Thompson v. Bridon-American Corporation

Filing 55

MEMORANDUM OPINION AND ORDER denying 50 MOTION to Strike 46 Appendix Affidavits Submitted in Opposition to Summary Judgment filed by Bridon-American Corporation. Signed by Magistrate Judge Martin C. Carlson on September 26, 2018. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK THOMPSON,
Plaintiff
v.
BRIDON-AMERICAN CORP.,
Defendants

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Civil No. 3:17-CV-40
(Judge Mariani)
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Statement of Facts and of the Case

This is an employment discrimination action. The plaintiff, Mark Thompson
has alleged that he was terminated from his employment with Bridon solely because
of his age in violation of his rights pursuant to Title VII of the United States Civil
Rights Act of 1964, as amended, 42 U.S.C. §2000e, et. seq, ("Title VII") and the
Pennsylvania Human Relations Act. (Doc. 1.)
The defendant has filed a motion for summary judgment in this case arguing
that it is entitled to judgment as a matter of law on this age discrimination claim.
(Doc. 38.) Thompson has responded to this motion for summary judgment by, inter
alia, filing affidavits from two witnesses, John Lunski and Earl Jones who
Thompson asserts support his claim of workplace age discrimination at Bridon.

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(Doc. 46.) This submission by Thompson, in turn, inspired Bridon to move to
strike the Lunski and Jones affidavits, alleging that preclusion of this evidence is an
appropriate sanction under Rule 37 of the Federal Rules of Civil Procedure because
the plaintiff never disclosed the identity of these witnesses in pre-trial discovery.
(Docs. 50 and 51.) For his part, Thompson has responded to this motion to strike and
preclude evidence in a straightforward fashion by noting that he had specifically
identified Lunski and Jones as potential witnesses in his answers to Bridon’s
interrogatories and during the course of a deposition conducted by Bridon’s counsel.
(Doc. 53.)
On these facts, for the reasons set forth below, this motion to strike (Doc. 50),
will be DENIED.
II.

Discussion

Several basic guiding principles inform our resolution of the instant discovery
dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs
motions to compel discovery, and provides that:
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General. On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or discovery. . . .
Fed. R. Civ. P. 37(a).
Rulings regarding the proper scope of discovery are Acommitted to the sound

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discretion of the district court.@ DiGregorio v. First Rediscount Corp., 506 F.2d
781, 788 (3d Cir. 1974). Likewise it is well-settled that:
The decision to impose sanctions for discovery violations and any
determination as to what sanctions are appropriate are matters
generally entrusted to the discretion of the district court. National
Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct.
2778, 49 L.Ed.2d 747 (1976) (per curiam). . . . . While this standard of
review is deferential, a district court abuses its discretion in imposing
sanctions when it “base[s] its ruling on an erroneous view of the law or
on a clearly erroneous assessment of the evidence.” Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359
(1990).
Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 538 (3d Cir. 2007).
This discretion is guided, however, by certain basic principles. For example,
Rule 37 of the Federal Rules of Civil Procedure provides that: “If a party . . . . fails
to obey an order to provide or permit discovery, including an order under Rule 26(f),
35, or 37(a), the court where the action is pending may issue further just orders,” and
specifies an array of available sanctions, which include preclusion of evidence and
striking of pleadings. Fed. R. Civ. P. 37(b)(2)(A). Yet, while the sanction of
exclusion of evidence is available as a remedy for discovery violations, it is also
clear that:
Courts in the Third Circuit should exercise particular restraint in
considering motions to exclude evidence. See In re TMI Litig., 922
F.Supp. 997, 1003–04 (M.D.Pa.1996); DiFlorio v. Nabisco Biscuit Co.,
1995 WL 710592 at *2 (E.D.Pa. Nov. 13, 1995) (“Unfortunately, the
courts of this circuit are not free to exercise the full range of sanctions
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for discovery abuses authorized by the Rules.”). The Third Circuit has,
on several occasions, manifested a distinct aversion to the exclusion of
important testimony absent evidence of extreme neglect or bad faith on
the part of the proponent of the testimony. See In re Paoli R.R. Yard
PCB Litig., 35 F.3d 717, 791–92 (3d Cir.1994), cert. denied, 513 U.S.
1190, 115 S.Ct. 1253, 131 L.Ed.2d 134 (1995); Meyers v. Pennypack
Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir.1977),
overruled on other grounds, Goodman v. Lukens, 777 F.2d 113 (3d
Cir.1985), aff'd, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987);
Dudley v. South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir.1977).
“[T]he exclusion of critical evidence is an ‘extreme’ sanction not
normally to be imposed absent a showing of willful deception or
‘flagrant disregard’ of a court order....” Pennypack, 559 F.2d at 905
(citation omitted).
ABB Air Preheater, Inc. v. Regenerative Envtl. Equip. Co., 167 F.R.D.
668, 671–72 (D.N.J. 1996).
Recognizing the extreme nature of the sanction of preclusion of evidence as a
remedy for alleged discovery infractions, we find that this motion to strike affidavits
and preclude evidence fails for a simple reason: In our view the defendant has not
shown that there was a culpable failure to disclose the identifies of Lunski and Jones
as potential witnesses. Quite the contrary, it appears that the identities of these
potential witnesses were disclosed to the defendant twice in the course of discovery.
On these facts, there has been no sanctionable misconduct, and certainly no conduct
which would warrant the preclusion of this evidence. The motion to strike will,
therefore, be denied.
An appropriate order follows.

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III.

Order

AND NOW, this 26th day of September, 2018, IT IS ORDERED that the
defendant’s Motion to Strike Affidavits (Doc. 50), is DENIED.1

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

Having resolved this motion to strike, which defines the relevant evidence for
consideration with respect to the pending summary judgment motion in this case,
(Doc. 38), we will address that dispositive motion through a separate Report and
Recommendation.

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