McDonald et al v. Hummingbird Aviation, LLC et al

Filing 36

ORDER & REASONS denying 23 MOTION in Limine to Exclude Witnesses and Exhibits as set forth therein. Signed by Chief Judge Sarah S. Vance on 6/30/09.(rll, ) Modified on 6/30/2009 to edit document type (rll, ).

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA THOMAS MCDONALD, ET AL. VERSUS HUMMINGBIRD AVIATION, LLC, ET AL. CIVIL ACTION NO: 08-3501 SECTION: R(5)

ORDER AND REASONS Before the Court is plaintiffs' Motion in Limine to exclude defendants from producing any witnesses or evidence in this matter. For the following reasons, the Court DENIES the motion.

Plaintiffs move the Court to strike defendants' witness and exhibit lists because defendants failed to file them by the deadline established by the Court's scheduling order. (R. Doc. 5). The Court's scheduling order instructed the parties to file

in the record and serve upon their opponents witness and exhibit lists by April 6, 2009. (R. Doc. 5). further provides that: The Court will not permit any witness, expert or fact, to testify or any exhibits to be used unless there has The scheduling order

been compliance with this Order as it pertains to the witness and/or exhibits, without an order to do so issued on motion for good cause shown. (R. Doc. 5). Defendants did not produce these lists until they

moved for leave to respond to plaintiffs' motion in limine on April 22, 2009. (R. Doc. 26). 2009. (R. Doc. 5). A court has "broad discretion" to enforce its scheduling order. See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). Federal Rule of Civil Procedure 16(f) specifically Trial is scheduled for June 15,

authorizes the Court to sanction a party's failure to comply with its scheduling order. The Fifth Circuit has provided four

factors that a court should consider in determining whether to exclude evidence because of a failure to comply with a scheduling order: (1) a party's explanation for its failure to timely identify its witnesses and exhibits; (2) the importance of the proposed evidence; (3) potential prejudice in allowing the admission of the exhibits and/or testimony; and (4) the availability of a continuance to cure such prejudice. See Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). Here, although defendants have failed to offer any explanation for failure to adhere to the Court's scheduling 2

order, the Court finds that it would be excessive to strike all of defendants' exhibits and witnesses. Defendants filed in the

record proposed witness and exhibit lists 16 days after the deadline in the scheduling order. (R. Doc. 26-5). The witness

list includes two witnesses and the exhibit list includes four exhibits. (R. Doc. 26-5). Given the brevity of the lists, the

Court finds that plaintiffs will likely incur no prejudice from the delay. Accordingly, the Court DENIES plaintiffs' motion.

New Orleans, Louisiana, this 30th day of June, 2009 ___ _________________________________ SARAH S. VANCE UNITED STATES DISTRICT JUDGE

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