50820 Schoenherr Road (FJ) Associates, LLC, a foreign corporation v. Family Fare, LLC, a Michigan limited liability company et al
ORDER Denying Plaintiff's 25 Motion for Reconsideration and Denying Plaintiff's 26 Motion for Leave to Serve Supplemental Expert Disclosures. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
50820 Schoenherr Road (FJ)
Case No. 17-10741
Judith E. Levy
United States District Judge
Family Fare, LLC, and
SpartanNash Company, d/b/a
Spartan Stores, Inc.,
Mag. Judge David R. Grand
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION  AND DENYING PLAINTIFF’S
MOTION FOR LEAVE TO SERVE SUPPLEMENTAL EXPERT
Before the Court are plaintiff’s motion for reconsideration of the
opinion and order granting defendants’ motion to strike experts (Dkt.
25) and plaintiff’s motion for leave to serve supplemental expert
disclosures (Dkt. 26).
For the reasons set forth more fully below,
plaintiff’s motions are DENIED.
An extensive background and procedural history for this case is
summarized in the Court’s December 20, 2017 opinion and order
granting defendant’s motion to strike experts. (Dkt. 22 at 2–5.) That
history is incorporated herein in its entirety. For emphasis, the Court
reiterates the following key facts:
(1) The initial deadline for expert disclosures and reports was set
for September 15, 2017 (Dkt. 11 at 11);
(2) Defendants notified the court of alleged deficiencies in
plaintiff’s expert disclosures and reports on September 22, 2017
(3) Following a status conference held on October 11, 2017,1 the
court issued an amended scheduling order which granted plaintiff
an extension of more than six weeks beyond the initial deadline to
submit rules-compliant expert disclosures and reports;
(4) Plaintiff, via email to the Court, informally requested an
additional two-week extension for the expert disclosure and report
deadline on October 26, 2017;
(5) The Court’s case manager informed plaintiff that a request for
a further extension would need to be set forth in a motion, which
plaintiff did not file (Dkt. 18 at 17); and
During the Status Conference, the Court emphasized its conclusion that the expert
reports did not meet the expectations set forth in the Rules of Civil Procedure, that
it took very seriously plaintiff’s failure to provide timely compliant reports, and that
it was – grudgingly – willing to extend the deadline for plaintiff a single time only.
Plaintiff’s attorney affirmed her understanding of the Court’s conclusions.
(6) After receiving plaintiff’s updated expert disclosures and
reports on October 31, 2017, defendants filed a motion alleging
that the proffered reports continued to fail to comply with the
requirements of Fed. R. Civ. P. 26(a)(2)(B) and seeking an order
under Fed. R. Civ. P. 37(c) precluding plaintiff from using the
On December 20, 2017, the Court issued an opinion and order
granting defendants’ motion “striking the reports of plaintiff’s experts
and precluding them from testifying pursuant to Fed. R. Civ. P. 37(c).”
(Dkt. 22 at 1.) Defendants argued that the two expert reports proffered
by plaintiff failed to meet the requirements of Fed. R. Civ. P. 26(a) –
particularly the requirements that expert reports “must contain: (i) a
complete statement of all opinions the witness will express and the
basis for them; (ii) the facts or data considered by the witness in
forming them; [and] (iii) any exhibits that will be used to summarize or
The Court reviewed both of the proffered reports and concluded
that each failed to meet the requirements of Fed. R. Civ. P. 26(a).
Specifically, the Court concluded that the first report, proffered in
support of an expert opinion “regarding the market rental rate of the
subject property as of September 17, 2015” contained none of the
required facts or data considered by the witness in forming his opinion.
(Dkt. 22 at 6.) The Court concluded that the second report, proffered in
support of an expert opinion regarding “the alleged damages and cost of
repairs to the [p]remises” lacked the required facts or data to support
an expert opinion regarding the cost of repairs to the premises. (Id. at
The Court also noted that Fed. R. Civ. P. 37(c)(1) “mandates that a
trial court punish a party for discovery violations in connection with
Rule 26 unless the violation was harmless or substantially justified.”
(Id.) (quoting R.C. Olmstead Inc., v. CU Interface, LLC, 606 F.3d 262,
271 (6th Cir. 2010)) and that “[t]he burden falls on the potentially
sanctioned party to prove harmlessness.” (Dkt. 22 at 7) (citing Roberts
v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003)).
To prevail on a motion for reconsideration under Local Rule 7.1, a
movant must “not only demonstrate a palpable defect by which the
court and the parties and other persons entitled to be heard on the
motion have been misled but also show that correcting the defect will
result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). “A
palpable defect is a defect that is obvious, clear, unmistakable, manifest
or plain.” Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997).
The “palpable defect” standard is consistent with the standard for
amending or altering a judgment under Fed. R. Civ. P. 59(e).
Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir.
Motions for reconsideration should not be granted if they “merely
present the same issues ruled upon by the court, either expressly or by
reasonable implication.” E.D. Mich. LR 7.1(h)(3). And “parties cannot
use a motion for reconsideration to raise new legal arguments that
could have been raised before a judgment was issued.” Roger Miller
Music, Inc. v. Sony/ATV Publ’g, 477 F.3d 383, 395 (6th Cir. 2007).
Plaintiff first asks the court to reconsider its decision to strike its
two proffered expert reports. (Dkt. 25.) In so doing, however, plaintiff
fails to identify a “palpable defect” that “will result in a different
disposition of the case.” Instead, plaintiff seeks to relitigate the issues
of whether the proffered reports meet the requirements of Fed. R. Civ.
P. 26(a) and whether the failure of the reports to meet those
requirements was harmless.
Because the content of the proffered reports has not changed, the
Court maintains its prior conclusion that the reports do not provide the
information required by Fed. R. Civ. P. 26(a), for the reasons stated in
the initial order.
The question plaintiff is requesting the Court to
reconsider is whether it was correct in its issuing of sanctions under
Fed. R. Civ. P. 37(c) – turning, therefore, on the question of whether the
discovery violations were justified and/or harmless.
In its reply to defendant’s underlying motion to strike, plaintiff
made no argument regarding whether the discovery violations were
justified or harmless, and the Court concluded that plaintiff had failed
to meet its burden to so prove. (Dkt. 22 at 8.) Plaintiff now argues that
the violations are harmless because (1) defendants provided a response
to the report that plaintiff produced; and (2) the failure was inadvertent
and can be cured because discovery is still ongoing. (Dkt. 25 at 9–10.)
The Court need not entertain plaintiff’s new arguments.2
Nonetheless, whether the Court considers the plaintiff’s arguments as
having been waived by failing to raise them earlier or considers them on
the merits, its conclusion is the same.
Plaintiff’s failure to timely
provide rules-compliant expert reports is neither justified nor harmless.
With respect to the question of whether the discovery violations
were justified or harmless, the Court considers five factors: “(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.” Howe v. City of Akron, 801 F.3d 718, 748 (6th
It is undisputed that defendant has been in possession of a version
of one of plaintiff’s proffered expert reports since before the litigation
commenced, and that defendant has obtained its own expert report to
respond to the information contained within the proffered report. The
“It is well-settled that ‘parties cannot use a motion for reconsideration to raise new
legal arguments that could have been raised before a judgment was issued.” Bank
of Ann Arbor v. Everest Nat. Ins. Co., 563 Fed. Appx. 473 (6th Cir. 2014) (quoting
Roger Miller Music, Inc., v. Sony/ATV Publ’g, 477 F.3d 383, 395 (6th Cir. 2007)).
Court is therefore not persuaded that the factors related to surprise or
disruption of the trial weigh in favor of excluding the experts or their
It is also undisputed that plaintiff’s theory of the case is
centered on the cost of repairing alleged damages to the building and
the alleged below-market rental rate at which the property was leased
because of the building’s condition.
The Court does not doubt that
plaintiff’s reports related to those matters are important to the case.
However, the Court is persuaded that plaintiff’s complete lack of any
justification for the ongoing deficiencies in the report unquestionably
tips the balance in favor of excluding the experts’ testimony and
At the October 11, 2017 Status Conference, during which the
deficiencies in plaintiff’s expert reports and disclosures were a
significant topic of conversation, the Court made clear that it was
willing to grant one – and only one – opportunity beyond the original
scheduled deadline for plaintiff to produce rules-compliant reports.
Plaintiff filed expert disclosures and reports on the extended deadline,
and – in response to defendants’ motion to strike – the Court concluded
that the reports were still non-compliant. Plaintiff has never attempted
to justify its inability to procure the information required by the Federal
Rules in a timely manner, and as a result, the Court continues to
conclude that striking the non-compliant expert reports is the
appropriate sanction under Fed. R. Civ. P. 37(c).
Plaintiff now asks, in addition to asking the Court to reconsider
its conclusion to permit the inclusion of the non-compliant expert
testimony and reports, for the Court to grant leave for plaintiff to
further amend the reports to bring them into compliance. The Court
understands this to be yet another request from the plaintiff to extend
the expert disclosure and report deadline in order for plaintiff to comply
with Fed. R. Civ. P. 26(a). Given that the Court has already extended
the deadline once, it declines to condone yet another “free violation” of
the Federal Rules. See R.C. Olmstead, Inc. v. CU Interface, LLC, 608
F.3d 262, 277 (6th Cir. 2010) (Kethledge, J., concurring).
Plaintiff will not be permitted to offer the expert testimony or
reports of Mr. Krentler or Mr. Laskowski as evidence on a motion, at a
hearing, or at trial.
Subject to the rules regarding authentication,
Plaintiff is permitted to use the photographs contained within Mr.
Laskowski’s report for any purpose permitted by the Federal Rules of
reconsideration (Dkt. 25) and plaintiff’s motion for leave to amend
expert disclosures (Dkt. 26) are DENIED.
IT IS SO ORDERED.
Dated: January 8, 2018
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 8, 2018.
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