Blazer v. Chrisman Mill Farms LLC
MEMORANDUM OPINION & ORDER: (1) GRANTING dft's 78 MOTION for Leave to file a sur-reply; the clerk is DIRECTED to file sur-reply previously tendered; (2) the Declaration of Timothy R. Pennington shall be EXCLUDED from the court's consideration. Signed by Judge Danny C. Reeves on 4/11/18.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
BRIAN R. BLAZER,
d/b/a/ CARPENTER BEE SOLUTIONS,
CHRISMAN MILL FARMS, LLC,
Civil Action No. 5: 17-430-DCR
Defendant Chrisman Mill Farms, LLC (“CMF”) has filed a motion for leave to file a
sur-reply in opposition to Plaintiff Brian Blazer’s reply in support of his opening claim
construction brief. [Record No. 78] As grounds, CMF asserts that Blazer’s reply brief
contained substantial inaccuracies and new arguments concerning CMF’s declaration from a
person of ordinary skill in the art (“POSITA”) that did not appear in his opening claim
construction brief. Because Blazer’s reply raises a new argument concerning a previouslyundisclosed declaration, the Court will grant CMF’s motion for leave to file its sur-reply.
However, for the reasons explained below, the Court will also exclude from its consideration
the declaration of Timothy R. Pennington.
This matter was transferred to this Court from the United States District Court for the
Northern District of Alabama in accordance with 28 U.S.C. § 1406(a), on October 16, 2017.
[Record No. 33] The parties previously met and conferred and filed a report [Record No. 25],
after which a Scheduling Order was entered by the district judge in Alabama. [Record No. 26]
This Court adopted the deadlines in the previously-filed scheduling order, but amended the
Markman briefing schedule. [Record No. 43] One deadline which the Court adopted was the
October 23, 2017 deadline for the exchange of Preliminary Claim Construction and Extrinsic
Evidence. [Record No. 26, p. 2] CMF admits that this deadline exists but it argues that,
because a declaration from a POSITA had not been obtained at the time of the preliminary
exchange deadline and the Court did not require the identification of extrinsic evidence in the
Joint Claim Construction Statement, disclosure of the declaration was unnecessary and not
required. Additionally, CFM argues that the burden to ask for any extrinsic evidence was on
Blazer. And because he did not conduct any discovery on the issue, CMF alleges that he
cannot now complaint about the declaration’s disclosure.
Rule 26 of the Federal Rules of Civil Procedure requires that parties supplement a
disclosure under this rule “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.” Fed. R. Civ. P. 26(e)(1)(a). If a party fails to supplement an earlier
response, Rule 37 provides that “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).
Here, CMF’s attempt to side-step its disclosure requirement (i.e., by arguing that
disclosure was not required because it obtained the declaration after the deadline and that
Blazer failed to seek the information through discovery) fails to take into account its duty to
supplement under Federal Rule of Civil Procedure 26(e). Federal Rule of Civil Procedure
37(c)(1) requires absolute compliance with Rule 26(e); that is, “it ‘mandates that a trial court
punish a party for discovery violations in connection with Rule 26 unless the violation was
harmless or is substantially justified.’” Roberts ex. rel. Johnson v. Galen of Va., Inc., 325 F.3d
776, 782 (6th Cir. 2003) (quoting Vance v. United States, No. 98–5488, 1999 WL 455435, at
*3 (6th Cir. June 25, 1999)).
Further, CMF’s argument that the patent rules of the Northern District of Alabama do
not apply is disingenuous. United States Magistrate Judge Wier explicitly told the parties that,
in his view, the Alabama local patent rules continue to apply in this litigation via the Court’s
Scheduling Order. [Record No. 60, ¶ 2] CMF did not object to that view. Instead, it has
consistently argued throughout this litigation that the Alabama patent rules continue to apply.
See Record No. 65, p. 1; Record No. 78-1, pp. 3, 12-13. The Court adopted the previously
agreed-upon deadlines which cited the relevant Alabama patent rule, but made several
amendments, including an amendment regarding what was required in the Joint Claim
Construction Statement. While CMF is correct that extrinsic evidence identification was not
required in the Joint Claim Construction Statement, nothing in the Court’s Scheduling Order
changed the previous extrinsic evidence disclosure deadline or CMF’s duty under Rule 26(e).
To the extent that CMF intends for the Court to consider the Declaration of Timothy R.
Pennington, Rule 37(c)(1) precludes such reliance based on its failure to supplement its
previous extrinsic evidence disclosures in a timely manner. As the Sixth Circuit has pointed
out, the advisory committee’s note on Rule 37(c) “strongly suggests that ‘harmless’ involves
an honest mistake on the part of a party coupled with sufficient knowledge on the part of the
other party.” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003) (internal quotation marks
and citation omitted).
The burden is on the “potentially sanctioned party to prove
harmlessness.” Vance, 1999 WL 455435, at *6.
In this case, CMF has not asserted that its failure to disclose the extrinsic evidence was
an honest mistake or that Blazer has knowledge of the declaration and opinions offered. While
CMF argues that Blazer could have sought discovery and asked about any extrinsic evidence,
it fails to acknowledge the reason that Blazer was caught by surprise by the 11th hour
disclosure: CMF’s failure to supplement its extrinsic evidence disclosures. The time to
disclose extrinsic evidence ended October 23, 2017. The deadline for completing claim
construction discovery ended December 20, 2017, and neither party sought leave to extend
that deadline. Now is not the time to reward CMF for its failure to follow the rules or abide
by this Court’s Scheduling Order.1
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
Defendant’s motion for leave to file a sur-reply [Record No. 78] is GRANTED.
The Clerk of Court is DIRECTED to file sur-reply previously tendered [Record No. 78-1]
The Court further notes that the Declaration of Timothy R. Pennington does not comport with
the requirements for an unsworn declaration under 28 U.S.C. § 1746. The declaration must be
signed by the writer, as true under penalty of perjury, and dated, in substantially the following
form if executed within the United States: “I declare (or certify, verify, or state) under penalty
of perjury that the foregoing is true and correct. Executed on (date). (Signature)”. See 28
U.S.C. § 1746.
The Declaration of Timothy R. Pennington [Record No. 73-1, Exhibit A, pp.
33-35] shall be EXCLUDED from the Court’s consideration.
This 11th day of April, 2018.
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