Hardrick et al v. City of Detroit et al

Filing 78

ORDER GRANTING in part and DENYING in part 59 Motion to Strike--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FLOYD ALLEN HARDRICK,
JR., et al.,
Plaintiffs,
v.

Case No. 2:15-cv-13884
District Judge Nancy G. Edmunds
Magistrate Judge Anthony P. Patti

THE CITY OF DETROIT, et
al.,
Defendants
___________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO STRIKE (DE 59) AND REMOVING THE MOTION FROM
THE SEPTEMBER 13, 2016 HEARING
I.

THE INSTANT MOTION
This matter is before the Court for consideration of Defendants’ motion to

strike Plaintiffs’ first supplemental witness list (DE 59) and Plaintiffs’ response in
opposition (DE 73). In their motion, Defendants ask the Court to strike nine
witnesses, both expert and lay, identified in Plaintiffs’ supplemental witness list
(DE 57) as untimely. Specifically, Defendants assert that nine of the witnesses
identified in the supplemental witness list1 were not identified until July 7, 2016,

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The witnesses at issue are: 1) David Williams, COO of the Michigan Humane
Society; 2) Matthew Pepper, CEO of the Michigan Humane Society; 3) Becky
Neal, President of the Michigan Association of Animal Control Officers; 4)
Jennifer Clark, employee of Dog-Aide; 5) Kim Craig, of WXYZ-TV; 6) Shawn
Waeghe; 7) Kristina Rinaldi, of the Detroit Dog Rescue; 8) Terrence MacKillop;
and 9) Dr. Kristina Yee. Mr. MacKillp and Dr. Yee are explicitly identified as

“well after the deadlines in the Court’s Scheduling Order (DE 23),” which includes
a deadline for filing witness lists of April 1, 2016. (DE 23.) The supplemental
witness list at issue was filed on July 7, 2016. (DE 57.)

(DE 59 at 2, ¶¶ 5-6.)

Defendants also ask the Court to award reasonable costs and attorney fees for the
expenses associated with filing the instant motion.
Plaintiffs counter that the first supplemental witness list was timely filed for
several reasons. First, they assert that pursuant to the scheduling order, expert
witnesses were not required to be disclosed until 90 days before the November 1,
2016 trial, or August 3, 2016 (the day on which the experts were identified).
Second, they contend that the supplemental witness list merely identifies the
specific employees/agents of organizations that they have previously provided to
Defendants. Finally, they assert that the remaining three witnesses were only
recently identified in discovery from a third party. Plaintiffs also ask the Court to
award reasonable costs and attorney fees for the expense of responding to
Defendants’ motion.
II.

STANDARD
Federal Rule of Civil Procedure 26 provides the procedures and timeline for

identifying potential witnesses. If a party wishes to use a witness as an expert, the
party must disclose the identity of the witness, accompanied by a “written report—

expert witnesses. (DE 57 at ¶¶ 94 and 95.) Mr. Williams, Mr. Pepper, and Ms.
Neal are identified as potential expert witnesses. (Id. at ¶¶ 37, 38, and 40.)

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prepared and signed by the witness . . . .” Fed. R. Civ. P. 26(a)(2)(b). The expert
witness must be identified “at the times and in the sequence that the court orders.”
Fed. R. Civ. P. 26(a)(2)(D). If the court does not order a specific timeframe, the
disclosures must be made “at least 90 days before the date set for trial,” or “if the
evidence is intended solely to contradict or rebut evidence . . . within 30 days after
the other party’s disclosure.” Id. Further, both parties must supplement their
disclosures in compliance with Rule 26(e). Fed. R. Civ. P. 26(a)(2)(E).
Parties must also disclose the identity of lay witnesses, along with their
designation and a description of the evidence they may present. Fed. R. Civ. P.
26(a)(3). These disclosures must be made at least 30 days before trial, “[u]nless
the court orders otherwise.” Id.
“If a party fails to . . . identify a witness . . . the party is not allowed to use
that . . . 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). This
does not require that the moving party show prejudice, “rather, the burden is on the
non-moving party to show that the non-disclosure was harmless or substantially
justified.” SPX Corp. v. Bartec USA, LLC, 574 F. Supp. 2d 748, 757 (E.D. Mich.
2008) (citing Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., 388 F.
3d 976, 983 (6th Cir. 2004) and Samos Imex Corp. v. Nextel Commc’ns, Inc., 194
F.3d 301, 305 (1st Cir. 1999)).

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III.

ANALYIS
A.

Expert Witnesses MacKillop and Yee

The Court issued a scheduling order in this action on February 17, 2016.
(DE 23.) The scheduling order explicitly states that the “time limit for disclosure
of expert testimony contained in Rule 26(a)(2) is to be followed according to the
trial date set by the Court.” (Id. at ¶ III.) The order set the trial date as November
1, 2016.
As set forth above, Rule 26(a)(2) provides that a party must disclose the
identity of its experts (among other specified information), “at least 90 days before
the date set for trial or for the case to be ready for trial[.]” Fed. R. Civ. P.
26(a)(2)(D)(ii). Accordingly, Plaintiffs’ expert witness disclosures were not due
until August 3, 2016. Although Defendants assert in their motion, filed on July 22,
2016, that Plaintiffs have not provided “a single written report” from the expert
witnesses, Plaintiffs provided the complete disclosures for Dr. Yee and Mr.
MacKillp on August 3, 2016. (See DE 73-8.)2 As Plaintiffs timely submitted their
expert disclosures in accordance with Rule 26(a)(2) on August 3, 2016, there is no

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However, as to the individuals identified by Plaintiffs as “potential” expert
witnesses, Mr. Williams, Mr. Pepper, and Ms. Neal, there is no indication that the
full and complete disclosures were timely made. To the extent Plaintiffs plan to
use those individuals as expert witnesses, disclosures must have been submitted to
Defendants on or before August 3, 2016. If this was not done, those witnesses
cannot testify as experts.  

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reason to strike those experts from the witness list filed on July 7, 2016.
Accordingly, Defendants’ motion is DENIED with respect to expert witnesses Dr.
Yee and Mr. MacKillop.
B.

Williams, Pepper, Neal, and Clark

Plaintiffs timely filed their initial disclosures on March 16, 2016, identifying
the following individuals likely to have discoverable evidence: 1) agents or
employees of the Michigan Humane Society (DE 73-2 at ¶ 37) and 2) agents or
employees of the Michigan Association of Animal Control Officers (Id. at ¶ 38).
Thereafter, on April 1, 2016, Plaintiffs filed their initial witness list, again
identifying agents or employees of the Michigan Humane Society (DE 35 at ¶ 36);
agents or employees of the Michigan Association of Animal Control Officers (Id.
at ¶ 37); in addition to agents or employees of Dog-Aide (Id. at 39).
In their supplemental witness list, Plaintiffs name as witnesses employees or
agents from the Michigan Humane Society (Williams and Pepper), the Michigan
Association of Animal Control Officers (Neal), and Dog Aide (Clark). (DE 57 at
¶¶ 37, 38, 40, and 43.) Defendants assert that the individuals identified in the
supplemental witness list were untimely because they had never before been
named, discovery has ended, and dispositive motions have been filed with the
Court. Plaintiffs counter that Defendants were aware that agents or employees of
the three organizations named above would be called as witnesses, and the specific

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names of those agents was merely information that should be supplemented prior
to trial.
Plaintiffs rely on Lower Town Project, LLC v. Lawyers Title Ins. Corp., No.
10-11615, 2012 WL 666574, at *2 (E.D. Mich. Feb. 29, 2012). In Lower Town,
the third-party plaintiffs identified “[p]ast and present employees and agents of
Lower Town Project, LLC” as witnesses, but did not name the specific employee
until the joint final pretrial order. Id. The Court concluded that such a designation
(in addition to the fact that the employee was a known representative of Lower
Town) was sufficient to inform the third-party defendants such that there was no
duty to supplement pursuant to Fed. R. Civ. P. 26(e). In the alternative, the Court
noted that, even if the third-party plaintiffs were required to provide the
information at an earlier time, any failure to do so was harmless because the thirdparty defendants “knew that Third-Party Plaintiffs intended to call a Lower Town
Project representative at trial, had information that Mr. Hinds was likely to be that
representative, and had an opportunity to depose Mr. Hinds during discovery.” Id.
This case is somewhat distinguishable, given that it is unclear whether
Williams, Pepper, Neal, and Clark were known to Defendants as employees or
agents of their respective organizations. However, Defendants were clearly aware,
beginning on April 1, 2016, that Plaintiffs intended to call witnesses from these
organizations. (DE 35.) Further, Plaintiffs have not used affidavits from these

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witnesses in their response to Defendants’ pending motion for summary judgment.
As such, any potential prejudice to Defendants can be eradicated by allowing them
time to depose these witnesses prior to the final pretrial conference, which is
scheduled for October 25, 2016. Accordingly, I conclude that Plaintiffs properly
identified these witnesses such that they are entitled to use their testimony at trial,
provided that Defendants may (if they so choose) depose these witnesses before
October 1, 2016. See Am. Furukawa, Inc. v. Hossain, No. 14-cv-13633, 2016 WL
2731185, at *1 (E.D. Mich. May 11, 2016) (finding no prejudice where the moving
party failed to pursue discovery or seek leave to conduct depositions outside of the
discovery deadline); Cotton v. Sassak, No. 06-cv-15208, 2008 WL 1882708, at *2
(E.D. Mich. Apr. 24, 2008) (finding the severe punishment of striking a witness list
was inappropriate where the moving party could have discovered the substance of
the witnesses’ testimony).
C.

Craig, Waeghe, and Rinaldi

Finally, Plaintiffs assert that their failure to identify witnesses Craig,
Waeghe, and Rinaldi by the April 1, 2016 deadline was substantially justified
because

they

were

not

informed

about

the

existence

of

th

ese individuals until May 20, 2016. Specifically, Plaintiffs received a response to
their subpoena from the Michigan Department of Agriculture and Rural
Development on May 20, 2016, identifying Craig, Waeghe, and Rinaldi as

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individuals who had previously complained about Detroit Animal Control. (DE
73-4.) As such, Plaintiffs assert that their failure to identify these witnesses until
July 7, 2016 (after both the April 1, 2016 deadline for identifying witnesses and the
June 1, 2016 discovery deadline) was substantially justified and harmless.
However, Plaintiffs do not provide any justification as to why the names were not
provided to Defendants before July 7, 2016. Presumably, the names could have
been provided sometime between their receipt on May 20, 2016 and the discovery
deadline on June 1, 2016. Nor is there any indication that Defendants were aware
of these individuals in some way prior to their disclosure by Plaintiffs.
Accordingly, I conclude that there is no substantial justification for failing to
provide the names until after the close of discovery. Moreover, allowing Plaintiffs
to call these witnesses would prejudice Defendants, who could have had an
opportunity to conduct additional discovery as it relates to these individuals before
filing their motion for summary judgment.

As such, Defendants’ motion is

GRANTED with respect to Craig, Waeghe, and Rinaldi.
IV.

CONCLUSION
Accordingly, Defendants’ motion to strike is granted in part and denied in

part. Specifically, the Court will not strike the following witnesses identified in
Plaintiffs’ supplemental witness list: MacKillop, Yee, Williams, Pepper, Neal, and
Clark. The Court will strike witnesses Craig, Waeghe, and Rinaldi. Further, the

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Court declines to award attorney fees or costs in this matter pursuant to Federal
Rule of Civil Procedure 37(a)(5)(C), finding that both parties’ positions on this
matter were substantially justified. Finally, this case is scheduled for hearing on
September 13, 2016 for a variety of matters, one of which was to be the instant
motion. (DE 70.) Because this motion has been decided on the papers, it will not
be heard at the September 13 hearing.
IT IS SO ORDERED.

Dated: August 31, 2016

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on August 31, 2016, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Pattie

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