Kirk v. Schaeffler Group USA, Inc. et al
ORDER granting in part and denying in part Plaintiff's motion to strike 586 . Signed on March 24, 2017, by Chief District Judge Greg Kays. (Law clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
JODELLE L. KIRK,
SCHAEFFLER GROUP USA, INC., and
FAG BEARINGS, LLC,
ORDER GRANTING IN PART MOTION TO STRIKE ARGUMENT
Now before the Court is Plaintiff’s Motion to Strike New Argument in Defendants’
Response Brief Regarding Order Granting in Part Motion for Reconsideration (Doc. 586). For
the following reasons, the motion is GRANTED IN PART.
The events preceding this motion are as follows. The Court previously issued an order
(“the Order”) (Doc. 569) reconsidering a portion of an earlier order imposing sanctions on
Plaintiff’s counsel for discovery violations. The Order directed the parties to file a brief and a
reply addressing three questions:
(1) what is an appropriate sanction for the Rule 26(e)
violations in this case; (2) who should be sanctioned—Plaintiff, her counsel, or both; and (3)
what is the appropriate source of the Court’s power to sanction the violations here. With respect
to the third question, the Order specifically directed the parties to submit briefs concerning the
Court’s power to impose sanctions under Rule 37(c), Rule 26(g), or the Court’s inherent
authority. But the Order failed to identify a fourth potential source of authority, Rule 16. The
Order also instructed the parties not to brief any other issues. The Court included this directive
because it did not want the parties to re-litigate whether Plaintiff violated Rule 26(e). 1
Defendants subsequently filed their initial brief (Doc. 577-1) and their reply (Doc. 582).
Both briefs argued that under Rule 16, the Court must impose sanctions if a party or its attorney
fails to obey a scheduling order unless the noncompliance was substantially justified or other
circumstances make an award of expenses unjust.
Plaintiff filed her initial brief (Doc. 576) and a reply (Doc. 583). Neither discussed Rule
16. She then filed the pending motion arguing Defendants violated the Order. For relief,
Plaintiff requests the Court strike the Rule 16 argument and hold an evidentiary hearing.
Plaintiff writes that as it stands now, she and her counsel “have been denied an opportunity to be
heard on Rule 16. Even if this section is struck from Defendants’ brief, however, the only way
to guarantee a full and fair opportunity [to be heard] in light of the severe sanctions sought is to
grant an evidentiary hearing.” Pl.’s Br. at 3.
The Court rules as follows. With the benefit of hindsight, the Court notes it erred in
directing the parties to limit their argument to the Court’s ability to impose sanctions under Rule
37(c), Rule 26(g), or its inherent authority. The Court meant to solicit the parties’ views as to
any source of authority under which the Court might impose sanctions. Unfortunately, its Order
did not say that.
Thus, strictly speaking, Plaintiff is correct: Defendants’ Rule 16 argument violated the
Order. The Court writes “strictly speaking” though, because while Defendants’ violated the
letter of the Order, they did not violate its spirit. Defendants’ observation that Rule 16 might
apply here is a valid one.
The Court previously ruled Plaintiff “patently violated Rule 26(e) by failing to identify additional theories of
exposure and nineteen specific locations of exposure until after the close of discovery.” Order Granting in Part
Motion for Sanctions at 11 (Doc. 231).
So the question is, what should the Court do to cure any unfairness here? Striking the
argument as Plaintiff suggests is problematic because Defendants have cited a possibly
applicable rule, and it would be difficult or unfair for the Court to ignore that rule simply because
it failed to cite it in the Order. 2 A better solution is to allow both parties to thoroughly brief the
issue, so that each side has an ample opportunity to be heard.
As for Plaintiff’s request for an evidentiary hearing, it is denied. The question before the
Court is essentially a legal one, whether Rule 16 possibly applies here. An evidentiary hearing
would serve no useful purpose. If Plaintiff believes there is a disputed question of fact related to
this legal question, she can attach an affidavit to her initial brief.
Thus, Plaintiff’s motion is GRANTED IN PART. Plaintiff may file a brief on or before
April 7, 2017, responding to Defendants’ argument that Rule 16 “authorizes the Court to impose
sanctions against Plaintiff’s counsel.” Defs.’ Br. at 6. This brief shall not exceed five pages. If
Plaintiff files such a brief, Defendants shall have until April 21, 2017, to file a response which
shall not exceed five pages. If Defendants file a response, Plaintiff shall have until May 5, 2017,
to file a reply brief which shall not exceed three pages. All of the parties’ briefing shall not
incorporate any argument by reference; all argument must be contained within the four corners
of the brief.
IT IS SO ORDERED.
Date: March 24, 2017
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
This is particularly true since the Rule states “the court must order the party, its attorney, or both to pay the
reasonable expenses—including attorney’s fees—incurred because of any noncompliance with this rule unless the
noncompliance was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ.
P. 16(f)(2) (emphasis added).
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