Nacy et al v. D.F.C. Enterprises, Inc. et al

Filing 147

ORDER granting 126 plaintiffs' motion in limine and denying 144 defendants' motion for reconsideration. Signed on 3/25/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JAMES NACY, et al.,
Plaintiffs,
v.
D.F.C. ENTERPRISES, INC., et al.,
Defendants.

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) No. 11-0331-CV-W-FJG
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ORDER
Currently pending before the Court is Plaintiffs= Motion in Limine (Doc. # 126) and
Defendants= Motion for Reconsideration (Doc. # 144).
I. Motion in Limine
Plaintiffs filed a Motion in Limine requesting that defendants refrain from offering
evidence, statements, or opinions on the following subject matters: 1) testimony
regarding personnel files and employee handbooks; 2) statements regarding the
settlement terms or references to Mr. Nacy=s attorney during the April 5, 2011
settlement conference; 3) evidence regarding plaintiffs= work history with other
employers; 4) plaintiffs= applications for unemployment benefits; 5) evidence regarding
attorneys Mr. Nacy consulted with prior to filing the present lawsuit or when he retained
counsel; 6) pleas of poverty or claims that D.F.C. Enterprises, Inc. is a small or family
owned business; 7) evidence of good deeds or proper payment of wages to other
employees/ lack of other retaliation complaints and 8) evidence of dismissed claims and
parties.
Defendant filed no response to the Motion in Limine. Accordingly, the Court

hereby GRANTS plaintiffs= Motion in Limine (Doc. # 126). Defendants shall not be
permitted to offer evidence or refer to any of the issues referenced above.
II. Motion for Reconsideration
On March 12, 2013, the Court granted plaintiffs= Motion to Strike Undisclosed
Witnesses From Defendants= Witness List. On March 19, 2013, defendants filed a
Motion for Reconsideration. In the Motion, defendants offered three reasons why the
Court should reconsider granting this motion: 1) Neither party filed supplemental
disclosures; 2) Four of the witnesses were eye witnesses to the activities related to the
discharge of James Nacy and Cole Tumberg and 3) Plaintiffs also added witnesses to
their list who were not disclosed through Rule 26 disclosures.
Defendants state that although they did not file any supplemental disclosures,
neither did the plaintiffs. However, this is incorrect. Plaintiffs state that on March 2,
2012, they provided Rule 26 Supplemental Disclosures to the defendants which related
to their retaliation claims and also an additional document which the plaintiffs received
from the Department of Labor. Plaintiffs state that this supplementation occurred
before the close of discovery and before defendants= depositions of plaintiffs.
Secondly, defendants state that four of the witnesses which were stricken by the
Court were eye witnesses to the action or activities related to the discharge of James
Nacy and Cole Tumberg and that the retaliatory discharge claims were added after the
Rule 26 disclosures were made. Defendants again argue that both counsel and the
parties knew of the eyewitnesses and thus there was no surprise or prejudice to the
plaintiffs. Defendants argue that Rule 26 disclosures were provided for the wage and

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hour claims, but Athrough simple oversight and omission of Defendants= counsel@
supplemental documentation was not provided for the class action allegations or
retaliatory discharge allegations. (Motion for Reconsideration, p. 5). Defendants
argue that they are sufficiently sanctioned if the Court were to only strike seven of the
eleven witnesses, but allow them to call Robert Zenk, Spencer Sherf, Justin Wakefield
and Jared Mienders. Plaintiffs argue that there is not a Acritical witness@ exception to the
Rule 26 disclosure requirements. Rather, plaintiffs state that defendants= claim that the
court should only strike seven of the witnesses, but allow the other four witnesses to
testify, simply illustrates that these witnesses should have been disclosed to the Court
before discovery closed. Plaintiffs also argue that they will be prejudiced if the
defendants are allowed to call these four witnesses, because they would be forced to
cross-examine these witnesses without having the benefit of their deposition testimony.
Defendants also assert that plaintiffs added three witnesses to their list (Brandon
Clark, Anna Istes and Richard Whalen), whose names were not disclosed through Rule
26 disclosures. Plaintiffs state that two of those witnesses were dropped from their
Amended Witness List (Anna Istas and Brandon Clark) and the third witness, Richard
Whalen was identified by plaintiffs in their initial disclosures.
The Court finds that there is no basis on which to reconsider the previous order
striking the eleven witnesses. As the Court stated in Vecchio v. Schaefer, 244 F.R.D.
552, 557 (W.D.Mo. 2007), A[t]hese witnesses will not be permitted to testify at trial
unless the party seeking to use the witnesses had >substantial justification= or the failure
was harmless.@ In CNH Capital America LLC v. McCandless, No. C05-2087, 2007 WL
1830819, *4 (N.D.Iowa June 22, 2007), the Court stated, A[d]elays in disclosure are not
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>substantially justified= when they could have reasonably been avoided.@

In the instant

case the only reasons offered by defendants for failing to disclose these witnesses
were: 1) the pleadings were amended to add additional claims; 2) plaintiffs= also failed to
supplement their disclosures and 3) the witnesses are Acritical.@ The Court does not find
that any of the reasons advanced by the defendants shows substantial justification.
Defendants should have been on notice that they might need to supplement their
disclosures when plaintiffs filed their Amended Complaint or even after plaintiffs filed
their supplemental disclosures in March 2012. Additionally, the Court finds that the
plaintiffs will be harmed if even one of the witnesses is allowed to testify, because they
would be forced to cross-examine these witnesses without the benefit of their
depositions. None of the witnesses were disclosed to the plaintiffs, even though the
witnesses were all employees of the defendant. Accordingly, because defendants
have failed to show that this failure to disclose was substantially justified and because
allowing these witnesses to be called would prejudice plaintiffs, the Court hereby
DENIES defendants= Motion for Reconsideration (Doc. # 144).

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

Date: March 25, 2013
Kansas City, Missouri

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