McGowan et al v. Murphy-Brown, LLC

Filing 486

ORDER granting in part and denying in part 467 Motion (Plaintiffs' Motion to Clarify) regarding 461 Order on Motion in Limine. Signed by Senior Judge W. Earl Britt on 1/9/2019. (Herrmann, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-182-BR
WOODELL MCGOWAN, et al.,

)
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Plaintiffs,
)
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v.
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MURPHY-BROWN, LLC, d/b/a
)
SMITHFIELD HOG PRODUCTION
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DIVISION,
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)
Defendant.
)
____________________________________)

ORDER

This matter is before the court on plaintiffs’ motion to clarify order dated 18 December
2018. (DE # 467.) Defendant filed a response in opposition. (DE # 474.)
The order at issue addressed plaintiffs’ motion in limine to exclude late-disclosed
witnesses and evidence. (DE # 461.) Pertinently, plaintiffs moved to exclude 49 defense
witnesses. The court barred 28 of those witnesses from testifying as well as 27 of plaintiffs’
witnesses from testifying, unless the parties agreed one or more of these witnesses could testify.
Plaintiffs now request the court clarify the order as to 18 “similarly situated witnesses on
[d]efendant’s witness list in the pretrial order” who were not included in the order and two of
plaintiffs’ witnesses who were subject to the order, but plaintiff contends were “timely disclosed
during discovery[.]” (Pl.s’ Mot. (DE # 467) at 2.) In response, defendant contends this motion is
one not for clarification but reconsideration, and these 18 additional fact witnesses should not be
excluded because the “late identification was substantially justified and harmless. . . .” (Def.’s
Resp. Opp’n (DE # 474) at 4.) Defendant did not raise any objection to plaintiffs’ argument
regarding plaintiffs’ two witnesses included in the court’s order.

As an initial matter, the court clarifies it prior ruling as to the two witnesses identified by
plaintiffs. Plaintiffs represent that these two witnesses were not late-disclosed and defendant
does not contest this representation. Accordingly, plaintiffs’ motion is ALLOWED such that Ed
Emory and Rhonda Campbell will not be barred from testifying under Rule 37(c)(1).
As for the other witnesses at issue, plaintiffs’ request is not for clarification of the court’s
18 December 2018 order, but rather they seek to have the court determine whether 18 additional
defense witnesses, who were not included in their motion in limine, should also be excluded.
Plaintiffs do not explain why they failed to identify these witnesses in their prior motion in
limine. Because any motion in limine was required to be filed by 28 November 2018, and
because plaintiffs’ request amounts to a new motion in limine, it is untimely. As such, it is
DENIED.
This 9 January 2019.

__________________________________ 

W. Earl Britt
Senior U.S. District Judge

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