Estate of Betty L. Dunfee v. Foremost Insurance Company
Filing
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ORDER AND OPINION: Defendant's motion for sanctions # 12 is GRANTED. Plaintiff is PRECLUDED from introducing evidence not already available to defendant. Plaintiff is also PRECLUDED from introducing any expert testimony in this action. Signed by Magistrate Judge Norah McCann King on 04/21/2009. (sr)
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ESTATE OF BETTY DUNFEE, Plaintiff, vs. FOREMOST INSURANCE COMPANY, Defendant. OPINION AND ORDER Plaintiff in this action seeks recovery in connection with a fire loss of real and personal property insured by defendant. This Civil Action 2:08-CV-759 Magistrate Judge King
matter is now before the Court on defendant's motion, filed pursuant to F.R. Civ. P. 37(c), to preclude plaintiff from introducing evidence not already in defendant's possession and prohibiting plaintiff from
introducing expert testimony. by plaintiff to the motion.
Doc. No. 12.
There has been no response
Defendant bases its motion on its assertion that plaintiff has wholly failed to comply with the deadlines established by the Court in the Rule 16 conference. Preliminary Pretrial Order, Doc. No. 9. At that
conference, the Court established dates by which initial disclosures under F.R. Civ. P. 26(a)(1) and dates by which expert designations under F.R. Civ. P. 26(a)(2) were to have been made. Id. Defendant asserts,
and plaintiff does not deny, that plaintiff has not met those deadlines. Rule 37(c) provides in pertinent part that, where a party fails to comply with the obligations imposed by Rule 26(a), "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."
Because it appears that
plaintiff has failed to meet its obligations under Rule 26(a), and because plaintiff has neither justified that failure nor established that its failure was harmless, defendant's motion for sanctions, Doc. No. 12, is GRANTED. Plaintiff is PRECLUDED from introducing evidence not already available to defendant. Plaintiff is also PRECLUDED from introducing any expert testimony in this action.
April 21, 2009
s/Norah McCann King Norah McCann King United States Magistrate Judge
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