June v. Thomasson

Filing 59

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 12/20/2016. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VINCENT E. JUNE. JR.,

:

Plaintiff,

:

v.

:

OFFICER E. THOMASSON,

:

Defendant.

Civil Action No. GLR-14-2450

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Plaintiff Vincent E.
June’s Motion to Alter or Amend Judgment (ECF No. 45).
January

2016,

disposition.
No.

49).

the

Motion

was

fully

briefed

ripe

The Court held a hearing on July 6, 2016.
Following

supplemental briefs.

the

hearing,

the

parties

for
(ECF

submitted

Having reviewed all the briefs, the Court

finds no additional hearing is necessary.
(D.Md. 2016).

and

As of

See Local Rule 105.6

For the reasons outlined below, the Court will

grant the Motion.
I.

BACKGROUND

In September 2011, Defendant Officer E. Thomasson arrested
June

in

connection

with

an

assault

against

Goodwin in Anne Arundel County, Maryland.
1).

victim

Antonio

(Compl. ¶ 14, ECF No.

In March 2012, the State of Maryland dismissed the criminal

charges against June after he successfully asserted an alibi
defense.

(Id. ¶ 16).

In July 2014, June sued Officer Thomasson

under

42

U.S.C.

prosecution
Amendments.
During

in

§§

1983,

violation

1985,
of

and

the

1988

Fourth

for
and

malicious
Fourteenth

(Compl.).
discovery,

Officer

Thomasson

obtained

affidavits

from Goodwin and his mother Brenda Goodwin (“Mrs. Goodwin”).
(See ECF Nos. 27-3, 27-4).
“statements”
(Id.).

comprising

These affidavits are hand-written

a

series

of

questions

and

answers.

They state that they were taken by Jay Creech, co-

counsel for Officer Thomasson.

(Id.).

In her affidavit, Mrs. Goodwin asserts that when the police
came to the Goodwin residence to take a statement from her son,
Goodwin stated that “Vincent” was involved in the assault.
No. 27-4 at 2).

(ECF

She then explains that the police returned a

day or two later with a photo array and Goodwin identified an
individual in the array as someone who attacked him.
3).

(Id. at

Officer Thomasson maintains Goodwin identified June in the

photo

array,

and

June

beneath June’s photo.

does

not

dispute

that

Goodwin

signed

(See Def.’s Mem. Supp. Mot. Summ. J at 7,

ECF No. 27-1); (see also ECF No. 27-5) (photo array).
In

his

Affidavit”),

April
Goodwin

1,

2015

affidavit

confirms

his

(“Goodwin’s

mother’s

account

interaction with the police during the investigation.

First
of

his

Goodwin

asserts that a day or two after the assault, he dictated a
written

statement

in

which

he
2

identified

June

as

one

his

attackers and he picked June’s photo out of an array when asked
to identify someone who assaulted him.

(ECF No. 27-3 at 1–2).

Goodwin also declares that the police told him neither what to
write in the statement nor which photo to pick.

(Id.).

The

name “Antonio Goodwin” or the initials “AG” appear next to all
eighteen answers in Goodwin’s First Affidavit.

(Id. at 1–3).

The affidavit is signed, and Goodwin does not deny that the
signature is his.
Officer

(Id. at 3).

Thomasson

produced

Mrs.

Goodwin’s

affidavit

Goodwin’s First Affidavit to June on April 13, 2015.
No. 45-4).

(See ECF

On May 7, 2015, June notified Officer Thomasson that

June would depose Goodwin on May 21, 2015.
1–2).

and

(See ECF No. 35-3 at

But June cancelled the deposition on May 20, 2015 -- the

day before it was supposed to occur.

(See id. at 3).

The

parties did not depose Goodwin or his mother during discovery.
Discovery ended on May 26, 2015.

(See ECF No. 20 at 2).

On June 23, 2015, Officer Thomasson moved for summary judgment.
(ECF No. 27).

Officer Thomasson supported his Motion with Mrs.

Goodwin’s affidavit and Goodwin’s First Affidavit.

On July 10,

2015, June filed his opposition to Officer Thomasson’s Motion
for

Summary

opposition

Judgment.

with

a

Second Affidavit”).

second

(ECF

No.

28).

affidavit

(ECF No. 28-7).

3

June

from

supported

Goodwin

his

(“Goodwin’s

June secured Goodwin’s

Second Affidavit on June 12, 2015 -- almost three weeks after
the close of discovery.

(Id.).

In his Second Affidavit, Goodwin contradicts almost every
factual

assertion

in

his

First

Affidavit.

Indeed,

Goodwin

states that he “never brought up . . . June’s name or even said
Vincent to the police;” rather, it was the police that first
mentioned June.
police

asked

(Id. at 3).

about

June

so

In fact, Goodwin asserts, the
many

times

that

Goodwin

finally

agreed that June was present for the assault because Goodwin
thought the officers must have possessed evidence inculpating
June.

(Id.).

Goodwin then states that he signed his name next

to June’s photo after the officer “asked [him] if [he] generally
recognized anyone, not if [he] recognized anyone involved in the
assault.”
him

(Id.).

believe

Goodwin further states that the police made

that

they

would

not

leave

identified June as one of the assailants.

him

alone

until

(Id. at 4).

he

As for

his First Affidavit, Goodwin asserts that it is “not valid” and
he “revoke[s]” it because he “did not knowingly sign, nor did
[he]

understand

what

[he]

was

signing.”

(Id.).

Finally,

Goodwin declares that he does not believe June participated in
the assault and the police intentionally led him to believe June
was involved.
On

July

(Id.).
23,

2015,

Goodwin’s Second Affidavit.

Officer

Thomasson

(ECF No. 32).
4

moved

to

strike

On November 18,

2015, the Court granted Officer Thomasson’s Motion to Strike on
two alternative grounds.

First, the Court concluded Goodwin’s

Second Affidavit was a sham (Memo Op. at 8–9, ECF No. 40).
Second, the Court found that a Rule 37(c)(1) analysis militated
in favor of excluding Goodwin’s Second Affidavit as a sanction
for June’s failure to timely supplement his discovery responses.
(Id. at 10–11).

Relying on Goodwin’s First Affidavit, the Court

then concluded as a matter of law that Officer Thomasson had
probable cause to arrest June.

(Id.).

Thus, the Court granted

Officer Thomasson’s Motion for Summary Judgment and directed the
Clerk to close the case.1

1

In the final footnote in its November 18, 2015 Memorandum
Opinion, the Court addressed Officer Thomasson’s qualified
immunity argument -- an argument the Court characterized as “not
central” to Officer Thomasson’s Motion for Summary Judgment
because he first raised it in his reply brief. (Memo Op. at 14
n.3, ECF No. 40).
The Court concluded that because there was
probable cause for June’s arrest, Officer Thomasson would be
protected by qualified immunity.
(Id.).
Officer Thomasson
argued during the July 6, 2016 motions hearing, and he continues
to argue, that by finding qualified immunity, the Court is
somehow barred from reconsidering the rulings in its November
18, 2015 Order. The Court disagrees for at least two reasons.
First,
the
Court
need
not
have
addressed
Officer
Thomasson’s qualified immunity argument at the summary judgment
stage because by waiting to present it in his reply brief, he
waived it.
See Sher v. Luxury Mortg. Corp., No. ELH-11-3656,
2012 WL 5869303, at *9 n.11 (D.Md. Nov. 19, 2012) (concluding
defendant’s argument was waived because defendant did not raise
it until reply brief); see also Marshall v. James B. Nutter &
Co., 816 F.Supp.2d 259, 264 (D.Md. 2011) (“This Court has
previously held that ‘the ordinary rule in federal courts is
that an argument raised for the first time in a reply brief or
memorandum will not be considered.’” (quoting Clawson v. FedEx
Ground Package Sys., Inc., 451 F.Supp.2d 731, 735 (D.Md.
5

On December 16, 2015, June filed a timely Motion to Alter
or

Amend

Judgment

under

Rule

59(e)

(ECF

No.

45).

Officer

Thomasson filed an Opposition on December 21, 2015 (ECF No. 46),
and June submitted a Reply on January 7, 2016 (ECF No. 47).
After reviewing the parties’ briefs, the Court held a motions
hearing on July 6, 2016.

(ECF No. 49).

Following the hearing,

the Court issued an order reopening discovery for the limited
purpose of resolving June’s Motion to Alter or Amend.

(ECF No.

50).

to

The

depositions

Court

gave

regarding

the

parties

any

facts

forty-five
that

days

would

have

take
been

discoverable had the parties taken Goodwin’s deposition during
discovery,
surrounding
Affidavits.

including,
the

but

not

creation

limited

of

to,

Goodwin’s

the
First

circumstances
and

Second

(Id.).

During the renewed discovery period, the parties deposed
Mrs. Goodwin on August 2, 2016, but they did not depose her son.
Officer Thomasson explains that he attempted to subpoena Goodwin
for a deposition, but Goodwin refused to attend.

According to

2006))).
Second, the Court found Officer Thomason would be
entitled to qualified immunity because it also found as a matter
of law that Officer Thomasson had probable cause to arrest June.
In his Motion to Alter or Amend, June asks the Court to
reconsider whether the Court erred in finding probable cause.
Because the Court’s conclusion on qualified immunity was
predicated on its analysis of probable cause, the Court finds no
reason why it would be foreclosed from reconsidering probable
cause. For that matter, there is nothing barring the Court from
reconsidering qualified immunity, either.
6

Officer Thomasson, Goodwin called Officer Thomasson on July 28,
2016 to tell him that he would not travel to Maryland from
Philadelphia,

Pennsylvania,

where

he

temporarily

resides,

because he has an outstanding arrest warrant in Maryland.

(See

Suppl. Def.’s Opp’n Pl.’s Mot. Alter or Am. J. at 1–2, ECF No.
55).

Officer Thomasson did not move the Court to enforce the

subpoena or hold Goodwin in contempt.
On September 6, 2016, Officer Thomasson supplemented his
Opposition to June’s Motion to Alter or Amend Judgment.
No. 55).

(ECF

June responded on September 16, 2016 (ECF No. 56), and

Officer Thomasson replied on September 29, 2016 (ECF No. 57).
II.
A.

DISCUSSION

Rule 59(e) Standard
The Court may only alter or amend a final judgment under

Rule

59(e)

in

three

circumstances:

“(1)

to

accommodate

an

intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice.”

Pac. Ins. Co. v. Am.

Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
59(e)

“permits

a

district

court

to

correct

its

own

Rule

errors,

‘sparing the parties and the appellate courts the burden of
unnecessary appellate proceedings.’”

Id. (quoting Russell v.

Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.
1995)).

Litigants may not use Rule 59(e) motions to “relitigate
7

old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.”
(quoting 11
Procedure

§

Charles Alan
2810.1,

Wright, et al.,

at

127–28

(2d

Id.

Federal Practice &

ed.

1995)).

Stated

alternatively, “[w]here a motion does not raise new arguments,
but merely urges the court to ‘change its mind,’ [Rule 59(e)]
relief is not authorized.”

Medlock v. Rumsfeld, 336 F.Supp.2d

452, 470 (D.Md. 2002), aff’d, 86 F.App’x 665 (4th Cir. 2004).
Altering

or

amending

a

final

judgment

remedy which should be used sparingly.”

“is

an

extraordinary

Pac. Ins. Co., 148 F.3d

at 403 (citation omitted).
When a party argues that Rule 59(e) relief is necessary to
correct a clear error of law or to prevent manifest injustice,
mere disagreement with the Court’s previous decision will not
suffice.

U.S. ex rel. Becker v. Westinghouse Savannah River

Co., 305 F.3d 284, 290 (4th Cir. 2002) (quoting Hutchinson v.
Staton,

994

F.2d

1076,

1082

(4th

Cir.

1993)).

Rather,

to

justify altering or amending a judgment on this basis, “the
prior judgment cannot be ‘just maybe or probably wrong; it must
. . . strike the court as wrong with the force of a five-weekold,

unrefrigerated

F.Supp.2d

739,

741

dead

fish.’”

(D.Md.

2012)

Fontell

v.

(alteration

Hassett,
in

891

original)

(quoting TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir.
2009)).

In other words, the Court’s previous judgment must be
8

“dead wrong.”

Franchot, 572 F.3d at 194 (citation omitted).

Hence, a “factually supported and legally justified” decision
does not constitute a clear error of law.

See Hutchinson v.

Staton, 994 F.2d 1076, 1081–82 (4th Cir. 1993).

Additionally,

to show manifest injustice, June must demonstrate an error that
is “direct, obvious, and observable.”

Register v. Cameron &

Barkley Co., 481 F.Supp.2d 479, 480 n.1 (D.S.C. 2007).
B.

Analysis
June concentrates

on the third prong of the Rule 59(e)

standard, arguing the Court clearly erred as a matter of law
when it (1) struck Goodwin’s Second Affidavit under the sham
affidavit

doctrine,

(2)

excluded

Goodwin’s

Second

Affidavit

under Rule 37(c)(1), and (3) concluded Officer Thomasson had
probable cause to arrest June.2

The Court will address these

issues in turn.
1.
In

Sham Affidavit
its

concluded

November

Goodwin’s

18,
Second

2015

Memorandum

Affidavit

was

Opinion,
a

sham

the

Court

because

it

flatly contradicted Goodwin’s First Affidavit and June did not
produce

it

until

he

opposed

Officer

2

Thomasson’s

Motion

for

June also contends it is genuinely disputed whether
Officer Thomasson learned of June’s alibi prior to seeking
charges.
The Court, however, has already ruled that this
material fact is not genuinely disputed.
Because June simply
urges the Court to change its mind, the Court need not address
June’s argument. See Medlock, 336 F.Supp.2d at 470.
9

Summary Judgment.
ignored

June’s

June contends the Court clearly erred when it
explanation

for

the

contradictions

Goodwin’s First and Second Affidavits.

between

June argues the Court

must consider contradictory affidavits when resolving a summary
judgment motion as long as the party presenting the affidavits
explains
Court

the

must

contradictions.

take

Goodwin’s

June

Second

further

asserts

Affidavit

“at

that

face

the

value”

because to do otherwise would be to assess the credibility of
Goodwin’s affidavits.
Officer

(ECF No. 45 at 4).

Thomasson

contends

June’s

arguments

are

because the parties already litigated these issues.

barred

The Court

disagrees because June is careful to focus his arguments on the
manner in which the Court applied the sham affidavit doctrine in
its Memorandum Opinion -- June could not have advanced these
arguments before the Court issued its Memorandum Opinion.
The

Court

first

addresses

whether

the

sham

affidavit

doctrine permits a Court to consider contradictory affidavits
when the party presenting them explains the contradiction.

In

the Fourth Circuit, the genesis of the sham affidavit doctrine
is

Barwick

v.

Celotex

Corp.,

736

F.2d

946

(4th

Cir.

1984).

There, the plaintiff sued multiple defendants alleging personal
injuries due to asbestos exposure.

Id. at 948.

was deposed on two separate occasions.

The plaintiff

Id. at 959.

In attempt

to “resurrect” his case when confronted with motions for summary
10

judgment, the plaintiff prepared an affidavit that contradicted
much of his prior deposition testimony.

Id. at 959–60.

district

and

court

disregarded

the

judgment for the defendants.

affidavit

Id. at 952.

granted

The

summary

The Fourth Circuit

affirmed, concluding “[i]f a party who has been examined at
length on deposition could raise an issue of fact simply by
submitting an affidavit contradicting his own prior testimony,
this would greatly diminish the utility of summary judgment as a
procedure for screening out sham issues of fact.”

Id. at 960

(quoting Perma Research and Dev. Co. v. Singer, 410 F.2d 572,
578 (2d Cir. 1969)). The Fourth Circuit added that “[a] genuine
issue of material fact is not created where the only issue of
fact is to determine which of the two conflicting versions of
the plaintiff’s testimony is correct.”

Id. (quoting Radobenko

v. Automated Equip. Co., 520 F.2d 540, 544 (9th Cir. 1975)).
Fifteen

years

after

Barwick,

in

Cleveland

v.

Policy

Management Systems Corp., 526 U.S. 795 (1999), the Supreme Court
of the United States added an additional wrinkle to the sham
affidavit

doctrine.

The

Barwick

court

did

not

explicitly

address whether a party could rely on a contradictory affidavit
to

defeat

summary

contradictions.
cited

Barwick

judgment

if

the

party

explained

the

Nevertheless, in Cleveland, the Supreme Court
for

the

proposition

that

a

party

may

rely

on

contradictory affidavits when opposing summary judgment as long
11

as the party explains the contradictions: “a party cannot create
a genuine issue of fact sufficient to survive summary judgment
simply by contradicting his or her own previous sworn statement
(by, say, filing a later affidavit that flatly contradicts that
party’s

earlier

sworn

deposition)

without

explaining

contradiction or attempting to resolve the disparity.”

the

526 U.S.

at 806 (emphasis added).
The Fourth Circuit has yet to incorporate the above-quoted
language from

Cleveland

into any of its published opinions.3

Yet, this Court regularly cites and applies this language when
considering whether an affidavit is a sham.4

Thus, the Court

concludes it must not strike a contradictory affidavit as sham
if the party presenting it explains the contradictions.
The next question becomes, then, whether any explanation
suffices.

June

argues

the

explanation

3

need

only

adequately

The Court has incorporated this language into three nonbinding unpublished opinions. See Genesis Office Sys., Inc. v.
PNC Bank, N.A., 639 F.App’x 939, 941 (4th Cir. 2016); Lyons v.
Shinseki, 454 F.App’x 181, 185 (4th Cir. 2011); Chao v. Self
Pride, Inc., 232 F.App’x 280, 285 (4th Cir. 2007).
4
See, e.g., Atkins v. Burwell, No. JFM-15-2198, 2016 WL
4399304, at *6 (D.Md. Aug. 17, 2016); Morataya v. Nancy’s
Kitchen of Silver Spring, Inc., No. GJH-13-01888, 2015 WL
4459387, at *4 n.4 (D.Md. July 17, 2015); Streiff v. Anne
Arundel Cty. Bd. of Educ., No. CCB-13-845, 2014 WL 7212604, at
*4 (D.Md. Dec. 18, 2014); E.E.O.C. v. Greystar Mgmt. Servs.
L.P., No. ELH-11-2789, 2013 WL 6731885, at *21 (D.Md. Dec. 18,
2013); Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357, 362
(D.Md. 2012); E.E.O.C. v. Greater Balt. Med. Ctr., Inc., 769
F.Supp.2d 843, 850 (D.Md. 2011), aff’d, 477 F.App’x 68 (4th Cir.
2012).
12

resolve

the

Thomasson

contradictions

relies

on

between

Cleveland

to

affidavits.

argue

an

Officer

explanation

only

suffices if a reasonable juror could assume the truth of, or the
affiant’s good-faith belief in, the contradictory statements in
the earlier affidavit.
The

Court

rejects

Officer

Cleveland is inapposite.

Thomasson’s

position

because

That case dealt with a plaintiff that

first alleged in a Social Security Disability Insurance “(SSDI”)
application that she was “totally disabled” and later alleged in
a lawsuit under the Americans with Disabilities Act (“ADA”) that
she was able to “perform the essential functions” of her job,
with or without “reasonable accommodation.”
at 807.
clear

Cleveland, 526 U.S.

Writing for the unanimous Court, Justice Breyer made

that

the

Court

granted

certiorari

to

reconcile

the

“disagreement among the Circuits about the legal effect upon an
ADA

suit

of

benefits.”
summary

the
Id.

judgment,

application
at

800.
th[e]

for,

The

or

Court

explanation

receipt

of,

disability

held

that

“[t]o

defeat

[for

the

contradictory

statements] must be sufficient to warrant a reasonable juror’s
concluding that, assuming the truth of, or the plaintiff’s goodfaith

belief

in,

the

earlier

statement,

the

plaintiff

could

nonetheless ‘perform the essential functions’ of her job, with
or without ‘reasonable accommodation.’”
Officer

Thomasson

accurately

articulates
13

Id. at 807.
this

holding,

While
his

attempt to apply it to this case fails.

Having scrutinized

Cleveland, the Court finds no indication that the Supreme Court
intended that its holding would apply outside cases dealing with
SSDI applications that contradict ADA claims.
The parties cite no case, and the Court finds none, in
which the Fourth Circuit discussed the type of explanation that
is sufficient for a court to consider an affidavit with wholly
contradictory factual assertions.

The Court is not surprised

that no such case exists because the Court agrees with June that
ruling that one contradictory affidavit is a sham while the
other is not is tantamount to determining one affidavit is more
credible

than

the

other.

reserved for the factfinder.

Credibility

determinations

are

See Okoli v. City Of Balt., 648

F.3d 216, 231 (4th Cir. 2011) (“Credibility determinations, the
weighing

of

the

evidence,

and

the

drawing

of

legitimate

inferences from the facts are jury functions, not those of a
judge.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986))).

After thoroughly reviewing case law, the Court

concludes that in the Fourth Circuit, the rule remains that an
affidavit is not sham if the party presenting it “explain[s] the
contradiction

or

attempt[s]

to

resolve

the

disparity.”

Zimmerman, 287 F.R.D. at 362 (quoting Cleveland, 526 U.S. at
806).

14

Here,

June

explains

the

between Goodwin’s affidavits.

reasons

for

the

contradictions

In fact, the explanations for the

contradictions appear on the face of Goodwin’s Second Affidavit.
Goodwin explains that a county investigator prepared his First
Affidavit outside his presence and without his input.
28-7 ¶¶ 11–17).

(ECF No.

The county investigator had a conversation with

Mrs. Goodwin on the first floor of the Goodwin residence while
Goodwin was upstairs.

(Id. ¶ 12).

Following the conversation,

Mrs. Goodwin called her son downstairs and instructed that he
sign the affidavit the county investigator prepared.
13).

(Id. ¶

The county investigator neither discussed the assault with

Goodwin nor explained the affidavit to him.

(Id. ¶¶ 15, 16).

Goodwin signed the affidavit because his mother implored him to
do so out of her desire for the case to be terminated.
18).

June

repeated

this

explanation

in

his

(Id. ¶

Opposition

Officer Thomasson’s Motion for Summary Judgment.

to

(See Pl.’s

Opp’n Def.’s Mot. Summ. J. at 10-11, ECF No. 28).
Mrs.

Goodwin’s

August

2,

2016

deposition

testimony

does

nothing to rebut the explanation that Goodwin provided for his
contradictory affidavits.

Mrs. Goodwin did testify that she

never told Antonio he had to sign his First Affidavit.
Goodwin Dep. 18:4–6, ECF No. 57-1).

(Mrs.

But she also testified that

she could not remember whether she was actually present when the
county

investigator

prepared

Goodwin’s
15

First

Affidavit

and

Goodwin

signed

it.

(Id.

16:10–18).

Without

deposition

testimony from Goodwin, the explanation for his contradictory
affidavits stands unrefuted.
Officer Thomasson argues that even if the Court credits the
explanation for the contradictory affidavits, the Court should
strike both of Goodwin’s affidavits, leaving the uncontroverted
statements

from

Officer

Thomasson,

Mrs.

Goodwin,

and

DeLoatch that Goodwin gave June’s name to the police.

Officer
Officer

Thomasson relies on Williams v. Genex Servs., LLC, 809 F.3d 103,
110 (4th Cir. 2015) and Rohrbough v. Wyeth Labs., Inc., 916 F.2d
970, 976 (4th Cir. 1990), but neither of these cases support his
position.

In Williams, a Fair Labor Standards Act case, the

Fourth Circuit observed that the plaintiff’s resume belied the
description of her job responsibilities that she provided in the
context of the litigation.

809 F.3d 103, 110.

But the Fourth

Circuit never specified which exhibits the district court should
have disregarded.

See id.

expert

swore

witnesses

witness’s deposition.
“that

the

affidavit.”

district
Id.

In Rohrbough, one of the plaintiff’s
an

affidavit

916 F.2d at 976.
court

was

that

contradicted

the

The Fourth Circuit held

justified

in

disregarding

the

The court did not, however, address whether

the district court should have also disregarded the witness’s
deposition testimony.

See id.

16

The Court finds no cases in the Fourth Circuit that require
the Court to strike both of Goodwin’s affidavits.

The Court

adds

would

that

striking

both

of

Goodwin’s

affidavits

be

equivalent to ruling neither is credible, and the Court must not
make credibility determinations.

See Anderson, 477 U.S. at 255.

In sum, June offered an explanation for the contradictions
between Goodwin’s First and Second Affidavits.
requirement

that

plausibility

of

the
this

Court

evaluate

explanation.

the

There is no

reasonableness

Moreover,

refrain from assessing Goodwin’s credibility.

the

Court

or
must

Thus, the Court

concludes it clearly erred when it discounted June’s explanation
and ruled Goodwin’s Second Affidavit is a sham.
provided

an

explanation,

the

Court

finds

Because June

Goodwin’s

Second

Affidavit is not a sham.
2.
In
37(c)(1)

Rule 37(c)(1) and Southern States
its

Memorandum

was

an

Second Affidavit.

Opinion,

alternate

ground

the

Court

concluded

for

disregarding

Rule

Goodwin’s

The Court first determined that June violated

Rule 26(e) when he failed to timely disclose Goodwin’s Second
Affidavit.

The Court highlighted that Goodwin waited until two

weeks after the close of discovery to secure Goodwin’s Second
Affidavit, and he did not disclose it to Officer Thomasson until
approximately a month and a half after the close of discovery.
The Court then applied the test from Southern States to rule
17

June’s Rule 26(e) violation was not substantially justified or
harmless because (1) Officer Thomasson was completely surprised
by

Goodwin’s

Second

Affidavit,

(2)

Officer

Thomasson

had

no

ability to cure the surprise, and (3) Goodwin’s testimony was of
paramount importance.5
June contends the Court committed three clear errors of law
when it ruled exclusion was appropriate under Rule 37(c)(1).
First, June did not violate Rule 26(e) when he waited until
filing his opposition to summary judgment to disclose Goodwin’s
Second

Affidavit

product.
complete
improper

because

that

affidavit

is

attorney

work-

Second, by ruling Goodwin’s Second Affidavit was a
surprise

to

Officer

credibility

Thomasson,

determination

the

Court

regarding

made

an

Goodwin’s

affidavits and ignored that June maintained from the beginning
of this case that Goodwin never gave June’s name to the police.
Third, the Court did not consider the third and fourth factors
of the
Court

Southern States
should

disregard

test.
June’s

Officer Thomasson asserts the
arguments

5

and

deny

Rule

59(e)

In Southern States, the Fourth Circuit set forth five
factors a district court should consider when determining
whether a failure to disclose was substantially justified or
harmless: “(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to cure
the surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the evidence; and
(5) the nondisclosing party’s explanation for its failure to
disclose the evidence.” Southern States Rack And Fixture, Inc.
v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
18

relief because June is attempting to relitigate his case by
rehashing all the arguments he advanced unsuccessfully in his
opposition to Officer Thomasson’s Motion to Strike.

The Court

agrees, but only with respect to June’s first argument.

(See

ECF No. 34 at 12, 14 (arguing Goodwin’s Second Affidavit is
attorney work-product)).

The Court addresses June’s second and

third arguments below.
In his second argument, June attacks the Court’s conclusion
that

Goodwin’s

Second

Officer Thomasson.

Affidavit

was

a

complete

surprise

to

To review, in his Second Affidavit, Goodwin

testifies that a county investigator prepared Goodwin’s First
Affidavit without his input and Goodwin signed it at the behest
of his mother without reading it.

June argues the Court must

have implicitly ruled Goodwin’s First Affidavit is more credible
than his Second Affidavit because if his Second Affidavit were
true, Officer Thomasson would not have been at all surprised
that Goodwin changed his story.
On the contrary, however, the Court did not evaluate, much
less

determine,

Instead,

the

the

Court

credibility

found

Goodwin’s

of

Goodwin’s

Second

affidavits.

Affidavit

was

a

complete surprise for two principal reasons.

First, Goodwin’s

Second

only

Affidavit

Affidavit,

but

flatly

also

Mrs.

contradicted
Goodwin’s

not

affidavit

his

and

written statement to the police (ECF No. 27-3 at 4).
19

First

Goodwin’s
Second,

June did not disclose Goodwin’s Second Affidavit until almost a
month

and

a

half

after

the

close

of

discovery.

Officer

Thomasson disclosed Goodwin’s First Affidavit on April 13, 2015,
which was almost a month and half before the close of discovery.
At that time, June knew Officer Thomasson had a sworn statement
from Goodwin in which he asserted that without any influence
from the police, he identified June as one of his attackers.
Yet June took no action in the remaining month and half of the
discovery period to attempt to rebut the statements in June’s
First Affidavit.
21,

2015,

but

June scheduled Goodwin’s deposition for May

June

cancelled

it

the

night

before.

During

discovery, June did not provide Officer Thomasson with any sworn
statements from Goodwin that rebutted his First Affidavit.

So,

when June disclosed Goodwin’s Second Affidavit in July 2015, it
was, indeed, a complete surprise.
June further contends that when the Court ruled Goodwin’s
Second Affidavit was a complete surprise, the Court overlooked
that June asserted on five separate occasions that Goodwin never
gave June’s name to the police.
that

Goodwin

“did

not

In his Complaint, June asserts

identify

participated in the attack.”

[June]

(Compl. ¶ 11).

as

someone

that

In his answer to

interrogatory number 5, June asserted that Mrs. Goodwin told
June’s parents that when the police presented the photo array to
Goodwin, they asked him to identify anyone that he knew, not
20

anyone involved in the assault.

(ECF No. 45-1 at 6–7).

In his

answers to interrogatory numbers 20 and 21, June stated that
Goodwin will testify that he never introduced June’s name into
the investigation and one of the suspects in the assault case
told the police several times that June was not involved.
at 15–16).

(Id.

Finally, in an April 24, 2015 letter to defense

counsel, June asserted that he “realize[d] that Mr. Goodwin and
his

mother

[were]

attempting

to

recant

on

the

information

previously secured by [June].”
All the foregoing assertions share at least one element in
common: they are not sworn statements from Goodwin.

June may

have asserted on several occasions that Goodwin never identified
June as one of his attackers and would testify to the same, but
before submitting his opposition to summary judgment, June never
produced

a

sworn

statement

identifying

June.

Officer

from

Goodwin

Thomasson,

in

which

however,

he

denied

obtained

and

disclosed Goodwin’s First Affidavit in which Goodwin states that
he did identify June as one of the assailants.

Because Officer

Thomasson received no sworn testimony to refute Goodwin’s First
Affidavit -- which Goodwin signed under the penalties of perjury
-- Goodwin’s Second Affidavit was surely a complete surprise.
June’s third, and final, argument for why the Court clearly
erred

in

excluding

Goodwin’s

Second

Affidavit

under

Rule

37(c)(1) is that the Court ignored the third and fourth elements
21

of the Southern States test.
a

clear

error

of

law

The Court disagrees that this was

because

district

courts

have

“broad

discretion” to decide whether a nondisclosure of evidence is
substantially justified or harmless and they are not required to
“tick through each of the Southern States factors.”

Wilkins v.

Montgomery, 751 F.3d 214, 222 (4th Cir. 2014).
a.

Updated Southern States Analysis

At this point, the Court has concluded that it clearly
erred when it ruled Goodwin’s Second Affidavit was a sham, but
it did not clearly err when it excluded that affidavit based on
Rule 37(c)(1) and Southern States.

The only issue that remains

is whether the Court clearly erred when it concluded there was
probable cause for June’s arrest.

Before the Court can address

this final issue, however, it must resolve one threshold matter:
whether

the

Southern

States

Goodwin’s Second Affidavit.
Southern

States

test

are

Goodwin’s Second Affidavit.
the

Court’s

would

not

November

consider

18,

test

still

supports

excluding

The sham affidavit doctrine and the
alterative

grounds

for

striking

Hence, if nothing had changed since
2015

Goodwin’s

Memorandum

Second

Opinion,

Affidavit

when

the

Court

assessing

whether it clearly erred in concluding there was probable cause
for

June’s

significantly,

arrest.
and

manifestly unjust.

not

But

circumstances

considering

these

have

changes

changed
would

be

After the July 6, 2016 hearing, the Court
22

reopened discovery to permit the parties to take depositions
regarding any facts that would have been discoverable had the
parties taken Goodwin’s deposition during discovery, including,
but not limited to, the circumstances surrounding the creation
of Goodwin’s First and Second Affidavits.
Considering

the

present

(ECF No. 50).

circumstances,

Goodwin’s

Second

Affidavit is no longer a surprise, and by reopening discovery,
the Court gave Officer Thomasson an opportunity to cure the
original surprise associated with that affidavit.

Because the

Court

no

has

not

yet

disrupting a trial.

scheduled

a

trial,

there

is

risk

of

What is more, as the Court observed in its

Memorandum Opinion, the statements in Goodwin’s Second Affidavit
are of the utmost importance because they concern the central
material fact of whether Goodwin identified June as one of his
assailants.

See Doe v. AE Outfitters Retail Co., No. WDQ-14-

0508, 2015 WL 132609, at *4 (D.Md. Jan. 8, 2015) (concluding
fourth

Southern

States

factor

supported

considering

withheld

evidence because the evidence might be important to plaintiff’s
claims).

Thus, after updating the first two factors of the

Southern States test by incorporating present circumstances, and
coupling
concludes
37(c)(1).

that
that

with

the

exclusion

Accordingly,

third
is

and
no

because

fourth

longer
neither

factors,

warranted
the

sham

the

Court

under

Rule

affidavit

doctrine nor Rule 37(c)(1) provide a basis for the Court to
23

strike Goodwin’s Second Affidavit, the Court will consider that
affidavit when resolving whether it clearly erred in concluding
Officer Thomasson had probable cause to arrest June.
3.

Probable Cause

In its Memorandum Opinion, the Court concluded there was
probable cause for June’s arrest because there was no genuine
dispute

that

Goodwin

gave

June’s

name

to

the

police

and

identified June in a photo array when asked to identify anyone
involved in the assault.
as

a

direct

(ECF Nos. 40, 41).

consequence

of

erroneously

June contends that
excluding

Goodwin’s

Second Affidavit -- a clear error of law that the Court has now
conceded -- the Court committed a further clear error of law
when it ruled there was probable cause.
In

his

Motion

for

Summary

Judgment,

Officer

Thomasson

argued there was probable cause since it was undisputed that
Goodwin identified June as one his assailants.

To be sure,

Goodwin identified June in Goodwin’s written statement to the
police, (see ECF No. 27-3 at 4), and in his First Affidavit,
(see id. at 1–3).

Goodwin also selected June’s photo out of an

array.

(See id. at 5).

In his Second Affidavit, however,

Goodwin

disputes

identified

attackers.

that

he

June

as

one

of

his

Goodwin asserts that the police introduced June’s

name into the conversations and Goodwin only selected June’s
photo

after

the

officers

asked
24

him

to

identify

anyone

he

recognized.

(ECF

No.

testimony

consistent

reasonable

jury

28-7
with

could

find

¶¶

20–23,

Goodwin’s
Officer

probable cause to arrest June.

27–29).
Second

Thomasson

Relying

on

Affidavit,

a

did

not

have

Thus, the Court concludes it

clearly erred when it granted Officer Thomasson’s Motion for
Summary Judgment.
III. CONCLUSION
For the foregoing reasons, June’s Motion to Alter or Amend
Judgment (ECF No. 45) is GRANTED.
Order

entering

VACATED.

summary

The Court’s November 18, 2015

judgment

for

Officer

Thomasson

is

Officer Thomasson’s Motion for Summary Judgment (ECF

No. 27) is DENIED WITHOUT PREJUDICE.

A separate order follows.

Entered this 20th day of December, 2016
/s/
_______________________
George L. Russell, III
United States District Judge

25