R&O Construction Company v. New Creation Masonry, Inc. et al

Filing 113

ORDER Granting 92 Motion to Strike declaration of Nakesha Duncan attached as Exhibit 1 to 77 Defendant's Motion for Summary Judgment. Signed by Judge Larry R. Hicks on 9/12/11. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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R&O CONSTRUCTION COMPANY,
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Plaintiff,
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v.
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ROX PRO INTERNATIONAL GROUP,
LTD.; et al.,

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Defendants.

2:09-cv-01749-LRH-LRL
ORDER

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Before the court is plaintiff R&O Construction Company’s (“R&O”) motion to strike the

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declaration of Nakesha Duncan (“Duncan”) submitted in support of defendant Real Stone Source,

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LLC’s (“Real Stone”) motion for summary judgment (Doc. #77, Exhibit 11). Doc. #92. Real Stone

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filed an opposition (Doc. #100) to which R&O replied (Doc. #108).

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I.

Facts and Background

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This is a construction defect action. R&O was the general contractor for a Home Depot

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store in Las Vegas, Nevada. R&O subcontracted the construction of the required stone veneer,

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manufactured by defendant Rox Pro International Groups, Ltd. (“Rox Pro”), to non-party New

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Creation Masonry Inc. (“New Creation”). New Creation purchased the stone veneer from defendant

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Refers to the court’s docket number.

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Arizona Stone and Architectural Products NV, LLC (“Arizona Stone”). Allegedly, the stone veneer

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failed and R&O was forced to make substantial structural repairs to the Home Depot store.

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On September 3, 2009, R&O filed its initial complaint against defendants Rox Pro; Real

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Stone; Arizona Stone; and WD Partners, Inc. (“WD Partners”), the architectural firm which

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designed the Home Depot store. Doc. #1. R&O filed a first amended complaint on February 5,

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2010 (Doc. #22) and a second amended complaint on June 29, 2010 (Doc. #48). The second

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amended complaint alleges ten causes of action: (1) implied warranty of merchantability - Arizona

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Stone; (2) implied warranty of fitness for a particular purpose - Arizona Stone; (3) implied warranty

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of merchantability - Real Stone; (4) implied warranty of fitness for a particular purpose - Real

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Stone; (5) implied warranty of merchantability - Rox Pro; (6) implied warranty of fitness for a

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particular purpose - Rox Pro; (7) express warranty - Real Stone and Rox Pro; (8) express warranty -

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Arizona Stone, Real Stone, and Rox Pro; (9) negligent misrepresentation - WD Partners and

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Real Stone; and (10) breach of contract - WD Partners. Doc. #48.

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On April 8, 2011, defendant Real Stone filed a motion for summary judgment. Doc. #77. In

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support of its motion, Real Stone attached the declaration of Nakesha Duncan. Doc. #77, Exhibit 1.

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Thereafter, R&O filed the present motion to strike the declaration for failure to disclose Duncan as

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a witness pursuant to Rule 37 of the Federal Rules of Civil Procedure. Doc. #92.

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II.

Discussion

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Federal Rule of Civil Procedure 37 states in pertinent part that “if a party fails to provide

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information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use

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that information or witness to supply evidence on a motion . . ., unless the failure was substantially

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justified or is harmless.” FED . R. CIV . P. 37(c)(1). This sanction is “self-executing” and

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“automatic.” Yeti by Molly Ltd. v. Deckers Outdoor Co., 259 F.3d 1101, 1106 (9th Cir. 2001).

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Here, it is undisputed that Nakesha Duncan was not disclosed as a witness in this action in
accordance with Rule 26. Therefore, the court finds that her declaration is properly excludable
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under Rule 37(c)(1).
In opposition, Real Stone argues that the late disclosure of Nakesha Duncan was harmless

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because her declaration contains information that is cumulative of other evidence already provided

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to the court. See Doc. #100. However, the court finds that Duncan’s declaration contains additional

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non-cumulative statements for which there is no other identified source. Therefore, the court finds

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that Real Stone has not made a sufficient showing that the failure to identify Nakesha Duncan was

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harmless. See Yeti by Molly Ltd., 259 F.3d at 1107 (“Implicit in Rule 37(c)(1) is that the burden is

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on the party facing sanctions to prove harmlessness.”). Accordingly, the court shall grant R&O’s

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motion to strike.

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IT IS THEREFORE ORDERED that plaintiff’s motion to strike (Doc. #92) is GRANTED.

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The clerk of court shall STRIKE the declaration of Nakesha Duncan attached as Exhibit 1 to

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defendant’s motion for summary judgment (Doc. #77).

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IT IS SO ORDERED.

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DATED this 12th day of September, 2011.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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