Estate of David N. Osborne v. Limoges et al

Filing 60

ORDER denying 58 Motion for Leave to File Supplemental Witness List Instanter. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES H. MONAHAN,
Plaintiff,
v.
DIANE LAMOGIS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

8:10CV164
ORDER

This matter is before the court on the plaintiff’s Motion for Leave to File
Supplemental Witness List Instanter (Filing No. 58) and the defendants’ opposition (Filing
No. 59) to the motion. The plaintiff seeks to file an amended trial witness list, which would
add three individuals who would likely introduce documents not yet produced or listed in
the order on final pretrial conference (Filing No. 51). The plaintiff states these witnesses
are newly discovered and have material information related to the parties’ claims and
defenses. See Filing No. 58. The plaintiff indicates the witnesses could not have been
listed earlier because counsel identified them through an investigation within the last five
to fourteen days. Id. ¶ 9.
On May 19, 2011, the court entered an amended final progression order, which
required disclosure of trial witnesses by October 28, 2011. See Filing No. 31. Such
deadline allowed time to depose the listed witnesses prior to the end of discovery on
November 30, 2011. Id. No party requested an extension of either deadline. The plaintiff
filed his trial witness list on October 28, 2011. See Filing No. 44. On December 16, 2011,
the court held the final pretrial conference and entered the Final Pretrial Order listing
witnesses for trial. See Filing No. 51.1 On January 10, 2012, the plaintiff filed the instant
motion to supplement the witness list. See Filing No. 58. The trial remains scheduled to
begin on January 17, 2012. See Filing No. 51.

1

The Final Pretrial Order identifies several witnesses and lists several others as “representatives”
from various com panies. The parties had until January 9, 2012, to identify the nam e of such representatives.
The record contains no evidence any of these representative were identified by nam e.

The defendants oppose the plaintiff’s attempt to add witnesses at this time. See
Filing No. 59. The defendants argue the plaintiff had sufficient opportunity to timely
discover and disclose the proposed witnesses because this case was filed on April 28,
2010, based on a probate proceeding opened in September 2008. Id. The defendants
argue they will suffer undue prejudice if the amendment is allowed because they have not
had an opportunity to depose the witnesses or conduct any other discovery as to the
potential testimony. Id. at 2. The defendants contend the late disclosure precludes
admission of the witnesses under Fed. R. Civ. P. 37(c)(1) and the plaintiff fails to provide
any reasonable justification or any explanation why the three witnesses could not be
identified until the week before trial. Id. at 2-3. In fact, one of the proposed witnesses is
the daughter of the deceased, about whom the plaintiff must have known since at least
2008, but who was never identified even as a person with discoverable information. Id. at
3. Finally, the defendants do not want to delay trial. Id.
In preparation for the Final Pretrial Conference:
Each party must separately list all witnesses, including rebuttal
witnesses, whom that party expects to call to testify, except
witnesses who may be called for impeachment purposes as
defined in Nebraska Civil Rule 16.2(c). The list must (1)
include the city and state where each witness resides and (2)
identify witnesses whom the party expects to be present and
whom the party may call. Except upon a showing of good
cause, a witness whose name and city of residence does not
appear on the list will not be permitted to testify over objection
for any purpose except impeachment. The witness list must
identify each witness whose only testimony is intended to
establish foundation for an exhibit for which foundation has not
been waived, and unless the witness was disclosed under
Federal Rule of Civil Procedure 26(a)(3), over objection the
witness may not testify for any other purpose. A witness
appearing on any party’s witness list may be called by any
other party.
NECivR 16.2(a)(2)(D).
“‘The power of the trial court to exclude exhibits and witnesses not disclosed in
compliance with its discovery and pretrial orders is essential’ to the judge’s control over the
case.” Sellers v. Mineta, 350 F.3d 706, 711 (8th Cir. 2003) (citation omitted). When a
2

party fails to provide “discovery under Rule 37, the court may prohibit ‘that party from
introducing designated matters in evidence.’” Dillon v. Nissan Motor Co., 986 F.2d 263,
268-69 (8th Cir. 1993) (quoting Fed. R. Civ. P. 37(b)(2)(B) now found at Fed. R. Civ. P.
37(c)(1)). In fact, “[i]f a party fails to . . . identify a witness as required by Rule 26(a) or (e),
the party is not allowed to use that . . . witness to supply evidence . . . at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Additional
factors relevant to determining whether to allow undisclosed evidence to be listed for use
at trial include: “(1) the importance of the excluded material; (2) the explanation of the party
for failure to comply with the disclosure rules; (3) the potential prejudice from allowing the
material to be used at trial; and (4) the availability of a continuance to cure such prejudice.”
Mathers v. Northshore Mining Co., 217 F.R.D. 474, 482 (D. Minn. 2003); see also Diop
v. Holder, 586 F.3d 587, 592 (8th Cir. 2009) (applying Sellers); Citizens Bank of
Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir 1994) (applying Mathers
test in exclusion of witnesses). “In demonstrating good cause, the moving party must
establish that the ‘scheduling deadlines [could not] be met despite a party’s diligent
efforts.’” Thorn v. Blue Cross and Blue Shield of Florida, Inc., 192 F.R.D. 308, 309
(M.D. Fla. 2000) (citations omitted) (paraphrasing Fed. R. Civ. P. 16 advisory committee
notes (1983 amendment)). Moreover, “if the reason for seeking the amendment is
apparent before the deadline and no offsetting factors appear, the Rule 16 deadline must
govern.” Financial Holding Corp. v. Garnac Grain Co., 127 F.R.D. 165, 166 (W.D. Mo.
1989); see Bradford v. DANA Corp., 249 F.3d 807, 809-10 (8th Cir. 2001).
In this case, the plaintiff has completely failed to provide any explanation for his
failure to identify the relevant witnesses earlier in the proceeding. The plaintiff’s failure to
conduct adequate investigation and discovery does not provide good cause for failure to
comply with court orders and the rules of court. The defendants would suffer undue
prejudice by either a delay of trial or having to proceed without additional discovery as to
these three proposed witnesses. The court finds no good cause or substantial justification
to permit the plaintiff to amend his witness list at this late stage to add three witnesses
discovery could have revealed prior to the beginning of the litigation. Upon consideration,

3

IT IS ORDERED:
1.

The plaintiff’s Motion for Leave to File Supplemental Witness List Instanter

(Filing No. 58) is denied.
2.

The defendants’ opposition (Filing No. 59) is sustained.

Dated this 11th day of January, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
4