Gil v. Winn Dixie Stores, Inc.
ORDER granting in part and denying as moot in part 52 Motion to Strike. Show Cause Response due by 6/2/2017. Signed by Judge Robert N. Scola, Jr. on 5/31/2017. (jle)
United States District Court
Southern District of Florida
Juan Carlos Gil, Plaintiff
Winn-Dixie Stores, Inc., Defendant
) Civil Action No. 16-23020-Civ-Scola
Order on the Defendant’s Motion to Strike
This matter is before the Court on the Defendant’s motion to strike the
Plaintiff’s trial exhibits P-18, P-20, and P-21, and for an award of attorneys’
fees (ECF No. 52). The Plaintiff did not substantively respond to the
Defendant’s motion, and the time to do so has passed. However, after the
Defendant filed the motion, the Plaintiff filed his Third Amended Exhibit List,
which removed exhibit P-18 (ECF No. 53). Therefore, the Court denies as moot
the Defendant’s motion to strike exhibit P-18.
Exhibits P-20 and P-21 are still listed on the Plaintiff’s Third Amended
Exhibit List, and copies of the exhibits were filed along with the exhibit list
(ECF No. 53). Exhibits P-20 and P-21 consist of a settlement agreement and a
consent decree from two other matters, neither of which involved either Juan
Carlos Gil or Winn-Dixie Stores, Inc. The Defendant’s motion represents that
the Plaintiff never produced the documents. (Mot. at 4, ECF No. 52.) Federal
Rule of Civil Procedure 26(a) requires each party to provide to the other parties
a copy of all documents that the disclosing party may use to support its claims
or defenses. If a party fails to provide information as required by Rule 26(a), the
party is not allowed to use that information at trial unless the failure was
substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1).
Not only has the Plaintiff neglected to respond to the Defendant’s motion
in order to explain why the failure to produce the documents was substantially
justified or harmless, the settlement agreement and consent decree are
irrelevant and inadmissible. If the Plaintiff prevails, it is possible that the
consent decree and settlement agreement could be used to aid the Court in
fashioning an appropriate remedy, but they are not admissible at trial as
evidence of the Defendant’s liability.
Accordingly, the Court grants the Defendant’s motion to strike exhibits
P-20 and P21, and denies as moot the Defendant’s motion to strike exhibit P18 (ECF No. 52). The Defendant shall show cause why the Court should not
award the Defendant the attorneys’ fees incurred in filing the motion to strike
on or before 12:00 p.m. on June 2, 2017.
Done and ordered, at Miami, Florida, on May 31, 2017.
Robert N. Scola, Jr.
United States District Judge
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