The City of New York v. Fedex Ground Package System, Inc. et al

Filing 532

OPINION & ORDER re: 529 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Edgardo Ramos from Brian L. Stekloff dated 8/21/2018. filed by FedEx Ground Package System, Inc.,. The Court consequently denies FedEx Ground l eave to file a motion to exclude the testimony of Dawn McCarrell, Matt Myers, Matthew Myerson, and Christopher Nichols, without prejudice to FedEx Grounds right to make any other objection to their testimony. The Clerk of the Court is directed to terminate the motion (Doc. 529). It is SO ORDERED. (Signed by Judge Edgardo Ramos on 9/7/2018) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK AND THE PEOPLE OF THE
STATE OF NEW YORK,
Plaintiffs,

OPINION & ORDER
-against13 Civ. 9173 (ER)

FEDEX GROUND PACKAGE SYSTEM, INC.,
Defendant.

Ramos, D.J.:

On August 21, 2018, FedEx Ground submitted a letter seeking permission to file a motion
to exclude the testimony of four proposed trial witnesses pursuant to Federal Rule of Civil
Procedure 37(c)(1). Doc. 529. The witnesses are Dawn McCarrell, Matt Myers, Matthew
Myerson, and Christopher Nichols. Doc. 529. On August 29, 2018, Plaintiffs, the City of New
York and the People of the State of New York, filed a letter responding to FedEx Ground. Doc.
531. Having reviewed the parties’ submissions, the Court denies FedEx Ground leave to file a
motion to exclude the four witnesses from testifying at this juncture.
Rule 37(c)(1) provides that “[i]f 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.” Rule 26(a)(3) states that “a party must provide to the other parties and promptly
file the following information about the evidence that it may present at trial other than solely for

impeachment: (i) the name and, if not previously provided, the address and telephone number of
each witness . . . .” These witness disclosures “must be made at least 30 days before trial.” Fed.
R. Civ. P. 26(a)(3)(B). Rule 26(e) requires parties to supplement their Rule 26(a)(3) disclosures
“in a timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing . . . .”
FedEx Ground contends that the four witnesses Plaintiffs identified for the first time on
August 6, 2018 in their supplemental disclosures were disclosed late under Rule 26(a) and thus
under Rule 37 should be excluded from testifying. But FedEx Ground does not identify what
deadline Plaintiffs’ supplemental disclosures breached. Under the operative scheduling order, the
parties’ witness lists are due on September 7, 2018, as part of the joint pretrial statement. The new
witnesses were disclosed a month before then. The new witnesses were also disclosed before the
30-day deadline for witness disclosures set out in Rule 26(a)(3)(B). Plaintiffs thus did not “fail[]
to . . . identify a witness as required by Rule 26(a).” Fed. R. Civ. P. 37(a).
The Court consequently denies FedEx Ground leave to file a motion to exclude the
testimony of Dawn McCarrell, Matt Myers, Matthew Myerson, and Christopher Nichols, without
prejudice to FedEx Ground’s right to make any other objection to their testimony. The Clerk of
the Court is directed to terminate the motion (Doc. 529).

It is SO ORDERED.
Dated: September 7, 2018
New York, New York
_______________________
Edgardo Ramos, U.S.D.J.

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