McMillan et al v. JPMorgan Chase Bank NA et al

Filing 70

RULING denying 41 Motion in Limine. Signed by Judge Shelly D. Dick on 02/06/2017. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DAVID MCMILLAN, ET AL.

CIVIL ACTION

VERSUS

15-500-SDD-RLB

JPMORGAN CHASE
BANK NA, ET AL.

RULING
Before the Court is the Plaintiffs’ Motion in Limine to Exclude Evidence of Third
Parties.1 Plaintiffs move the Court to prohibit the Defendant, JP Morgan Chase Bank
(“Chase”), from “referencing in any way the actions or any potential fault of any third
parties (other than CBRE), including Green Concepts Lawn and Landscape
Maintenance.”2 For the reasons which follow, the Court will DENY the Motion.
I.

FACTUAL BACKGROUND
The Plaintiff, David McMillan (“McMillan”), alleges that he sustained an injury on

July 17, 2014 when he fell on a premises owned and operated by Defendant, J.P. Morgan
Chase Bank (“Chase”). On July 17, 2014, Plaintiff, an employee of CBRE, was at the
Chase on 2828 Monterrey Boulevard in Baton Rouge, Louisiana, to perform routine
maintenance. Upon arrival, McMillan backed his work van into a parking space at the
bank. The rear of McMillan’s van abutted a grassy area on Chase’s property. From the
grassy area, Plaintiff opened the rear doors of the van to retrieve a ladder. Upon stepping

1
2

Rec. Doc. 41.
Rec. Doc. 41-1.

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down from the rear of the van with the ladder he stepped into a depression in the grass
and fell. Plaintiff claims the depression was camouflaged by the grass and that it
presented unreasonable risk of harm of which Chase knew or should have known and
failed to eliminate.
Shortly before the discovery deadline, the Parties learned the identity of a
landscaping sub-contractor Green Concepts Lawn and Landscape Maintenance (“Green
Concepts”) whom Chase contends may have comparative fault liability. Plaintiff moves to
exclude “any remark, statement, question, answer, inference, innuendo, document or
testimony of any nature, as direct evidence or for impeachment, regarding the actions or
potential fault of any third parties (other than CBRE, Inc.), including Green Concepts Lawn
and Landscape Maintenance.”3
II.

LAW AND ANALYSIS
Rule 26(a)(1)(A) requires that a party provide notice of evidence central to its

claims or defenses.4 Rule 37(c) provides that upon failure to do so, a “party is not allowed
to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.”5 In evaluating the failure to disclose,
the Court is called upon to evaluate the party’s explanation for its failure to disclose the
evidence, the importance of the evidence, the potential prejudice to the opposing party,
and the availability of a continuance.6

3

Rec. Doc. 41-1.
Fed.R.Civ.P. 26(a)(1)(A)(ii) mandates that a party disclose evidence that “the disclosing party has in its
possession, custody, or control and may use to support its claims or defenses, unless the use would be
solely for impeachment....”.
5
Fed.R.Civ.P. 37(c)(1).
6
CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d at 279–80.
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Plaintiff, movant on the Motion in Limine, argues that Martino v. Kiewit New Mexico
Corp.7 requires exclusion of evidence of third party fault in this case. The Court finds the
Martino case is distinguishable and not applicable to the facts of this case. Martino
involved exclusion of a contract that was not produced until after discovery had closed.8
The district court excluded the contract as a Rule 37(c) sanction “because Plaintiff wholly
failed to comply with the discovery timelines in this cause and never produced the contract
previous to this point” as required by Rule 26.9
The facts in this case are markedly different. First, Plaintiff was on notice that third
party fault was an issue by virtue of Chase’s Answer.10 Second, the disclosure of Green
Concepts as a potential third party tortfeasor was made by Chase before the expiration
of the discovery deadline.11 Hence, the issue is whether the disclosure of Green Concepts
was untimely under Rule 26 and, thereby, warranting an exclusionary sanction under Rule
37. The facts suggest not. Although Plaintiff first disclosed that there was a “grounds
keeper” who cut the grass at the Chase branch where the accident occurred and who
“has knowledge of the subject incident”.12 The name of the groundskeeper was
erroneously stated to be “Carey” and there was no mention of Green Concepts.13 It was
not until the Plaintiff’s deposition on September 13, 2016 that Chase learned that the
groundskeeper was “Kenneth”, not “Carey” and that he worked for a landscaping

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600 Fed.Appx. 908, 911 (C.A.5 (Tex.), 2015).
In Martino, Id note 4, the defendant filed a filed a motion for summary judgment on the same date as the
discovery deadline. Thirty days later the plaintiff opposed the summary judgment and offered the subject
contract as evidence in opposition to the summary judgment motion. The contract had not previously been
disclosed the contract. Furthermore, the Court noted that plaintiff’s “failure to disclose the . . . Contract
under Rule 26 followed a sequence of discovery violations”. Id at 911.
9
Id.
10
Rec. Doc. 2.
11
Rec. Doc. 24, discovery deadline was extended to November 28, 2016.
12
Rec. Doc. 51-3.
13
Id.
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company that had the word “green” in its name and that the landscaping company was
contracted by Plaintiff’s employer, CBRE.14
With the information gleaned from Plaintiff’s deposition, Chase identified the
landscaping company as Green Concepts and supplemented its Rule 26 disclosures with
the name of the company, address, and phone number by email to Plaintiffs’ counsel
dated November 17, 2016.15 Notably, the Defendant’s disclosure of Green Concepts was
made before the discovery deadline and shortly after the Plaintiff’s deposition.
Courts in this Circuit, including this District Court, have found supplementation of
Initial Disclosures made during the discovery period timely under Rule 26(e).16 The Court
finds that Chase supplemented its Rule 26 disclosures in a timely manner. The facts
reveal that Chase did not contract with Green Concepts. Rather, Green Concepts was
engaged as a sub-contractor to perform landscaping by Plaintiff’s employer, CBRE. Thus,
the Court finds it unlikely that Chase knew the identity of Green Concepts or had it in its
“possession, custody, or control”17 so as to give rise to an obligation to disclose any earlier
than it did.
On these facts, the Court finds that there was no Rule 26 failure to disclose by
Chase; hence, a Rule 37(c) discovery sanction is not warranted. Even if Rule 37(c) is
somehow implicated, exclusion of evidence of third party fault of Green Concepts is not
warranted because Chase has provided a reasonable good faith explanation for what
Plaintiff contends is late disclosure. While evidence of third party fault is potentially

14

Rec. Doc. 51-4.
Rec. Doc. 51-5.
16
Butler v. Exxon Mobile Refinery and Supply Co., 07-386, 2011 WL 289645 (M.D. La. 1/25/11); Nola Fine
Art, Inc. v. Ducks Unlimited, Inc., 13-4904, 2015 WL 459685 (E.D. La. 2/3/15).
17
Fed.R.Civ.P. 26(a)(1)(A)(ii).
15

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prejudicial to the Plaintiff, and may prove important in the eventual outcome, Plaintiff was
on notice that third party fault was a defense being advanced and, moreover, the Plaintiff
himself knew that the groundskeeper was engaged by his employer and he identified the
groundskeeper as having knowledge of the incident. Finally, Louisiana law requires that
comparative fault be assessed whether a person is a party to the action or a nonparty
and regardless of whether that person’s identity is known.18
The facts of this case simply do not warrant the extreme sanction of exclusion of
evidence of third party fault. Plaintiffs’ Motion in Limine to Exclude Evidence of Third
Parties19 is DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on February 6, 2017.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

18
19

La.C.C. art. 2323(A).
Rec. Doc. 41.

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