Green v. Logan's Roadhouse, Inc. et al

Filing 80

ORDER denying Defendant's 67 Motion to Strike the affidavit of Philip Ben Prater. Signed by District Judge Keith Starrett on December 3, 2014 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
PHILLIPPI GREEN

PLAINTIFF

V.

CIVIL ACTION NO. 2:13-CV-238-KS-MTP

LOGAN’S ROADHOUSE, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court denies Defendant’s Motion to Strike
[67] the affidavit [63-7] of Philip Ben Prater.
This is a premises liability case arising from a third-party assault in Defendant’s
restaurant. Plaintiff was a customer in the restaurant, and he alleges that another
customer, Philip Ben Prater, verbally and physically assaulted him. Defendant filed
a Motion for Summary Judgment [58]. In support of his Response [63] to the motion,
Plaintiff provided an affidavit [63-7] from Prater, his alleged assailant. Defendant filed
a Motion to Strike [67] the affidavit because Plaintiff failed to list Prater as a potential
witness in his Rule 26 disclosures.
Rule 26 provides: “[A] party must, without awaiting a discovery request, provide
to the other parties . . . a copy . . . of all documents . . . that the disclosing party has in
its possession, custody, or control and may use to support its claims or defenses . . . .”
FED. R. CIV. P. 26(a)(1)(A)(ii). “A party who has made a disclosure . . . or who has
responded to an interrogatory, [or] request for production . . . must supplement or
correct its disclosure or response . . . in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete or incorrect, and if the

additional or corrective information has not otherwise been made known to the other
parties during the discovery process or in writing . . . .” FED. R. CIV. P. 26(e)(1)(A)
(emphasis added).
The record contains a variety of evidence demonstrating that Prater’s identity
and alleged role in the events leading to this lawsuit was “otherwise . . . made known”
to Defendant “during the discovery process . . . .” Id.
•

On December 20, 2013, Defendant included Prater in its initial
disclosures [71-1], provided his address, and represented that he
was “believed to have knowledge concerning . . . the altercation
between himself and Plaintiff.”

•

On February 10, 2014, Defendant obtained a subpoena [71-5] for
Prater to testify at a deposition.

•

In its interrogatory responses on February 25, 2014, Defendant
identified Prater as a potential witness [71-7], and it provided his
address and phone number.

•

Plaintiff produced his expert’s report to Defendant on August 8,
2014, and the report included multiple references to Prater [42, 718].

•

Defendant produced its expert’s report to Plaintiff on September
5, 2014, and the report included multiple references to Prater [51,
71-11].

•

During his deposition [71-12] on September 19, 2014, Defendant’s
expert repeatedly referred to Prater and his involvement in the
events leading to this lawsuit.

It is undisputed, therefore, that Defendant knew Prater’s identity and his alleged role
in the events leading to this lawsuit throughout the entire discovery period. As this
information was made known to Defendant during the discovery process, Plaintiff was
not required to supplement his disclosures. FED. R. CIV. P. 26(e)(1)(A).
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Even if Plaintiff had been required to supplement his disclosures, the Court
would not strike the affidavit. “If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or 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)(1).
When applying Rule 37 and considering sanctions for discovery violations, the Court
considers the following factors: “(1) the explanation for the failure to identify the
witness; (2) the importance of the testimony; (3) potential prejudice in allowing the
testimony; and (4) the availability of a continuance to cure such prejudice.” Hamburger
v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (citing Geiserman
v. McDonald, 893 F.2d 787, 790 (5th Cir. 1990)). The Court “should impose only that
sanction which is the least severe way to effect compliance with the court’s discovery
orders,” United States v. Garza, 448 F.3d 294, 300 (5th Cir. 2006), and it has “broad
discretion” in formulating such sanctions. Barrett v. Atlantic Richfield Co., 95 F.3d 375,
380 (5th Cir. 1996).
Plaintiff provided no reason for his failure to include Prater in his list of
potential witnesses. However, Prater’s testimony is very important insofar as he was
one of the key participants in the events which led to this lawsuit. This is a premises
liability case arising from an alleged third-party assault, and Prater was the alleged
assailant. Allowing his testimony would not prejudice Defendant in the slightest
because they have been aware of his identity and involvement for the entire discovery
period. Therefore, even if Plaintiff had been required to supplement his disclosures and
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list Prater as a potential witness, the Court would not strike the affidavit.
For these reasons, the Court denies Defendant’s Motion to Strike [67] the
affidavit [63-7] of Philip Ben Prater.
SO ORDERED AND ADJUDGED this 3rd day of December, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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