Geist v. Handke et al

Filing 58

ORDER denying 48 Motion for Sanctions; granting 53 Motion to Amend Scheduling Order. Signed by Magistrate Judge James P. O'Hara on 7/18/2018. (srj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GEOFFREY GEIST,
Plaintiff,
v.

Case No. 17-2317-JWL

AARON HANDKE
(d/b/a FoxPoint Trucks, LLC), and
OTRLEASING, LLC,
Defendants.
ORDER
The plaintiff, Geoffrey Geist, brings this FLSA action against Aaron Handke,
d/b/a FoxPoint Trucks, LLC, and OTRLeasing, LLC, alleging claims for unpaid overtime
wages and retaliation. On May 29, 2018, more than two months after the close of
discovery,1 and after the court entered its pretrial order (ECF No. 40), plaintiff served his
first supplemental Rule 26(a)(1) disclosures identifying six previously-undisclosed
individuals.2 Defendants have filed a motion for sanctions, specifically, to preclude these
witnesses from testifying at trial (ECF No. 48), and plaintiff has filed a cross-motion to
amend the scheduling order to permit the untimely disclosures (ECF No. 53). For the
reasons set forth below, defendants’ motion is denied, and plaintiff’s motion is granted.
Motion for Sanctions (ECF No. 48)
1

See ECF No. 20 (setting March 21, 2018, as the deadline for the completion of all
discovery, and requiring all supplemental disclosures to be served by February 9, 2018).
2

See ECF No. 45.
1

Plaintiff’s supplemental disclosures newly identify the following six individuals,
all of whom are current or former employees of defendants: Shanon Johnson, Samantha
Pearson, Kevin Schuler, Rachel Hemkens, Jacob Cummings, and Isaiah Martin.3
Defendants argue that plaintiff’s supplemental disclosures are untimely under the court’s
scheduling and pretrial orders, and that pursuant to Fed. R. Civ. P. 37(c)(1), the court
should preclude plaintiff from calling these witnesses at trial.
Rule 37(c)(1) states that if a party fails to identify a witness “as required by Rule
26(a) or (e), the party is not allowed to use that … witness to supply evidence … unless
the failure was substantially justified or is harmless.”4 The determination of whether the
“violation is justified or harmless is entrusted to the broad discretion of the district
court.”5 Although the court “need not make explicit findings concerning the existence of
a substantial justification or the harmlessness of a failure to disclose,”6 the court should
be guided by the following factors: (1) the prejudice or surprise to the party against
whom the testimony is offered; (2) the ability to cure any prejudice; (3) the potential for

3

ECF No. 49-1.

4

In addition to disallowing the use of the undisclosed witness, Rule 37(c)(1) gives
the court discretion to impose additional sanctions.
Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993
(10th Cir. 1999) (quoting Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d
1353, 1363 (7th Cir. 1996)); see also Chambers v. Fike, No. 13-1410, 2014 WL 3565481,
at *4 (D. Kan. July 18, 2014).
5

6

Woodworker’s Supply, 170 F.3d at 993.
2

trial disruption if the testimony is allowed; and (4) the erring party’s bad faith or
willfulness.7
Plaintiff claims he was unaware of the existence of the newly-disclosed witnesses
until May 10, 2018, when a “whistleblower”—one of defendant’s current nonsupervisory employees—e-mailed his counsel the following:
I am writing you in reference to Geist v. Handke et al. I have some valuable
resources that I would like to confidentially share with you. These are
people who have worked for OTR and you need to talk to. Listed in order
of employment …”8
The e-mail goes on to identify the six individuals disclosed in plaintiff’s supplemental
disclosures. Plaintiff’s counsel asserts, via declaration:
In the following weeks I spoke with the whistleblower and was informed
that the whistleblower had read the depositions of Aaron Handke, Roman
Fields, Laura Stack, and Blake Fulton that were attached to Plaintiff’s
Summary Judgment Motion. The whistleblower informed me that the
witnesses had perjured themselves regarding material facts in the case for
which the whistleblower had been a witness. Further interviews with some
of the identified “witnesses” confirmed that the Defendants had failed to
disclose them as witnesses. The evidence provided also supported that the
deposed individuals had perjured themselves both in their statements about
material facts, and in failing to identify witnesses to the events that give rise
to this lawsuit.9

7

Id.; Gutierrez v. Hackett, 131 Fed.Appx. 621, 625–26 (10th Cir. 2005) (applying
the Woodworker’s Supply factors); Scottsdale Ins. Co. v. Deere & Co., 115 F.Supp.3d
1298, 1305 (D. Kan. 2015); Hayes v. Am. Credit Acceptance, LLC, No. 13-2413, 2014
WL 3927277, at *4 (D. Kan. Aug. 12, 2014).
8

ECF No. 52-2.

ECF No. 52-1. Plaintiff’s supplemental disclosures indicate that each of the
newly-disclosed witnesses “[m]ay have knowledge that Blake Fulton and Aaron Handke
3
9

Plaintiff claims that because the newly-disclosed witnesses were unknown to him until
his counsel was contacted by a whistleblower, his failure to disclose is substantially
justified.

Additionally, because defendants were allegedly aware of—and failed to

disclose—these witnesses, plaintiff asserts his untimely disclosure is harmless, and that
he’s entitled to attorney’s fees.
Given the May 10, 2018, e-mail to plaintiff’s counsel identifying previously
unknown witnesses, and without any evidence of bad faith or willfulness, 10 the
undersigned U.S. Magistrate Judge, James P. O’Hara, finds plaintiff’s failure to disclose
to be substantially justified. Accordingly, the court need not address whether the failure
is harmless. In any event, the court observes that trial is not set until December 3, 2018.
On the record presented, as a practical matter the court doesn’t believe allowing plaintiff
to supplement his disclosures should disrupt the trial setting, even though some additional
discovery should be permitted. The court further finds that its modifications to the
pretrial order, set forth below, will alleviate the prejudice and surprise claimed by

provided false testimony under oath, that Blake Fulton threated the Plaintiff, that Plaintiff
and similarly situated employees worked in excess of forty hours in a work week and
were not compensated for that time, that previous complaints of sexual harassment and
retaliation were made against Blake Fulton, that the Defendant’s [sic] retaliated against
employees for making complaints, that Aaron Handke lied to potential investors and
failed disclose [sic] previous complaints in order to secure investment.” ECF No. 49-1.
To the extent defendants, in opposing plaintiff’s motion to amend, argue that
plaintiff’s failure to identify the bases of the witnesses’ knowledge constitutes evidence
of “bad faith,” the court finds the argument frivolous.
10

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defendants, at least to some extent.11 Insofar as plaintiff seeks his own attorney’s fees on
the basis that defendants failed to identify the newly-disclosed witnesses, the court finds
the instant record insufficient to reach such a determination.
Motion to Amend Scheduling Order (ECF No. 53)
For the same reasons set forth in plaintiff’s opposition to defendants’ motion for
sanctions, plaintiff argues good cause exists to modify the scheduling order to allow the
supplementation of initial disclosures out of time. Plaintiff asks the court to extend the
deadline for supplementing initial disclosures until July 27, 2018, to allow plaintiff to
amend his initial disclosures and answers to requests for production of documents to
include recently disclosed witnesses and obtained documents.
Defendants counter that rather than show “good cause” under Fed. R. Civ. P.
16(b)(4), plaintiff must show that amendment of the pretrial order is necessary to prevent
“manifest injustice.” According to defendants, the court should consider:
(1) disruption to the orderly and efficient trial of the case by inclusion of
the new issue; (2) prejudice or surprise to the party opposing trial of the
issue; (3) the ability of the party to cure any prejudice; and (4) bad faith by
the party seeking to modify the order.12
For the same reasons the court found that plaintiff substantially justified his failure

Much of defendant’s briefing is irrelevant to the court’s analysis—i.e., the court
need not address, at least at this juncture, the admissibility of the witnesses’ testimony,
the bases of the witnesses’ knowledge supporting their testimony, plaintiff’s obligation to
identify the source of the newly-discovered information, etc.
11

12

ECF No. 56 at 4 (citing Brigham v. Colyer, No 09-2210, 2010 WL 3909824, at
*2 (D. Kan. Oct. 1, 2010)).
5

to disclose, the court finds the pretrial order should be modified to prevent manifest
injustice. The factors relied upon by defendants are identical to those applied by the
court in addressing defendants’ motion for sanctions, and accordingly, plaintiff’s motion
is granted for the reasons set forth above.
In consideration of the foregoing,
IT IS HEREBY ORDERED:
1.

Defendants’ motion for sanctions (ECF No. 48) is denied.

2.

Plaintiff’s motion to modify the scheduling order to allow supplementation

of initial disclosures out of time (ECF No. 53) is granted.
3.

Plaintiff shall have until July 27, 2018, to amend his initial disclosures and

answers to requests for production of documents to include recently disclosed witnesses
and obtained documents.
4.

Discovery shall be re-opened, limited to the witnesses and documents

newly disclosed via plaintiff’s supplemental disclosures. All such discovery must be
served or commenced in time to be completed by October 1, 2018.
5.

This case remains set for trial on docket before the presiding U.S. District

Judge, John W. Lungstrum, on December 3, 2018, at 9:30 a.m. By November 1, 2018,
the parties shall confer and file a joint notice informing Judge Lungstrum whether trial is
still expected to take approximately 4 days.
Dated July 18, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
6

James P. O’Hara
U.S. Magistrate Judge

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