Bumbales et al v. City of Vandalia, Missouri et al

Filing 101

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion to Strike Summary Judgment Exhibits (ECF No. 96 ) is GRANTED. Plaintiffs' Exhibits 16, 17, 22, 25, and 26 are hereby stricken from the record. Signed by Magistrate Judge John M. Bodenhausen on 7/28/20. (ARL)

Case: 2:18-cv-00013-JMB Doc. #: 101 Filed: 07/28/20 Page: 1 of 4 PageID #: 1314

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
WILLIAM PARKER, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
CITY OF VANDDALIA, MISSOURI, et al.,
Defendants.

No. 2:18 CV 13 JMB

MEMORANDUM AND ORDER
This matter is before the Court on Defendants City of Vandalia, Missouri, Christopher
Hammann, Gabriel Jennings, Robert Dunn, John Weiser, Dempsey Dixon, Ralph Kuda, Deborah
Hopke, Raymond Barnes, Janet Turner, Teresa Wenzel, Donald Elkins, and W. Alan Winders'
("Defendants") Motion to Strike Summary Judgment Exhibits. (ECF No. 96) Plaintiffs William
Parker and William Jones ("Plaintiffs") filed a responsive pleading thereto (ECF No. 99)1 and
Defendants filed a reply. (ECF No. 100)
Defendants move for an order striking Plaintiffs' Exhibits 16, 17, 22, 25, and 26 from the
record, asserting that Plaintiffs failed to disclose the documents and to identify individuals who

1

Although Plaintiffs filed their untimely response to Defendants' motion to strike without
seeking leave to file, the Court finds the possibility of prejudice to Defendants is minimal as their
response was filed five days out of time. See E.D. Mo. L.R. 4.01(B) ("Except as otherwise
provided in these rules or by order of the Court, each party opposing a motion shall file, within
seven (7) days after being served with the motion, a memorandum " in opposition.); Rule 6(d),
Fed.R.Civ.P., Advisory Committee Comments, 2016 Amendments ("[S]ervice by electronic
means under Rule 5(b)(2)(E) [was removed] from the modes of service that allow 3 added days
to act after being served."). This short delay has no adverse impact on the judicial proceedings.
Here, the motion to strike was filed on Monday, June 29, 2020. The seven-day response period
began the next day, Tuesday, June 30. When seven days are counted, excluding the legal holiday
as the last day of the period, the last day of the period is Tuesday, July 7, 2020, and this is the
day Plaintiffs' response was due. See Rule 6(a)(1).
1

Case: 2:18-cv-00013-JMB Doc. #: 101 Filed: 07/28/20 Page: 2 of 4 PageID #: 1315

were not previously disclosed as persons likely to have relevant discoverable information as part
of their Rule 26 Disclosures and/or in response to discovery requests. Exhibit 16 consists of
seventeen emails between Plaintiffs' counsel of record and Defendants' counsel of record
involving the receipt of the policy manual, scheduling a meeting with the city administrator, and
the City of Vandalia's stated reason for Plaintiffs' dismissals. Exhibit 17 is a signed affidavit of
Plaintiffs' counsel of record regarding their June 20, 2017, appeal meeting.2 Exhibit 22 is
another email chain between the prosecuting attorney and Plaintiffs' former counsel of record in
this litigation. Exhibits 25 and 26 are letters, one directed to Plaintiff Parker and the other
directed to Plaintiff Jones, from the Missouri Department of Public Safety dated April 10, 2020.3
Plaintiffs argue in response that Defendants' arguments are disingenuous; Defendants
have suffered no prejudice from their failures; and Defendants are "only trying to erect a
procedural hurdle to avoid a material fact in this case." (ECF No. 99 at 1)
Federal Rule of Civil Procedure 26 imposes various duties on litigants to disclose
information during discovery. Rule 26(a)(1)(A) requires initial disclosure of the name and
subjects of information each individual likely to have discoverable information that may be used
to support a claim or defense. Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) ("When a
party fails to provide information or identify a witness in compliance with Rule 26(a) or (e), the
district court has wide discretion to fashion a remedy or sanction as appropriate for the particular

2

Affidavits by attorneys do not create a genuine issue of material fact. See Exeter
Bancorporation, Inc. v. Kemper Securities Group, Inc., 58 F.3d 1306 (8th Cir. 1995); Postscript
Enterprises v. City of Bridgeton, 905 F.2d 223 (8th Cir. 1990); Devils Lake Sioux Tribe v. State
of N.D., 714 F.Supp. 1019, 1025 (D. N.D. 1989) (holding that counsel's affidavit stating what
opposing party did during prior litigation did not create a genuine issue of material fact).
3

As noted by Defendants, these letters were written almost seven months after the September 16,
2019, discovery completion deadline in this case. (ECF No. 62)
2

Case: 2:18-cv-00013-JMB Doc. #: 101 Filed: 07/28/20 Page: 3 of 4 PageID #: 1316

circumstances of the case."); see, e.g., Vesom v. Atchison Hosp. Assoc., 2006 WL 2714265, at
*6 (D.Kan. Sept. 22, 2006) (striking declarations offered at summary judgment because the
individuals had not previously been disclosed pursuant to Rule 26; the declarations were being
used to support elements of the plaintiff's claim, the court found the failure to disclose was not
harmless, and there was no substantial justification for withholding the information).
Rule 37 provides the consequences for failure to follow these rules. Vanderberg v. Petco
Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018) ("The disclosure mandates in
Rule 26 are given teeth by the threat of sanctions in Rule 37."). The Eighth Circuit has stressed
that "Rule37(c)(1) makes exclusion of evidence the default, self-executing sanction for the
failure to comply with Rule 26(a)." Id. at 705. Further, under Rule 37(c)(1), a party who fails to
provide the information required under Rule 26(a) or (e) is not allowed to use that information at
a trial, at a hearing, or on a motion, unless the failure is substantially justified or harmless.
Whether such failure is substantially justified or harmless depends on factors such as prejudice or
surprise to the opponent; the party's ability to cure the prejudice; the extent to which the
testimony would disrupt the trail; and the moving party's bad faith or willfulness. Rodrick v.
Wal-Mart Stores E., L.P., 666 F.3d 1093, 1096-97 (8th Cir. 2012).
Here, Plaintiffs' failure to produce as part of their Rule 26 Disclosures and/or in response
to discovery requests were neither substantially justified nor harmless. This case has a pending
summary judgment motion and a fast approaching trial date so curing the prejudice at this
juncture would involve several steps including opening discovery and delaying the proceedings.
After careful review of the record, the Court will grant Defendants' motion to strike Exhibits 16,
17, 22, 25, and 26 from the record, and Plaintiffs will be foreclosed from using the exhibits in
opposition to the summary judgment motion and at trial. Accordingly,

3

Case: 2:18-cv-00013-JMB Doc. #: 101 Filed: 07/28/20 Page: 4 of 4 PageID #: 1317

IT IS HEREBY ORDERED that Defendants' Motion to Strike Summary Judgment
Exhibits (ECF No. 96) is GRANTED. Plaintiffs' Exhibits 16, 17, 22, 25, and 26 are hereby
stricken from the record.
Dated this 28th day of July, 2020.
/s/John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

4