BUSENBARK et al v. PANHANDLE EASTERN PIPE LINE CO.

Filing 88

ORDER denying 81 Motion to Strike. Signed by Magistrate Judge Mark J. Dinsmore on 12/8/2014. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
H. JAMES BUSENBARK,
VICKIE L. BUSENBARK,
JIM BUSENBARK CORP. an Indiana
corporation,
BUSENBARK FAMILY FARMS I, LLC an
Indiana Limited Liability Company,

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Plaintiffs,
vs.
PANHANDLE EASTERN PIPE LINE CO. a
Delaware Limited Partnership,

No. 1:13-cv-01663-WTL-MJD

Defendant.
ORDER ON MOTION TO STRIKE
This matter comes before the Court on Panhandle Eastern Pipe Line Company’s
(“Defendant”) Motion to Strike. [Dkt. 81.] For the following reasons, the Court DENIES
Defendant’s motion.
I. Background
On October 18, 2013, H. James Busenbark, Vickie L. Busenbark, Jim Busenbark
Corporation, and Busenbark Family Farms I, LLC (“Plaintiffs”) filed this suit alleging that the
Defendant seized and forcefully maintained dominion and control over a portion of Plaintiffs’
property, in knowing violation of the law, and threatened Plaintiffs with criminal and civil
prosecution. [Dkt. 1 at 2-3.] In response, Defendant raised a Counterclaim for Condemnation,
alleging that, as the holder of a Federal Energy Regulatory Commission (FERC) certificate of
public convenience and in light of the necessity of its pipeline system for the delivery of natural

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gas, Defendant may acquire the real estate in question through eminent domain. [Dkt. 16 at 1718.]
In January of 2014, the parties purported to have reached a settlement under the
supervision of mediator John Van Winkle, which was reported to the Court. [Dkt. 41 at 3.]
Accordingly, the Court denied all pending motions as moot, vacated all set deadlines and
scheduled conferences, and ordered that counsel file a voluntary motion to dismiss the cause or
stipulated dismissal within thirty days of the date of the Court’s order. [Dkt. 19.] After several
motions for extension of time, which were granted by the Court, Defendant informed the
Plaintiffs of a “surprise” from a surveyor—that there was a flaw in the legal description of some
of the property at issue that stemmed back to the 1970 deed. [Dkt. 41 at 8.] Specifically,
Defendant alleges that it already owns a portion of the real estate in question and that the
settlement reached by the parties is unenforceable because of the mutual mistake. [Id. at 9.] The
Defendant accordingly moved to amend/correct its answer and counterclaim to reflect this
discovery. [Dkt. 36; Dkt. 39.]
Meanwhile, Plaintiffs maintain that the settlement remains enforceable, moving for the
Court to enforce the settlement agreement on the basis that the Defendant should be barred from
claiming mutual mistake regarding ownership of a portion of the land that it has failed to claim
as its own in the forty-four years since the mistake was made in 1970. [See Dkt. 41.] Defendant
made its response in opposition, to which Plaintiffs dutifully replied, attaching a “Declaration of
Greg Williams,” professional surveyor, to their reply brief. [Dkts. 64, 72, 72-2.] Asserting that
this Declaration is new evidence, akin to an expert report, Defendant moved for leave to file a
surreply, within which motion Defendant improperly moved to strike paragraphs 8 through 11 of
the Declaration. [Dkt. 75.] The Court granted the Defendant’s motion for leave to file a

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surreply, ordering Defendant to file any motion to strike separately, pursuant to Local Rule 7-1.
[Dkt. 79.] Accordingly, the Defendant filed a motion to strike paragraphs 8 through 11 of Greg
Williams’s Declaration, which motion is now before the Court. [Dkt. 81.]
II. Discussion
In short, Defendant bases its motion to strike on the assertions that paragraphs 8 through
11 of the Declaration in question are essentially (1) an untimely export report or supplement
thereto, which (2) was improperly used by Plaintiffs in rebuttal. [Dkt. 81.] Rule 26 of the
Federal Rules of Civil Procedure governs the first issue of whether or not such an expert report is
untimely. When one party discloses to another a witness who is retained to provide expert
testimony, the disclosure must be accompanied by a written expert report. Fed. R. Civ. P.
26(a)(2)(B). When the Court has not set a deadline for such a disclosure, the party wishing to
rely on such testimony must make a Rule 26 disclosure at least 90 days before the date set for
trial or within 30 days of the disclosure of another party in the event that the evidence is intended
to rebut a line of testimony disclosed by that other party. Fed. R. Civ. P. 26 (a)(2)(D).
Because the parties informed the Court that the case had settled in January of 2014, there
was no longer a deadline set for expert witness disclosure nor a trial date scheduled, so the
information in question is clearly not untimely due to violation of a court order or the 90-day
requirement. Additionally, in its motion to strike, Defendant does not assert that the affidavit of
its surveyor, Gary Kent, or the accompanying survey, which testimony Plaintiffs’ purport to
rebut, were Rule 26 expert report(s). [See Dkt. 81.] Thus, having failed to present evidence that
it first made a Rule 26 disclosure, the Defendant cannot successfully assert that the Declaration
of Greg Williams was a rebuttal disclosure that needed to comply with the Rule 26 requirements.

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Whether the disclosures of the two surveys and their accompanying affidavit and
Declaration qualify as Rule 26 disclosures is a moot issue, however, as the Court’s corrected
order setting an evidentiary hearing on Plaintiffs’ motion to enforce ordered the parties to
“identify any witnesses who may be offered at the hearing to present evidence under Federal
Rules of Evidence 702, 703 or 705, and for each such witness identified provide to opposing
counsel the report or disclosure required by Federal Rule of Civil Procedure 26(a)(2)(B) or
26(a)(2)(C) as appropriate” by December 10, 2014. [Dkt. 83.] Thus, since the Rule 26 deadlines
only apply “[a]bsent a stipulation or court order,” the Court’s scheduling order set such a
deadline. Fed. R. Civ. P. 26(a)(2)(D). Since this deadline has not yet passed and there is no
evidence that Mr. Williams’ survey itself (first filed by Defendant in its response to Plaintiffs’
motion to enforce) qualifies as a Rule 26 expert report, the Declaration is not an improper expert
report nor an improper supplement to an expert report, and the undersigned trusts that both
parties will make their disclosures pursuant to Rule 26 as ordered.
As for Defendant’s remaining argument, the Court has already addressed the issue of
whether the Declaration was improperly used as new evidence introduced in rebuttal upon
addressing Defendant’s motion for leave to file a surreply. [See Dkt. 79.] First, it is clear within
the Seventh Circuit that “motions to strike generally are disfavored.” Olson v. McGinnis, 986
F.2d 1424 (7th Cir. 1993). After acknowledging that “it is appropriate that Defendant be given
the opportunity to address the new materials that Plaintiffs submitted along with their reply brief
in support of their motion to enforce the settlement agreement,” the Court granted Defendant’s
motion for leave to file a surreply [id. at 3], which Defendant dutifully filed [Dkt. 80.] In light of
the fact that the Defendant has been given the proper opportunity to reply to Plaintiffs’
Declaration in its surreply to Plaintiffs’ motion to enforce the settlement agreement, any

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impropriety of Plaintiffs’ having used the Declaration to introduce new evidence in a reply brief
has been resolved, and the Court will not strike any portion of Plaintiffs’ Declaration.
III. Conclusion
For the aforementioned reasons, the Court hereby DENIES Defendant Panhandle’s
Motion to Strike. [Dkt. 81.]

Date: 12/08/2014
Distribution:
Nels John Ackerson
ACKERSON KAUFFMAN FEX PC
[e-mail]
Jessica Whelan
BINGHAM GREENEBAUM DOLL LLP
[e-mail]
Wayne C. Turner
BINGHAM GREENEBAUM DOLL LLP
[e-mail]
Ryan John Vershay
LEWIS WAGNER LLP
[e-mail]
Thomas A. Withrow
LEWIS WAGNER LLP
[e-mail]
A. Richard Blaiklock
LEWIS WAGNER, LLP
[e-mail]
Brad A. Catlin
PRICE WAICUKAUSKI & RILEY
[e-mail]
Ronald J. Waicukauski
PRICE WAICUKAUSKI & RILEY
[e-mail]
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