S.O.S. Resource Services, Inc. v. Bowers et al

Filing 53

OMNIBUS ORDER granting 46 Motion to Strike ; denying 47 Motion to Strike. Signed by Judge Marcia G. Cooke on 11/4/2015. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-Civ-22789-COOKE/TORRES
S.O.S. RESOURCE SERVICES, INC.,
Plaintiff,
vs.
ROBERT DENNIS BOWERS, an
individual, DAVID DANIELS, an
individual, PATRICIA BATHURST,
an individual, OMNI BENEFITS
GROUP, INC., NATIONAL HEALTH
PARTNERS, INC., and LIFEFORCE
TECHNOLOGIES, INC.,
Defendants.
_______________________________________/
OMNIBUS ORDER
THIS MATTER is before me on Defendants’ Joint Motion to Strike Plaintiff’s
Expert Witness Disclosure and to Exclude Expert Witness Testimony (“Motion to Strike
Expert Witness Disclosure”) (ECF No. 46) and on Third Party Defendant’s Motion to
Strike Omni Benefits Group’s Third Party Claim or Alternatively to Dismiss the Third Party
Claim for Lack of Jurisdiction (“Motion to Strike Third Party Claim”) (ECF No. 47). I
have reviewed the arguments, the record, and the relevant legal authorities pertaining to
both Motions. I will address each Motion in turn.
I. Motion to Strike Plaintiff’s Expert Witness Disclosure
In their Motion to Strike Plaintiff’s Expert Witness Disclosure, Defendants seek to
strike and exclude from trial those experts whose disclosures do not comport with the
deadlines set forth in my Scheduling Order.
To better understand the relief Defendants seek, a brief review of the relevant
deadlines pertaining to the disclosure of experts is necessary. Plaintiff filed its Complaint
on July 29, 2014 (ECF No. 1). Pursuant to my Order Setting Civil Trial Date and Pretrial
Deadlines (ECF No. 27), entered on November 17, 2014, Plaintiff was required to furnish
Defendants with its expert witness list, along with the summaries and reports required under

Federal Rule of Civil Procedure 26(a)(2), by July 10, 2015. Defendant was to furnish the
same to Plaintiff on or before July 17, 2015. All expert discovery was to be complete by
August 13, 2015.
Defendants filed potentially case dispositive motions to dismiss in September 2014,
which became ripe in October 2014. I entered my Order granting in part and denying in
part Defendants’ motions to dismiss (ECF No. 31) on May 21, 2015. In the interim, the
Defendants filed an unopposed Motion for Continuance of Pretrial Deadlines Pending the
Court’s Ruling on Defendants’ Motion to Dismiss Action (ECF No. 29) on March 11, 2015,
which I denied. The parties then filed a Joint Motion for Continuance of Pretrial Deadlines
(ECF No. 33) on June 14, 2015, which stated that “[d]ue to the fact that the Motion to
Dismiss had been pending for a substantial period of time, the parties had largely abstained
from conducting discovery in an effort to avoid unnecessary attorneys’ fees and travel
costs.” The parties sought a thirty-day continuance of all pretrial deadlines, which I denied
with the caveat that parties were free to conduct discovery beyond the discovery deadline,
but without Court intervention. See Endorsed Order, ECF No. 35.
On July 17, 2015, Defendants Robert Dennis Bowers, Omni Benefits Group, Inc.,
and Lifeforce Technologies, Inc. collectively filed an Unopposed Motion for Enlargement
of Time to Furnish Parties With Expert Witness List (ECF No. 38), which I granted in part
for good cause shown. Defendants had through July 24, 2015 by which to furnish parties
with their expert witness list. See Endorsed Order, ECF No. 41. Subsequently, on August
16, 2015, nearly two months after the close of fact discovery, Plaintiff filed a Motion to
Compel Production of Documents (ECF No. 43), which Judge Torres denied:
The motion to compel is Denied as quite untimely under the
Court’s Scheduling Order. The requests at issue were served
only two days prior to the discovery cutoff which left Defendant
no time to respond within the cutoff. Moreover, the motion
itself was filed two months after the cutoff. And, no showing
or good cause of any kind was set forth in the motion why
these requests could not or should not have been served well
before the cutoff date, especially given the claim that the
requested information is essential to Plaintiff’s case.
Order, ECF No. 45. Thereafter, Defendants Robert Dennis Bowers, Patricia Bathurst,
Omni Benefits Group, Inc., National Health Partners, Inc., and Lifeforce Technologies, Inc.
filed their Motion to Strike Expert Witness Disclosure (ECF No. 46). Defendants argue
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that Plaintiff’s expert witness disclosure must be stricken pursuant to Federal Rule of Civil
Procedure 37(c)(1) as incomplete.

More specifically, Defendants argue that Plaintiff’s

expert witness disclosure fails to comply with Federal Rule of Civil Procedure 26(a)(2) in
that it is unsigned, includes neither a report nor any actual opinions or exhibits, and fails to
provide the facts or data upon which the expert’s opinions are based. Defendants state that
they would be “severely prejudiced by allowing Plaintiff’s witness to testify under such
circumstances” because Defendants cannot prepare for a meaningful cross-examination or
identify rebuttal witnesses. Def’s Mot. Strike 4. Defendants also state that a deposition
would not remedy Plaintiff’s incomplete disclosure since Defendants are precluded from
deposing any expert witness without first being in possession of the expert witness’s report,
pursuant to Federal Rule of Civil Procedure 26(b)(4)(A). See id.
In response, Plaintiff states that Defendants’ “non-production of documents related
to revenues and profitability of the CareExpress Product” had the effect of “depriving
Plaintiff of its right to due process and its right to retain and rely upon its expert witness.”
Pl.’s Resp. 4. Plaintiff further states that “[t]his circumstance is unduly prejudicial to the
Plaintiff, especially under the instant circumstances where both parties have on multiple
occasions moved this Court to extend the deadline to conduct discovery.” Id. Plaintiff then
requests that this Court enter an order compelling Defendant National Health Partners, Inc.
to produce documents responsive to Plaintiff’s second request to produce. Id. at 5.
A. Legal Standard
Federal Rule of Civil Procedure 26(a)(2)(A) provides that “a party must disclose to
the other parties the identity of any witness it may use at trial to present evidence under
Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). This disclosure
must include “a written report—prepared and signed by the witness…[which] must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons
for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits
that will be used to summarize or support them…” Fed. R. Civ. P. 26(a)(2)(B). This
disclosure must also be made “at the times and in the sequence that the court orders [ ] [or]
absent a stipulation or court order … at least 90 days before the date set for trial[.]” Fed. R.
Civ. P. 26(a)(2)(D).
Federal Rule of Civil Procedure 37 states that [i]f a party fails to provide the

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information required by Rule 26, “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). Substantial justification is
“justification to a degree that could satisfy a reasonable person that parties could differ as to
whether the party was required to comply with the disclosure request.” Hewitt v. Liberty
Mut. Grp., Inc., 268 F.R.D. 681, 682 (M.D. Fla. 2010). A failure to timely make the required
disclosures is harmless when there is no prejudice to the party entitled to receive disclosure.
Id. at 683. The party failing to comply with Rule 26(a) bears the burden of establishing that
its nondisclosure was either substantially justified or harmless. Id.
B. Analysis
After thoroughly reviewing the record and the arguments presented by both sides, I
do not find that Plaintiff’s failure to timely and completely disclose its expert witness report
is substantially justified or harmless. Plaintiff assigns blame to this Court for the Court’s
delayed ruling on Defendants’ motion to dismiss, but completely fails to take responsibility
for its own discovery failings throughout this case. First, Plaintiff unilaterally decided to
abstain from participating in discovery without this Court’s knowledge, and did not file for
a continuance of pretrial deadlines until June 15, 2015, four days before the close of fact
discovery. Second, Plaintiff alleges that Defendant National Health Partners, Inc. has acted
in bad faith by withholding documents that are critical to Plaintiff’s case, however Plaintiff
only requested these supposedly case-critical documents on June 15, 2015, four days before
the close of fact discovery. Third, Plaintiff did not seek any court relief when it became
clear that Defendant was not going to respond to Plaintiff’s request. Plaintiff only filed a
motion to compel production of documents on August 16, 2015, which Judge Torres
rejected as untimely and without good cause. Fourth, as Judge Torres pointed out in his
Order, Plaintiff’s delay in serving its requests and seeking court intervention to enforce its
requests is especially confusing given Plaintiff’s claim that the requested information is
essential to Plaintiff’s case. Finally, Plaintiff only retained its expert witness on July 10,
2015, the day that its expert witness reports were due under the Court’s Scheduling Order.
Thus, a review of Plaintiff’s behavior during the course of discovery in this case
reveals that Plaintiff’s issues cannot be attributed to anyone except for Plaintiff. A court can
only assist those parties who help themselves, and here, the record indisputably

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demonstrates that Plaintiff was its own worst enemy. Had Plaintiff complied with this
Court’s Scheduling Order, timely served requests for production on Defendants, timely
requested relief from this Court in the form of a motion to compel, and timely designated
an expert witness, Plaintiff would not be in this situation. As Plaintiff has not fully and
completely disclosed its expert witness reports to Defendants in line with Federal Rule of
Civil Procedure 26(a) and because Plaintiff has completely failed to abide by the deadlines
set forth in this Court’s Scheduling Order, I find that Defendants would be unduly
prejudiced if Plaintiff were allowed to rely on its proposed expert witness, Alexander
Fernandez. Therefore, Defendants’ Motion to Strike Expert Witness Disclosure is granted.
II. Motion to Strike Third Party Claims
Third Party Defendant Salvatore Russo (“Third Party Defendant” or “Mr. Russo”)
filed a Motion to Strike Third Party Claims on the grounds that Mr. Russo was improperly
added to this litigation well beyond the Court’s joinder of parties’ deadline and two months
after the fact discovery deadline. Additionally, Mr. Russo erroneously argues that this
Court lacks jurisdiction to entertain the claims brought against him due to lack of
supplemental jurisdiction.
However, as Defendant Omni Benefits Group, Inc. points out in its Response brief,
its claim involving Mr. Russo is a compulsory counterclaim under Federal Rule of Civil
Procedure 13(a), and joinder of a third party to that compulsory counterclaim is permissible
under Federal Rules of Civil Procedure 13(h) and 19(a). As many courts have found, a
court may exercise supplemental jurisdiction over a party, pursuant to 28 U.S.C. § 1367,
even when doing so would destroy diversity, when that party is a party to a compulsory
counterclaim. See 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1436 (3d ed. 1998) (referencing persons brought into an action under Rule 13(h) as parties to
a compulsory counterclaim, “a party can be added for purposes of adjudicating those claims
without regard to the party’s citizenship or to whether the party is joined pursuant to Rule
19 or Rule 20, since the party’s presence will not be deemed to destroy the court’s existing
jurisdiction.”).
Additionally, Defendant Omni Benefits Group, Inc.’s joinder of Mr. Russo was
proper pursuant to Federal Rule of Civil Procedure 12(a)(4)(A), which states that a party
has fourteen days after a court rules on a motion within which to serve a responsive

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pleading. I ruled on Defendant’s motions to dismiss on May 21, 2015 and Defendant Omni
filed its answer, affirmative defenses, and counterclaims on June 4, 2015. I do not believe
that Defendant Omni’s addition of Mr. Russo to this litigation will result in any prejudice to
Mr. Russo in terms of defending against the claims alleged because, as the president of
Plaintiff S.O.S., Mr. Russo presumably has access to the discovery gathered by Plaintiff
S.O.S. Therefore, Mr. Russo’s Motion to Strike Third Party Claim is denied.
III.

Conclusion
For the foregoing reasons, it is ORDERED and ADJUDGED that:
1.

Defendants’ Joint Motion to Strike Plaintiff’s Expert Witness Disclosure and

to Exclude Expert Witness Testimony (ECF No. 46) is GRANTED.
2.

Third Party Defendant’s Motion to Strike Omni Benefits Group’s Third Party

Claim or Alternatively to Dismiss the Third Party Claim for Lack of Jurisdiction
(ECF No. 47) is DENIED.
DONE and ORDERED in chambers, at Miami, Florida, this 4th day of November
2015.

Copies furnished to:
Counsel of Record

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