet
another motion for Extension of Time until February 28, 2012 in which he did not
assert that documents had been sequestered or concealed; nor did he seek judicial
redress for such conduct. . [Dkt. # 70]. The Court denied this motion, noting that
under Federal Rule of Civil Procedure 16(b), the Discovery deadline may only be
extended for good cause and that Plaintiff had failed to demonstrate good cause
bases in part on the numerous motions for extensions of time and the numerous
extensions previously granted. [Dkt. # 71].
About three months after the final discovery deadline, Garbinski submitted
over 2,500 pages of documents with his Response to Nationwide’s Motion for
Summary Judgment, some of which were responsive to Nationwide’s earlier
discovery request. [Dkt. # 93, Ex. 1-58].
Federal Rule of Civil Procedure 26(e) states that a party who has responded to
discovery requests “must supplement or correct its disclosure or response . . . if the
party learns that in some material respect the disclosure or response is incomplete
or incorrect.” Federal Rule of Civil Procedure 37(c)(1) provides that “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.” Additionally, the court, on motion and after giving an opportunity to be
heard, “may order payment of the reasonable expenses, including attorney's fees,
caused by the failure.” Federal Rule of Civil Procedure 37(c)(1)(A). The purpose of
Rule 37(c)(1) is to “prevent the practice of ‘sandbagging’ an opposing party with
new evidence.” Ebewo v. Martinez, 309 F. Supp.2d 600, 607 (S.D.N.Y. 2004).
Although “a bad-faith violation of Rule 26 is not required in order to exclude
evidence pursuant to Rule 37, it can be taken into account as part of the party’s
explanation for its failure to comply.” Design Strategy, Inc. v. Davis, 469 F.3d 284,
296 (2d Cir. 2006).
Nationwide has moved to strike Exhibits 8-46, a total of over 2,500 pages,
which Garbinski submitted in support of his memorandum in opposition to
Nationwide’s Motion for Summary Judgment. These documents were responsive to
Nationwide’s earlier discovery request and were never produced by Garbinski
during the extended discovery period. [Dkt. # 93, Ex. 1-58]. Nationwide argues that
the delay in the production of these documents was not substantially justified as
required by Rule 37(c)(1).
Garbinski alleges that he does have a substantial justification for the delay.
Garbinski argues that he was unable to produce the documents contained in
Exhibits 8-46 during the discovery period because said documents, which he
originally stored at a property owned by Garbinski and his brother in Bedford,
Pennsylvania, had been hidden by Garbinski’s brother at an “undisclosed location
and his brother refused to disclose said location to [Garbinski].” [Dkt. # 107, Mem. in
Support of Pl.’s Objection to Defs.’ Motion to Strike and for Sanctions at 2].
According to Garbinski, Garbinski’s brother
thereafter attempted to convince the Plaintiff to transfer his interest in the
property to a third party in exchange for information of the location of the
Exhibits and other business documents so that Plaintiff’s brother could avoid
the disclosure of said asset to the bankruptcy trustee who had been
appointed in the bankruptcy proceeding filed by Plaintiff’s brother.
[Id.]. Garbinski refused to participate in such a transaction, and Garbinski’s brother
refused to disclose the location of the Exhibits. [Id.]. Garbinski states that his father
then located the documents at a “golf club property” in Pennsylvania in late
February 2012, and that Garbinski retrieved the documents and delivered them to
his counsel in early March 2012. [Id. at 3-4].
These alleged facts do not constitute substantial justification for delay. First,
there is no evidence in the record that Garbinski sought to use any of the legal
means he had available pursuant to the Federal Rules of Civil Procedure, such as
the Court’s subpoena power, to compel production of these documents from his
brother. Second, Garbinski has offered no admissible evidence to support his
story. He did not submit an affidavit or declaration setting out these facts under
penalty of perjury. Lastly, Garbinski failed to disclose to Nationwide the existence
of these 2,500 pages of documents during the extended discovery period. In the
words of Defendants, “[c]ommon sense would suggest that if Garbinski were not
attempting to intentionally sandbag Nationwide, he would have disclosed the
existence of these 2,500 pages of documents to Nationwide – even if he couldn’t
produce them – back in May 2011 when Nationwide requested all documents that
Garbinski claimed supported his franchise claim.” [Id. at 3]. Instead, Garbinski did
not mention the documents at all and did not disclose their existence to Nationwide
until his Response to Nationwide’s Motion for Summary Judgment.1 [Defs.’ Reply in
Support of Motion to Strike and for Sanctions at 3]. Nationwide correctly describes
Nationwide had asked Garbinski in an interrogatory in May 2011 to “[i]dentify the
factual and legal basis for each way you contend Nationwide violated the
Connecticut Franchise Act.” [Dkt. # 103-2 at 7]. Garbinski responded by referring to
his Complaint and the requirements of the Connecticut Franchise Act: “ANSWER:
See allegations of the Complaint as to factual basis of the violation of the Conn.
Franchise Act and see the requirements of the Conn. Franchise Act for the legal
basis of said violation.” [Id.].
this as “classic sandbagging,” [Id.], of which the very purpose of Rule 37(c)(1) is to
Nationwide relies upon Haas v. Delaware & Hudson Ry. Co., 282 F. App'x 84,
85 (2d Cir. 2008) in support of its Motion to Strike and for Sanctions, and this Court
agrees that Haas is particularly on point in the present case. In Haas, the defendant
served interrogatories upon the plaintiff requesting that plaintiff identify witnesses
he intended to call to testify as to defendant’s notice of an alleged negligent
condition, any person who had knowledge of the negligent condition, and other
evidence pertaining to notice. Id. at 85. Plaintiff responded by referring to his
complaint and did not mention any person who was a potential witness or who had
knowledge of the negligent condition. Id. Later, in opposition to defendant’s motion
for summary judgment, plaintiff attached an affidavit [the Sheehan Affidavit] by
someone with knowledge of the negligent condition. Id.
The Haas plaintiff argued that his “failure to appreciate [the Sheehan
Affidavit’s] significance until [defendant] moved for summary judgment was ‘not
intentional.” Id. Rather, he argued that he obtained the Sheehan Affidavit “as part of
‘a final attempt to uncover any pre-accident information regarding the [alleged
negligent condition] given the lack of evidence of prior problems . . . provided in
discovery.’” Id. The plaintiff also noted that he had also mentioned Sheehan during
The Second Circuit in Haas found that the district court did not abuse its
discretion in excluding the Sheehan Affidavit. Id. at 87. Plaintiff’s counsel offered
“no adequate explanation for this untimely disclosure,” and even though the delay
was apparently caused by counsel’s oversight and neglect rather than bad faith,
“bad faith is not required.” Id. at 86. Furthermore, plaintiff’s references to Sheehan
in the deposition “neither suggest[ed] in any way that Sheehan ha[d] information
relevant to Haas's accident nor serve[ed] to amend his responses.” Id. at 85. Thus,
there was no substantial justification for the delay. Id. at 86.
In the present case, Garbinski attempts to distinguish Haas by a mere
assertion that while there was no substantial justification shown in Haas,
substantial justification has been shown here. [Dkt. # 107 at 6]. But, as stated above,
Garbinski has offered nothing more than a convoluted excuse and no admissible
evidence to support that excuse. While the delay in Haas was apparently due solely
to counsel’s neglect and that was enough to support a finding of no substantial
justification, here the failure of Garbinski in the present case to even mention the
existence of the 2,500 pages of documents – when he obviously knew about them
and had stored them at his property – at the very least suggests that Garbinski
acted in bad faith by delaying their disclosure.
Also, as in Haas, this Court finds that Garbinski’s claim that Nationwide itself
committed discovery violations “lacks support and comes only at this late
juncture.” Haas, 282 F. App'x at 86. That Nationwide was allegedly familiar with the
documents produced by Garbinski along with his objection to summary judgment
“does not diminish the prejudice caused by waiting until after the close of discovery
and, moreover, after [Nationwide] had prepared and filed its motion for summary
It appears that Garbinski requested documents from Nationwide in Request
No. 14 of his First Request for Production. [Dkt. # 107-1]. However, Nationwide
properly objected to this request. [Id.]. If Garbinski believed Nationwide should have
produced these documents, “his recourse was to move the Court to compel
Nationwide to produce. But instead he sat idly by for almost two years and never
mentioned their existence, and then dropped them in Nationwide’s lap after he had
been deposed, after the close of discovery, and after Nationwide had filed its
dispositive motion.” [Dkt. # 108 at 4] (emphasis in original). Furthermore, Garbinski
only requested documents after 2003, while many of the 39 exhibits that Nationwide
has moved to strike were provided to agents before 2003.
Most importantly, allowing these documents now would be enormously
prejudicial to Nationwide. The discovery period has long been closed, even
considering the multiple generous extensions granted by the Court, Nationwide has
had no opportunity to meaningfully examine these documents prior to its Motion for
Summary Judgment. Garbinski appears to assert that because Nationwide obtained
disclosure of the exhibits from Garbinski prior to filing its Reply to the Plaintiff’s
Objection to Motion for Summary Judgment and because Garbinski has no
objection to reopening deposition of the Plaintiff and inquire about the exhibits in
preparation for trial, the level of prejudice is somehow acceptable. However, the
prejudice to Nationwide is manifest and allowing Garbinksi’s deposition to be
reopened would only cause further delay and waste additional resources.
The conduct by Garbinski, where he has submitted 2,500 pages of documents
that were directly responsive to a previous interrogatory served by Nationwide,
where those documents were attached to a response to a summary judgment
motion, where those documents were submitted three months after the close of
discovery, and where he offers only a far-fetched and “convoluted excuse” patently
does not constitute substantial justification for delay. Therefore, this Court grants
Nationwide’s Motion to Strike and for Sanctions [Dkt. # 102] as to the manually filed
Exhibits 8 through 46 of Garbinski’s Affidavit [Dkt. # 93, Ex. 8-46]. Those Exhibits
are excluded from being admitted as evidence at any trial, hearing, or motion in this
case. Additionally, this Court orders Garbinski and/or his counsel to pay
Nationwide’s fees incurred in bringing its Motion to Strike and for Sanctions.
Nationwide is directed to submit an affidavit as well as detailed billing statement
that sets forth actual compensation and expenses incurred in bringing this motion
to strike and for sanctions.
Based upon the above reasoning, Defendants’ [Dkt. #102] motion to strike and
for sanctions is GRANTED.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut this 24th day of July 2012
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