Capital Promotions, L.L.C. v. Don King Productions, Inc.
Filing
64
OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Strike Plaintiffs Expert Witnesses [ECF No. 29] is DENIED without prejudice.IT IS FURTHER ORDERED that the Clerk of Court shall term and correct the docket entry for ECF No. 34, which should read Plaintiffs Resistanceto Defendants Motion to Strike Witnesses and Daubert Motion to Exclude ExpertTestimony and Opinions (in relation to ECF No. 29). IT IS FURTHER ORDERED that Defendants Motion to Strike Plaintiffs Exhibits [ECF No. 53] is GRANTED and that Exhibits 4, 5, 6 (pages 9-15), 11 (pages 4-13), 18 (pages 5-15), 20, 26, 27, 29, 33, 34, 38, and 41 are STRICKEN from the record. 53 34 29 Signed by Honorable Henry E. Autrey on 3/31/12. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CAPITAL PROMOTIONS, L.L.C.,
Plaintiff,
v.
DON KING PRODUCTIONS, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
No. 4:10-CV-48-HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the following motions: (1) Defendant’s
Motion to Strike Plaintiff’s Expert Witnesses [ECF No. 29]; and (2) Defendant’s
Motion to Strike Plaintiff’s Exhibits [ECF No. 53]. For the reasons set forth
below, the Court will deny defendant’s motion to strike expert witnesses and will
grant its motion to strike certain exhibits that plaintiff attached to its resistance to
defendant’s motion for summary judgment.
Background
Capital Promotions, LLC (“Capital”) filed this action against Don King
Productions, Inc. (“DKP”) on January 12, 2010, alleging intentional interference
with contractual relationships, fraud, conspiracy to interfere with contractual
relationships, and prima facie tort relative to an agreement between DKP and
Walter Tyeson Fields (“Fields”) for a bout between Fields and Ray Lunsford in St.
Louis, Missouri, on February 5, 2005. Capital contends that it had a Promotional
Rights Agreement with Fields, of which DKP was aware, providing Capital with
exclusive rights to promote all fights for Fields.
On December 16, 2010, this Court entered an Amended Case Management
Order [ECF No. 22], stipulating that the parties were to make all disclosures
required by Rule 26(a)(1) of the Federal Rules of Civil Procedure no later than
July 12, 2010, and that motions for summary judgment were to be filed no later
than July 15, 2011.
Defendant’s Motion to Strike Experts
On April 18, 2011, defendant filed a motion to strike three of plaintiff’s
expert witnesses [ECF No. 29]: Nate Boyd, Joseph DeGuardia, and Joe Grier.
Defendant argues that plaintiff failed to comply with Rule 26(a)(2)(B) of the
Federal Rules of Civil Procedure, and that the witnesses’ testimony does not meet
the requirements of Rule 702 of the Federal Rules of Evidence and should be
deemed unreliable under Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579
(1993). On May 13, 2011, plaintiff filed its resistance to defendant’s motion [ECF
No. 34], arguing it had complied with Rule 26, striking the witnesses would be an
inappropriate sanction, neither Grier nor DeGuardia is a professional witness, and
Grier and DeGuardia’s opinions are both admissible and relevant to the issue of
2
damages. Defendant filed a reply [ECF No. 35], reasserting its initial claims and
taking issue with what damages are relevant in this case.
Having carefully reviewed the arguments advanced on behalf of both
parties, the Court will deny without prejudice defendant’s motion to strike
plaintiff’s expert witnesses. At this point, it is unclear if Nate Boyd, Joseph
DeGuardia, and/or Joe Grier will be testifying as experts, and this issue, no doubt,
will be raised just prior to trial, at which time the Court will be better able to make
a final determination based upon the entire pretrial record. If these individuals are
found to be expert witnesses, and if plaintiff failed to comply with Rule 26, their
expert testimony will be barred.
Defendant’s Motion to Strike Exhibits
On July 15, 2011, defendant filed a motion for summary judgment [ECF No.
39]. On August 15, 2011, plaintiff filed a memorandum in opposition [ECF No.
45], as well as a statement of facts in support thereof and forty attached exhibits
[ECF No. 46].1 On September 1, 2011, defendant filed a motion to strike thirteen
of the exhibits, in whole or in part, that were attached to and referenced in
1
The Court notes that the Exhibits are numbered in order, with the exception that there is
no Exhibit 10. The Court is assuming that all of defendant’s references to the Exhibits were
made in accordance with how plaintiff originally labeled them, not how they were subsequently
docketed by the Clerk of Court.
3
plaintiff’s statement of facts, to wit: Exhibits 4, 5, 6 (pages 9-15), 11 (pages 4-13),
18 (pages 5-15), 20, 26, 27, 29, 33, 34, 38, and 41.2 Defendant contends that all
said exhibits were either required to have been previously disclosed under Rule
26(a)(1) of the Federal Rules of Civil Procedure or in response to its request for
production of document propounded on July 10, 2010 [ECF No. 53-1, pages 1-8].
Defendant further asserts that it first saw these documents when plaintiff attached
them to its filing on August 15. Defendant asserts that because plaintiff failed to
disclose these documents or to supplement both its Rule 26(a)(1) disclosures and
its responses to defendant’s request for production of documents, plaintiff is in
violation of Rule 26(e) and is subject to sanctions under Rule 37(c)(1) of the
Federal Rules of Civil Procedure. Defendant requests that the Court strike all of
the above-referenced Exhibits. Plaintiff opposes the motion, arguing that none of
the documents were deliberately withheld, and defendant was well aware of the
difficulties involved with discovery in this case due to numerous other court
proceedings that did not involve counsel in this case.
2
The Exhibits include contractual documents, state court filings, documents concerning
plaintiff’s contention that its contract with Fields was broken due to interference, affidavits
concerning alleged interference with plaintiff’s promotion of Fields and resulting damage, and
documents regarding plaintiff’s promotion and co-promotion of Fields.
4
Rule 37(c)(1) states, in pertinent part:
Failure to Disclose or Supplement. 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.
Plaintiff does not dispute that it was required to produce the above-mentioned
Exhibits in a timely fashion. Indeed, the Federal Rules of Civil Procedure, as well
as the Court’s own case management order, are designed to ensure full and timely
disclosure of such documents. Moreover, it is clear that defendant was prejudiced
by the late disclosure of these documents. Defendant prepared its motion for
summary judgment based upon a certain set of known facts, only to be “surprised”
by the late disclosure of thirteen exhibits that it had previously sought from
plaintiff. The Court finds that plaintiff’s failure to disclose the said Exhibits is
without substantial justification, that the failure is not harmless, and that striking
these Exhibits from the record does not run afoul of the Eighth Circuit Court of
Appeal’s ruling in Heartland Bank v. Heartland Home Finance, Inc., 335 F.3d
810 (8th Cir. 2003). As such, Exhibits 4, 5, 6 (pages 9-15), 11 (pages 4-13), 18
(pages 5-15), 20, 26, 27, 29, 33, 34, 38, and 41 will be stricken from the record.
Accordingly,
5
IT IS HEREBY ORDERED that Defendant’s Motion to Strike Plaintiff’s
Expert Witnesses [ECF No. 29] is DENIED without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall term and
correct the docket entry for ECF No. 34, which should read “Plaintiff’s Resistance
to Defendant’s Motion to Strike Witnesses and Daubert Motion to Exclude Expert
Testimony and Opinions” (in relation to ECF No. 29).
IT IS FURTHER ORDERED that Defendant’s Motion to Strike Plaintiff’s
Exhibits [ECF No. 53] is GRANTED and that Exhibits 4, 5, 6 (pages 9-15), 11
(pages 4-13), 18 (pages 5-15), 20, 26, 27, 29, 33, 34, 38, and 41 are STRICKEN
from the record.
Dated this 31st day of March, 2012.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?