Clifton v. Jeff Davis County, Georgia et al

Filing 74

ORDER denying Defendants' 67 Motion to Strike Mr. Toler's Affidavit. Signed by Magistrate Judge R. Stan Baker on 8/9/2018. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

TYLER BRENT CLIFTON,
Plaintiff,

CIVIL ACTION NO.: 2:16-cv-108

v.
JEFF DAVIS COUNTY, GEORGIA; and
RAY WOOTEN, HUGH BRANTLEY,
WANDA MARCHANT, WAYNE HALL,
CARLA ROBERTS POWELL, and SHERIFF
PRESTON BOHANNON, all in their
individual capacities,
Defendants.

ORDER
This matter is before the Court on Defendants’ Motion to Strike the Affidavit of Steve
Toler. (Doc. 67.) Plaintiff filed a Response. (Doc. 72.) For the reasons set forth below, the
Court DENIES Defendants’ Motion.
BACKGROUND
Plaintiff filed his Complaint on July 8, 2016, stating that he and other citizens researched
the use of taxpayer funds in Jeff Davis County, Georgia, including the use of special purpose
local option sales tax (“SPLOST”) funds and monies the director of the Recreation Department
and certain Sheriff’s Department employees spent. (Doc. 1, p. 3.) According to Plaintiff, his
actions “upset numerous Jeff Davis County employees.” (Id. at p. 4.) Plaintiff alleges that
Defendants later conspired to “effectuate[] and encourage[] [his] arrest and prosecution,”
“negligently or willfully prevented Plaintiff from obtaining open records,” defamed Plaintiff, and
intentionally inflicted emotional distress upon him as a result of Plaintiff’s investigation of the

expenditure of public funds.

(Id. at pp. 7–10.) Plaintiff later filed an amendment to his

Complaint. (Doc. 5.) Defendants filed a motion to dismiss, to which Plaintiff responded.
(Docs. 7, 13, 15, 16.) The Court granted the motion in part, finding that Plaintiff’s false arrest
claim was time barred and that he failed to state a malicious arrest claim. (Doc. 17, pp. 2–5.)
The Court also determined Plaintiff surrendered his Open Records Act claim and all claims
against the Jeff Davis County Sheriff’s Department. (Id. at p. 2 n.1 (citing Doc. 13, pp. 11, 28).)
The Court also directed Plaintiff to file a single, amended complaint. (Id. at pp. 5–6.)
Plaintiff filed his Amended Complaint on April 13, 2017. (Doc. 18.) The remaining
Defendants moved to dismiss certain portions of Plaintiff’s Amended Complaint. (Doc. 20.) On
July 17, 2017, the Court found Plaintiff’s defamation claim was time barred, but his intentional
infliction of emotional distress claim was not.

(Doc. 40, pp. 4–6.)

The Court dismissed

Plaintiff’s official capacity claims against the Jeff Davis County Board of Commissioners and
Defendants Wooten, Brantley, Marchant, Hall, Powell, and Bohannon. (Id. at pp. 6–7.)
Plaintiff then filed another Amended Complaint against Defendants and set forth federal
and state malicious prosecution claims, a conspiracy claim, and an intentional infliction of
emotional distress claim. (Doc. 43.) The Court entered an Amended Scheduling Order on
October 3, 2017, and the parties were to complete written discovery by November 14, 2017, and
de ben esse depositions by January 29, 2018, and file civil motions by December 18, 2017.
(Doc. 53, pp. 2–3.)
Defendants filed their summary judgment motion on December 18, 2017. (Doc. 56.)
Plaintiff responded on January 22, 2018, and included the affidavit of Steve Toler. (Docs. 61,
61-24.)

Defendants filed a reply on February 20, 2018.

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(Doc. 68.)

On this same date,

Defendants filed their Motion to Strike, (doc. 67); Plaintiff responded on March 13, 2018,
(doc. 72).
DISCUSSION
Defendants move pursuant to Federal Rule of Civil Procedure 37(a)(1) for the Court to
strike to affidavit of Steve Toler, which Plaintiff filed in opposition to Defendants’ motion for
summary judgment. (Doc. 67, p. 1.) Defendants assert Plaintiff failed to name Mr. Toler in his
Rule 26(a) disclosures as a person who might have helpful information in this litigation. (Id. at
p. 2.) Nevertheless, Defendants contend they named Mr. Toler in their disclosures, identifying
him as a former Jeff Davis County Commissioner, and stated Mr. Toler could be contacted
through Defendants’ counsel. (Id.) Defendants maintain Mr. Toler was not mentioned until
Plaintiff responded to their summary judgment motion, and they had no notice Plaintiff intended
to rely on Mr. Toler in this case. Defendants note Mr. Toler’s affidavit is dated less than three
(3) weeks after Plaintiff made his Rule 26(a) disclosures, yet he never amended his disclosures to
identify Mr. Toler as a person he would use to support his claims or defenses, did not set out the
substance of that support, or identify Mr. Toler’s affidavit as documentary support for his claims
or defenses. (Id. at pp. 2–3.) In addition, Defendants note discovery did not close in this case
until November 14, 2017, more than three (3) months after Mr. Toler’s affidavit is dated, yet
Plaintiff still did not disclose him. (Id. at p. 5.) According to Defendants, Plaintiff’s failure to
comply with Rule 26 was not substantially justified or harmless, and Mr. Toler’s affidavit should
be stricken from the record as a result. (Id. at p. 3.) In the alternative, Defendants request that
the Court re-open discovery so that they can depose Mr. Toler and allow them to modify and resubmit their summary judgment motion, if necessary. (Id. at p. 9.)

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Plaintiff responds that he approached Mr. Toler only after Defendants’ counsel agreed
that ex-commissioners were akin to ex-employees, i.e., they could be contacted directly by
opposing counsel. (Doc. 72, p. 2.) Plaintiff avers he held Mr. Toler’s affidavit as impeachment
evidence since Defendants listed him as someone with relevant information. (Id.) Moreover,
Plaintiff maintains he mentioned Mr. Toler during his deposition, which occurred on November
15, 2017. (Id. at p. 3 (quoting Doc. 57-5, p. 82).) Plaintiff contends he was not required to
disclose Mr. Toler under Rule 26(a) because he and the basic substance of his testimony had
“otherwise been made known.” (Id. at p. 4.) Further, Plaintiff states that the fact thatMr. Toler
was identified during the taking of his deposition supports his argument that no supplementation
was required. (Id. at p. 6.) Plaintiff also avers Mr. Toler’s affidavit should be admissible for
impeachment purposes, as Defendants have “repeatedly testified” they left the decision to indict
Plaintiff to law enforcement and did not have, or could not recall having, any meetings about
him. (Id. at pp. 6–7.)
Except under certain circumstances not relevant here, a party “must, without awaiting a
discovery request, provide . . . 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[.]” Fed. R. Civ. P. 26(a)(1)(A)(i). Additionally, a party who
has made its initial disclosures pursuant to Rule 26(a) “or who has responded to an interrogatory,
request for production, or request for admission—must supplement or correct its disclosure or
response . . . in a timely manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.”

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Fed. R. Civ. P. 26(e)(1)(A). “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 . . . unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1); McIntyre v. Marriot Ownership Resorts, Inc., No. 13-80184-Civ, 2015
WL 162948, at *7 (S.D. Fla. Jan. 13, 2015). The non-disclosing party has the “burden of
establishing that a failure to disclose was substantially justified or harmless.” Ojeda-Sanchez v.
Bland Farms, LLC, No. 6:08CV096, 2010 WL 2382452, at *1 (S.D. Ga. June 14, 2010) (citing
Mitchell v. Ford Motor Co., 318 F. App’x 821, 825 (11th Cir. 2009) (per curiam)). If a party
fails to comply with Rule 26, a court acts within its discretion “by striking an affidavit submitted
in opposition to summary judgment, pursuant to Rule 37(c).” Faulk v. Volunteers of Am., 444
F. App’x 316, 317–18 (11th Cir. 2011) (per curiam).
Likewise, “[t]he district court has broad discretion in determining whether a violation is
justified or harmless.” Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1359 (S.D. Ga. 2012) (citing
Catalina Rental Apts., Inc. v. Pacific Ins. Co., No. 06-20532-CIV, 2007 WL 1050634, at *2
(S.D. Fla. Apr. 03, 2007)), aff’d, 523 F. App’x 580 (11th Cir. 2013) (per curiam).
[I]n exercising its broad discretion to determine whether a [Rule 26 violation] is
substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion
analysis, a district court should be guided by the following factors: (1) the surprise
to the party against whom the evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which allowing the evidence would
disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the evidence.
Id. (alterations in original) (citing Two Men & a Truck Int’l, Inc. v. Res. & Commercial Trans.
Co., No. 4:08-cv-067, 2008 WL 5235115, at *2 (N.D. Fla. Oct. 20, 2008)). 1

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Other courts have distilled these factors to three: “‘(1) the importance of the testimony; (2) the reason
for the appellant’s failure to disclose the witness earlier; and (3) the prejudice to the opposing party if the
witness had been allowed to testify.’” Godwin v. Wellstar Health Sys., Inc., No. 1:12-CV-3752-WSD,
2015 WL 7313399, at *2 (N.D. Ga. Nov. 19, 2015) (quoting Bearint ex rel. Bearint v. Dorell Juvenile
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In this case, Plaintiff did not name Mr. Toler or provide the nature of his information in
his Rule 26(a) disclosures. However, Defendants did. (Doc. 72, p. 3 (citing Doc. 67, p. 23).)
Thus, Plaintiff arguably was under no obligation to disclose Mr. Toler to Defendants because
they were already aware of his existence as someone who might have knowledge of the facts
underlying this cause of action, and they had identified Mr. Toler as such in their disclosures.
Graley v. TZ Ins. Sols., LLC, No. 2:14-CV-636-FTM-CM, 2016 WL 4595066, at *3 (M.D. Fla.
Sept. 2, 2016) (“[F]ailure to initially disclose a witness that was either known to the opposing
party or became known through discovery is harmless[.]”) (citing Baldeo v. Dolgencorp, LLC,
No. 8:12-cv-08762, 2014 WL 4749049, at *6–7 (M.D. Fla. Sept. 23, 2014); Cox v. Worldpay
US, Inc., No. 8:13-cv-668-T-36TBM, 2014 WL 4417855, at *2–3 (M.D. Fla. Sept. 8, 2014);2
FTC 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 (S.D. Fla. Oct. 7, 2012)); Martin v. Wal-Mart Stores, Inc., No. 2:10-CV-268-KS-MTP, 2011
WL 6370107, at *2 (S.D. Miss. Dec. 19, 2011) (citing Hamburger v. State Farm Mut. Auto. Ins.
Co., 361 F.3d 875, 883 (5th Cir. 2004); EEOC v. Gen. Dynamics Corp., 999 F.2d 113, 115
(5th Cir. 1993)). Because Plaintiff arguably had no duty to re-disclose a relevant individual
already known to Defendants such as Mr. Toler, any purported Rule 26 violation was
“substantially justified.”

Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004)). These factors are essentially the same, whether set
forth as three or five.
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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 found that, because the plaintiff listed the declarant in
her own Rule 26 disclosures, the defendant was not required to do so. Id.
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Moreover, even if Plaintiff had such a duty to disclose under Rule 26, any such breach of
that duty was “harmless.” Abdulla, 898 F. Supp. 2d at 1359 (deficient export report did not
prejudice the opposing party where it provided notice and an opportunity to prepare its case);
contra Nance v. Ricoh Electronics, Inc., 1:06-cv-2396-RWS, 2008 WL 926662, at *3 (N.D. Ga.
Apr. 4, 2008) (finding that a plaintiff’s non-compliance with Rule 26(a) was not harmless
because defendant did not have the opportunity to depose the witnesses); see also Ross v. Corp.
of Mercer Univ., 506 F. Supp. 2d 1325, 1344 (M.D. Ga. 2007) (holding that party’s failure to
identify witnesses during discovery not harmless because opposing party “has not had the chance
to refute the alleged facts” attested to by those witnesses). As noted above, Mr. Toler was “made
known” to Defendants through their own disclosures and Plaintiff’s testimony at his deposition.
Additionally, Defendants were aware no later than July 21, 2017, that it was at least a possibility
that Plaintiff was interested in contacting ex-commissioners such as Mr. Toler. (Doc. 72, p. 2;
Doc. 72-1, p. 2.) Further, Plaintiff detailed the conversation he and Mr. Toler had during his
deposition, which was taken on November 15, 2017. (Doc. 57-5, p. 82.) Defendants thus had
ample notice and opportunity to investigate and analyze the evidence Mr. Toler supplies in his
affidavit. What is more, Defendants were able to make argument in rebuttal to Mr. Toler’s
affidavit in their reply to Plaintiff’s response to their motion for summary judgment. (Doc. 68,
pp. 2–4.) Thus, any prejudice Defendants may have suffered due to Plaintiff’s failure to disclose
Mr. Toler under Rule 26(a)—if he even had a duty to make such a disclosure—has been
alleviated. Accordingly, Rule 37 sanctions are not appropriate.

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CONCLUSION
For the reasons set forth above, the Court DENIES Defendants’ Motion to Strike Mr.
Toler’s Affidavit. (Doc. 67.)
SO ORDERED, this 9th day of August, 2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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