Graley v. TZ Insurance Solutions, LLC

Filing 59

ORDER denying 56 Motion to Reconsider this Court's Denial of Defendant's Motion to Strike, Or In The Alternative, For Leave To Take The Depositions of Ms. Stasheen and Ms. Teeter. Signed by Magistrate Judge Carol Mirando on 9/2/2016. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANNETTE GRALEY, an individual
Plaintiff,
v.

Case No: 2:14-cv-636-FtM-CM

TZ INSURANCE
LLC,

SOLUTIONS,

Defendant.
ORDER
This matter comes before the Court upon review of Defendant TZ Insurance
Solutions LLC’s Motion to Reconsider this Court’s Denial of Defendant’s Motion to
Strike, Or In The Alternative, For Leave To Take The Depositions of Ms. Stasheen
and Ms. Teeter (“Motion to Reconsider,” Doc. 56), filed on June 9, 2016. On June 17,
2016, Plaintiff filed a response in opposition.

The motion, therefore, is ripe for

review.
I.

Background

Plaintiff initiated this lawsuit on October 19, 2014. Docs. 1. Plaintiff, who
was formerly employed by Defendant as head of human resources, brought this
lawsuit against Defendant based on allegations that Defendant violated the
Americans with Disabilities Act, as amended (“ADA”), the Florida Civil Rights Act of
1992 (“FCRA”), and the Family and Medical Leave Act (“FMLA”).

Doc. 19.

Specifically, Plaintiff asserts claims of discrimination under the ADA and FCRA

(Counts I and II), retaliation under the ADA, FCRA, and FMLA (Counts III, IV, and
VI), and interference under the FMLA (Count V). Id.
On March 13, 2015, the Court entered a Case Management and Scheduling
Order in which the discovery deadline was set for January 5, 2016. Doc. 23 at 1.
The Court subsequently extended the discovery deadline to March 4, 2016. Doc. 31
at 1. On April 15, 2016, Defendant filed its Motion for Summary Judgment and
Memorandum of Law in Support. Doc. 37. On April 29, 2016, Plaintiff filed her
Response to Defendant’s Motion for Summary Judgment and Incorporated
Memorandum of Law. Doc. 41.
In Plaintiff’s response to the motion for summary judgment, she attached
declarations by two of Defendant’s former employees, Lorene Stasheen (“Stasheen”)
and Barbara Teeter (“Teeter”). Docs. 41-1, 41-3. On May 6, 2016, Defendant filed
its Motion to Strike & Memorandum In Support (“Motion to Strike,” Doc. 43), in which
it moved to strike these declarations, claiming “litigation by surprise” due to
Plaintiff’s failure to include the names of Stasheen and Teeter in Plaintiff’s initial
Rule 26 disclosures, failing to supplement her Rule 26 disclosures, and failing to
disclose the full extent of the declarants’ knowledge in response to various discovery
requests. See generally Doc. 43. On May 26, 2016, the Court held a telephonic
status conference in which the Court discussed the Defendant’s Motion to Strike.
Finding that there was sufficient disclosure, the Court denied the motion and
subsequently entered a written Order memorializing that ruling.

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Doc. 53.

Defendant now asks the Court to reconsider its Order dated May 26, 2016 denying
Defendant’s Motion to Strike. Doc. 56.
II.

Standard

“Reconsideration of a court's previous order is an extraordinary remedy and,
thus, is a power which should be used sparingly.” Carter v. Premier Rest. Mgmt.,
No. 2:06-CV-212-FTM-99DNF, 2006 WL 2620302, at *1 (M.D. Fla. Sept. 13, 2006)
(citing American Ass’n of People with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339
(M.D. Fla. 2003)). Courts have recognized three grounds to justify reconsideration:
“(1) an intervening change in the controlling law; (2) the availability of new evidence;
[or] (3) the need to correct clear error or prevent manifest injustice.” Sussman v.

Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). “A motion for
reconsideration should raise new issues, not merely readdress issues litigated
previously,” Paine Webber Income Props. Three Ltd. P’ship v. Mobil Oil Corp., 902 F.
Supp. 1514, 1521 (M.D. Fla. 1995), and must “set forth facts or law of a strongly
convincing nature to demonstrate to the court the reason to reverse its prior decision.”

Carter, 2006 WL 2620302, at *1 (citing Taylor Woodrow Constr. Corp. v.
Sarasota/Manatee Auth., 814 F. Supp. 1072, 1072-73 (M.D. Fla. 1993)). It is the
movant’s burden to establish the “extraordinary circumstances” justifying
reconsideration. Mannings v. Sch. Bd. of Hillsborough Cty., Fla., 149 F.R.D. 235,
235 (M.D. Fla. 1993).

“Unless the movant’s arguments fall into the limited

categories outlined above, a motion to reconsider must be denied.” Carter, 2006 WL
2620302, at *1.

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Defendant contends reconsideration is necessary because of the Court’s “clear
error in failing to hold Plaintiff to her burden.” Doc. 56 at 2. In support of this
contention, Defendant essentially reargues its motion to strike and expresses
disagreement with the Court’s prior Order. Compare Doc. 56 with Doc. 43. In its
Motion to Strike, Defendant argued that Plaintiff failed to identify the declarants in
her Rule 26 initial disclosures or amend her initial disclosures to supply their
identity, despite her continued obligation to do so. Doc. 43 at 4. Defendant also
argued that although declarants were identified in Plaintiff’s responses to
interrogatories as individuals with knowledge, Plaintiff failed to disclose the full
extent of their knowledge. Id. at 5-8. Moreover, Defendant argued that despite
Defendant’s request to Plaintiff to produce any affidavits and declarations made by
any person concerning the allegations in the complaint, Plaintiff failed to produce the
declarations. Doc. 43 at 6. Plaintiff responded by admitting that the declarants
were not initially identified in her Rule 26 disclosures; however, she argued that the
error was harmless because their names and subject of their knowledge was provided
through the course of discovery. Doc. 50.
Rule 26(a)(1)(A)(i), Federal Rules of Civil Procedure, provides, in pertinent
part,
a party must, without awaiting a discovery request, provide to the other
parties . . . the name and, if known, the address and telephone number
of each individual likely to have discoverable information—along with
the subjects of that information—that the disclosing party may use to
support its claims or defenses, unless the use would be solely for
impeachment[.]

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Fed. R. Civ. P. 26(a)(1)(A)(i).

Rule 26(e)(1), requires a party who has made a

disclosure under Rule 26(a) or responded to a discovery request to supplement that
disclosure or discovery response in a timely manner if the party learns that the prior
disclosure or response is materially incomplete or incorrect and if the additional
information has not otherwise been made known during the discovery process. Fed.
R. Civ. P. 26(e)(1)(A). Rule 37 provides for sanctions in the event of noncompliance
with Rule 26(a) or (e): “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.” Fed. R. Civ. P. 37(c)(1). “A harmless
failure to disclose exists when there is no prejudice to the party entitled to receive the
disclosure.” Baldeo v. Dolgencorp, LLC, No. 8:12-cv-02762-EAK, 2014 WL 4749049,
at *3 (M.D. Fla. Sept. 23, 2014). Moreover, the Advisory Committee Notes to Rule
37 include “the inadvertent omission from a Rule 26(a)(1)(A) disclosure of the name
of a potential witness known to all parties” as an example of “harmless” conduct.
Fed .R. Civ. P. 37(c) advisory committee notes (1993).
The court has broad discretion in determining whether a party's failure to
disclose discovery materials is either substantially justified or harmless. Engle v.

Taco Bell of Am., Inc., No. 8:09–cv–2102–T–33TBM, 2011 WL 883639, at *1 (M.D.
Fla. Mar. 14, 2011).

“The burden of establishing that a failure to disclose was

substantially justified or harmless rests on the nondisclosing party.” Mitchell v.

Ford Motor Co., 318 F. App’x 821, 824 (11th Cir.2009) (quotation marks omitted).

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When determining whether a failure was substantially justified or harmless,
reviewing courts consider the non-disclosing party’s explanation for the failure, the
importance of the information, and whether the opposing party is prejudiced by the
discovery violation. Lips v. City of Hollywood, 350 F. App’x 328, 340 (11th Cir.2009)
(citing Romero v. Drummond Co., 552 F.3d 1303, 1321 (11th Cir.2008)).
In its ruling on Defendant’s Motion to Strike, the Court considered the
arguments and legal authority presented by both parties. The Court determined
that Plaintiff met her burden of establishing that the failure to initially disclose the
identity of Stasheen and Teeter was harmless because they were introduced in the
course of discovery and were readily available for investigation by Defendant. On
April 20, 2015, nearly one year prior to the amended discovery deadline, Plaintiff
served her responses to Defendant’s first set of interrogatories.

Doc. 50-1.

In

response to the question requesting the identity of all individuals whom Plaintiff
knew or believed to have knowledge concerning the allegations in the operative
complaint and to specifically identify the knowledge they possess, Plaintiff listed both
Teeter and Stasheen.

Doc. 50-1 at 2.

As to Teeter, Plaintiff wrote:

“Barbara

Teeter (Executive Administrative Assistant/Gerber Licensed sales agent) – Was my
administrative assistant and she knew about my surgery, injury at work, medical
office visits, FMLA and about my termination.” Id. As to Stasheen, Plaintiff wrote:
“Loreen Stasheen (HR Manager Ft. Myers office) – Received my paperwork regarding
PTO time and request for FMLA to have my gall bladder surgery.” Id.

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Plaintiff further identified Stasheen in other interrogatory responses relating
to her leave requests due to her surgery as well as her approved leave. Id. at 13, 17.
Moreover, during her deposition on February 24, 2016, Plaintiff identified Stasheen
as the human resources manager that was involved in approving Plaintiff’s leave
requests.

50-2 at 1, 7, 12.

Likewise, Plaintiff also discussed Teeter during her

deposition, particularly in relation to how she was feeling and the medical issues she
was experiencing. See Doc. 50-2 at 14.
Plaintiff also asserted that the full scope of the declarants’ knowledge was not
known to her until after the motion for summary judgment was filed, as that is the
time when Stasheen and Teeter signed their declarations.

Doc. 50 at 3.

Accordingly, Plaintiff was not in possession of the declarations at the time of
Defendant’s request for production. Plaintiff also argued that because Stasheen was
the Defendant’s human resources manager and was trained it all of its human
resources procedures, Defendant knew or should have known that she possessed
discoverable information. Id. at 7-8.
Courts faced with motions to strike affidavits under similar circumstances
have held that the failure to initially disclose a witness under Rule 26 that was either
known to the opposing party or became known through discovery is harmless. See

e.g., Baldeo, 2014 WL 4749049, at *6-7; Cox v. Worldpay US, Inc., No. 8:13-cv-668-T36TBM, 2014 WL 4417855, at *2-3 (M.D. Fla. Sept. 8, 2014); F.T.C. v. Peoples Credit

First, LLC, No. 8:03 CV 2353 T 17TBM, 2005 WL 1785219, at *2 (M.D. Fla. July 26,
2005); Burden v. City of Opa Locka, No. 11-22018-CIV, 2012 WL 4764592, at *6-9

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(S.D. Fla. Oct. 7, 2012). For example, in Baldeo, in her response in opposition to a
motion for summary judgment, the plaintiff sought to rely on an affidavit by an
individual whose name was not provided in the plaintiff’s initial or supplemental
disclosure required by Rule 26. 2014 WL 4749049, at *6-7. The plaintiff, however,
identified the affiant in a request for production as an individual “involved . . . [f]rom
the [b]eginning.” Id. at *7. The plaintiff again referenced the affiant in a response
to the defendants’ request for discovery, although she never supplemented her
responses with contact information for the affiant or to provide the affidavit. Id.
The defendants, however, learned of the affiant’s knowledge when the plaintiff
described her conversations with the affiant during the plaintiff’s deposition. Id.
Thus, the court found that the affidavit should have come as no surprise to the
defendants, the failure to disclose the affidavit did not prejudice the defendants, and
accordingly declined to strike it. Id.
In Cox, the plaintiff sought to strike an affidavit submitted by the defendant
in support of its motion for summary judgment. 2014 WL 4417855, at *2. The
plaintiff argued that the defendant failed to disclose the affiant in its Rule 26 initial
disclosures, failed to list the affiant in its response to the plaintiff’s interrogatories,
and prevented the plaintiff from deposing the affiant by not permitting her to depose
the affiant after the discovery deadline. Id. The court was not convinced by either
argument. First, the court found that because the plaintiff listed the declarant in
her own Rule 26 disclosures, the defendant was not required to. Id. Additionally,
the court found that the defendant “also disclosed [the affiant] in its EEOC position

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statement.” Id. Lastly, the court acknowledged that plaintiff only learned of the
importance of the affiant’s testimony late in the discovery period and that the
defendant’s counsel refused to permit the plaintiff to depose the affiant after the
discovery deadline.

Id. at *3. Nevertheless, the court found that “the plaintiff]

neither subpoenaed [the affiant] prior to the discovery deadline, nor sought an
extension of the discovery deadline for the purpose of deposing [the affiant,]” and
found that this was likely a strategic decision. Id. Accordingly, the court declined
to strike the affidavit.
These cases suggest that once a witness is disclosed through discovery or
otherwise, it is the duty of the party prosecuting or defending the case to investigate
the case in due diligence. Defendant argued that although Plaintiff disclosed the
names and the subject matter of Stasheen’s and Teeter’s knowledge through
discovery, she did not disclose the exact extent of their knowledge. See e.g., Doc. 43
at 3-6. The Court was, and still is, unpersuaded by this argument. First, as noted,
Plaintiff referenced the declarants in responses to her interrogatories and throughout
her deposition. Plaintiff also disclosed the subject matter of the information she
believed that Stasheen and Teeter possessed. The exact extent of the declarants’
knowledge was not known to Plaintiff until after the Stasheen and Teeter signed their
declarations, which was after the motion for summary judgment was filed. Although
Rule 26(a)(1)(A)(i) requires disclosure of the identity of individuals with discoverable
information “along with the subjects of that information,” Defendant has not provided

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any case law to suggest to what extent Plaintiff must investigate the individuals prior
to disclosing the subject of their information in full and complete details.
The Court found Defendant’s cases in its Motion to Strike to be inapposite. In

Pete's Towing Co. v. City of Tampa, Fla., 378 F. App'x 917 (11th Cir. 2010), the
plaintiff attempted to use two affidavits in its response to the defendant’s motion for
summary judgment. The Eleventh Circuit affirmed the district court’s decision to
strike one affidavit in its entirety written by a declarant who had not been disclosed
in the plaintiffs Rule 26(a)(3) disclosures as a witness, and to strike another affidavit
in part because the declarant’s knowledge had not been disclosed in plaintiffs Rule
26(a)(3) disclosures. Id. at 920. The Eleventh Circuit noted that the plaintiff filed
the affidavits with its summary judgment response five weeks after the filing of
defendant’s motion and without first supplementing its rule 26 disclosures to list one
of the declarants as a witness and disclose the information offered by the other
declarant. Id. Here, the identity of the declarants and the subject matter of their
knowledge, to the extent Plaintiff was aware, was disclosed well prior to the discovery
deadline. The affidavits were signed after the motion for summary judgment was
filed and provided to the opposing counsel days after they were obtained by Plaintiff.
Doc. 50 at 11.
In U.S. E.E.O.C. v. SunTrust Bank, No. 8:12-CV-1325-T-33MAP, 2014 WL
1763200, at *5 (M.D. Fla. Apr. 30, 2014), the defendant filed a motion for summary
judgment and sought to rely upon a declaration that was previously requested but
not produced, signed by a witness not previously disclosed. Specifically, plaintiff

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propounded an interrogatory requesting that the defendant “identify each person to
whom the [d]efendant has spoken about this case, list their names and the dates when
the [d]efendant interviewed the witness, and indicate whether or not a statement,
either written or oral, was obtained.” Id. Additionally, in a request for production,
plaintiff requested that defendant produce “copies of all complete witness statements
obtained from all witnesses spoken to by [the d]efendant” regarding their case. Id.
One week prior to using the declaration, the defendant responded to plaintiff’s
interrogatory with a list of names that did not include the declarant.

Id. at *6.

Additionally, defendant objected to the request for production, however also stated
that it did not obtain any written statements other than those already produced. Id.
Although the defendant served its responses to the interrogatory and the request for
production one week prior to the date when the declaration was signed by the witness,
four days after the declaration was signed, the defendant’s counsel again reiterated
in an email communication to plaintiff’s counsel that “nobody submitted a written
statement to us concerning any substantive matter involving this litigation.” Id.
The court found that the defendant had a duty to disclose the declaration, especially
after the plaintiff’s counsel emailed the defendant’s counsel about the existence of a
witness statement after the statement had already been signed. Id. Although the
facts of U.S. E.E.O.C. suggest that the withholding of the discovery was essentially
deliberate concealment, such is not the case at bar.
In Brown v. Gulf Coast Jewish Family Servs., Inc., No. 810-cv-1749-T-27AEP,
2011 WL 3957771, at *1, *4 (M.D. Fla. Aug. 9, 2011), report and recommendation

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adopted, No. 8:10-cv-1749-T-27AEP, 2011 WL 4005928 (M.D. Fla. Sept. 8, 2011), the
plaintiff’s response in opposition included an affidavit of a declarant not previously
disclosed under Rule 26. The court struck the affidavit because plaintiff had “clearly
failed to meet the disclosure requirements of Federal Rule of Civil Procedure 26 by
failing to identify [the declarant] in [the p]laintiff’s Rule 26 disclosures, answers to
interrogatories, non-expert witness disclosures, or any other disclosure during
discovery.”

Id. at *4.

Such is not the case here where Plaintiff subsequently

disclosed the identity of the witnesses and the subject matter of their information.
In conclusion, the Court carefully considered the arguments, the legal
authority, and the supporting documents in Defendant’s Motion to Strike (Doc. 43)
and Plaintiff’s Response to Defendant’s Motion to Strike and held, as it does today,
that the declarations should not be stricken. The Court has reviewed the authority
cited by Defendant in its Motion to Reconsider (Doc. 56) and is not persuaded
otherwise. The Court finds Defendant’s arguments that there was clear error and
manifest injustice in the Court’s prior ruling unavailing.
Finally, Defendant seeks as alternative relief essentially an extension of the
discovery deadline to enable it to depose Stasheen and Teeter. The Eleventh Circuit
has determined that a court does not abuse its discretion by denying a motion for
extension of the discovery period where the parties had ample time and opportunity
to conduct discovery, yet failed to diligently do so. See Barfield v. Barton, 883 F.2d
923, 932 (11th Cir.1989).

Accordingly, the Court will not extend the discovery

deadline where, as here, Defendant failed to diligently pursue discovery, particularly

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when the identities of the witnesses whose declarations are now at issue were known
to Defendant well in advance of the discovery deadline.
ACCORDINGLY, it is hereby
ORDERED:
Motion to Reconsider this Court’s Denial of Defendant’s Motion to Strike, Or
In The Alternative, For Leave To Take The Depositions of Ms. Stasheen and Ms.
Teeter (Doc. 56) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 2nd day of August, 2016.

Copies:
Counsel of record

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