Nasuti v. Walmart, Inc.
Filing
90
ORDER granting in part and denying in part 78 MOTION to Strike, MOTION to Compel, Appeal of Magistrate Order 74 and 75 , MOTION for Sanctions. Signed by U.S. District Judge Lawrence L. Piersol on 08/04/2021. (MSB) Sent to Matt Nasuti via USPS on 8/4/2021 (MSB).
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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MATT NASUTI,
5:20-CV-5023-LLP
Plaintiff,
ORDER
vs.
WALMART,INC.,
Defendant.
Pending before the Court is an Omnibus Motion filed by Plaintiff, Matt Nasuti ("Nasuti")
on June 21, 2021. (Doc. 78.) There are five separate parts to the motion: 1) a motion to strike
three of Walmart's affirmative defenses; 2) a motion to compel discovery; 3) an appeal of the
Magistrate Judge's ruling compelling his deposition; 4) a motion for sanctions against Walmart;
and 5) a request for an interlocutory appeal of the order denying Nasuti's motion for summary
judgment. (Doc. 78.) Walmart filed a response to the Omnibus Motion on July 8, 2021. (Doc.
82.) Due to the time deadline for Nasuti's deposition, the Court addressed his appeal of the
Magistrate Judge's rulings without a responsive brief from Walmart. On July 7, 2021, the Court
issued an Order granting in part and denying in part Nasuti's appeal of the Magistrate Judge's
order compelling his deposition.(Doc. 80.) In this Order the Court will rule on Nasuti's motion
to strike affirmative defenses, motion to compel discovery, motion for sanctions, and motion for
leave to file an interlocutory appeal. Walmart opposes the motions. (Doc. 82.)
BACKGROUND
The factual background of this case was recently explained in this Court's July 14, 2021
Order(Doc. 85), and that background is incorporated herein by reference.
DISCUSSION
I.
Motion to Strike Walmart's Affirmative Defenses 5,6 and 8
Nasuti asks the Court to strike Walmart's fifth, sixth and eighth affirmative defenses. These
defenses are:(1) after-acquired evidence;(2) waiver, estoppel and/or unclean hands; and (3) the
statute oflimitations.(Doc. 3, p. 5). Nasuti argues that these defenses should be stricken because
Walmart failed to sufficiently respond to an interrogatory asking for all facts and arguments in
support ofthe defenses.
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Under Federal Rule of Procedure 8(b)(1), a party must "state in short and plain terms its
defenses to each claim asserted against it." Fed. R. Civ. P. 8(b)(1). In addition, Federal Rule of
Civil Procedure 8(c)(1) requires a party, in responding to a pleading, to "affirmatively state any
avoidance or affirmative defense." Id. 8(c)(1).
Nasuti first contends that the affirmative defenses are insufficiently pleaded. A court may
strike an affirmative defense under Federal Rule of Civil Procedure 12(f) if it is "insufficient" or
presents "any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). In
general, courts disfavor motions to strike under Rule 12(f) because "striking a party's pleadings is
an extreme measure." Stanbury Law Firm v. I.R.S., 221 F.3d 1059,1063 (8th Cir. 2000)(citations
omitted). Whether to grant a motion to strike lies within the discretion of the district court. See
id. When considering a motion to strike, the court must view the pleadings in the light most
favorable to the pleading party. See, e.g.. In re 2TheMart.com Sees. Litig, 114 F. Supp. 2d 955,
965 (C.D. Cal. 2000). The Court concludes that Walmart's affirmative defenses are sufficiently
pleaded-to provide Nasuti with fair notice ofthe defenses asserted. See, e.g., Wyshakv. City Nat'I
Bank, 607 F.2d 824, 827 (9th Cir. 1979)(holding affirmative defense insufficiently pleaded if it
fails to provide the plaintiff "fair notice" of the defense asserted), abrogated in part on other
grounds by Castro v. Cty. ofL.A., 833 F.3d 1060(9th Cir. 2016)(en banc).
Next, Nasuti argues that the affirmative defenses 5, 6 and 8 should be stricken as a
discovery sanction due to Walmart's failure to provide information about the affirmative defenses
in answer to Interrogatory 14. The Eighth Circuit has recognized that a discovery sanction
pursuant to Federal Rule of Civil Procedure 37(b) should not be imposed by the trial court unless
a Rule 37(a) order is in effect. See Dependahl v. FalstaffBrewing Corp.,653 F.2d 1208, 1213 (8th
Cir. 1981). "The prerequisite of a Rule 37(a) order insures that the party failing to comply
with discovery is given adequate notice and an opportunity to contest the discovery sought prior
to the imposition ofsanctions." Id. Here, Walmart's affirmative defenses may not be stricken as
a discovery sanction pursuant to Rule 37(b) because there is no Rule 37(a) order in force.
Walmart argues that sanctions should not be imposed in part because Nasuti did not serve
any interrogatory analogous to Interrogatory 14 after discovery restarted. Walmart also asserts
that it properly objected to Interrogatory 14 because providing all facts and arguments in support
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of the affirmative defenses would have required Walmart to furnish privileged information,
including the mental impressions of counsel.
The Court recognizes that this case has not followed the usual procedural path due, in part,
to the parties' undertaking discovery before the issues were narrowed and prior to issuance of a
Scheduling Order. Nasuti has indicated that he was unable to start discovery anew as directed by
the Court after the issues for discovery and trial had been determined. Given the unusual path this
ease has taken, the Court will direct Walmart to supplement its answer to Interrogatory 14 by
providing Nasuti with any unprivileged information in support of the legal and factual bases for
affirmative defenses 5, 6 and 8. See Fed. R. CN. P. 26(b)(1) ("[pjarties may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party"). If no
legal or factual issues exist for those defenses, the Court will consider a motion to strike the
defenses in order to narrow the issues for trial.
11.
Compel Answers to Late Discovery Responses
On April 27,2021,Nasuti mailed Walmart a set ofinterrogatories,requests for production
and requests for admission. Because the discovery requests were sent by mail, Walmart had 33
days to send its responses. See Fed. R. Civ. P. 6(d). Thus, Walmart's responses were due to be sent
on or before June 1, 2021. Due in part to the COVID-19 pandemic and an assistant working from
home,the responses were not mailed until June 2, 2021.
Once Nasuti advised counsel for Walmart that the responses were sent a day late and Nasuti
would not agree to an extension, Walmart moved for a one-day extension oftime to respond. (Doe.
76.) Walmart submitted a briefin support ofthe motion, two declarations explaining the situation,
and copies of correspondence with Nasuti. (Doe. 77.) According to defense counsel's declaration
submitted with the motion for a one-day extension of time, Walmart had finished drafting its
responses to Nasuti's discovery requests by June 1, 2021. That same day, counsel approved the
discovery responses and asked an associate attorney to send them to his legal assistant so that she
could arrange for service by mail on Nasuti. Normally, the legal assistant prints and mails
discovery responses herself, but due to the Covid-19 pandemic, she was working from home on
June 1, and therefore had to delegate this task to someone who works in the law firm's copy center.
The declaration of the copy center employee states that he was busy on June 1 and he forgot to
print and mail Walmart's discovery responses until the next day, June 2. (Doe. 77-4.) Counsel
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for Walmart was unaware that the discovery responses had not actually been mailed on June 1 as
he had requested and understood to have occurred until he received a letter from Nasuti.
Nasuti contends that counsel for Walmart falsely certified that he personally mailed the
discovery responses by stating that he served the documents via U.S. first class mail on June 1,
2021. Nasuti believes this constitutes fraud on the Court. He asks the Court to find that Walmart
waived all its objections to the discovery which was served by Walmart one day late, and to direct
Walmart to re-respond and provide Nasuti with all the requested documents.
As set forth in its Order granting Walmart's motion for an extension of time,
The Court does consider the one (1) day late filing to have been the result of excusable
neglect under Fed. R. Civ. P. 6(b)(1)(B). The excusable neglect resulted at least in part
from a change in office procedure due to COVID-19 and the resulting remote working. If
electronic filing could have been used, the delay would not have taken place.
(Doc. 84.) For the same reasons the Court granted Walmart's motion for a one-day extension,,the
Court does not find that sanctions should be ordered for the discovery that was served one day late.
III.
Motion for Rule 26,30,34 and 37 Sanctions, and to Strike Walmart's Answer
This portion of Nasuti's Omnibus Motion has ten separate subparts. The subparts will be
addressed in the order set forth in Nasuti's motion.
1. Motion to Strike both of Walmart's 2021 Supplemental Rule 26 Disclosures
Before discovery, parties have a duty to make initial disclosures under Rule 26, which
includes disclosing the identities of persons "likely to have discoverable information . . . that the
disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(l)(A)(i). After
the discovery phase has begun, a party who has responded to an interrogatory "must supplement
or correct its disclosure or response ... 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." Fed. R. Civ. P. 26(e)(1)(A). While "[sjupplementations need not be made as
each new item of information is learned," it "should be made at appropriate intervals during the
discovery period." Fed. R. Civ. P. 26(e) advisory committee's note to 1993 amendment.
Under Rule 37(c)(1), if a party fails to make these required disclosures, a district court may
prohibit the party from using "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." Fed. R. Civ. P.
37(c)(1). The Rule further states that, "[i]n addition to or instead of this sanction, the court, on
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motion and after giving an opportunity to be heard . . . may impose other appropriate sanctions,"
including ones that are less severe or more severe than precluding the evidence. Id. Those
sanctions include: (i) directing that the matters or facts be taken as established for purposes of the
action; (ii) prohibiting the disobedient party from supporting or opposing designated claims or
defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or
part; (iv) staying further proceedings until a court order is obeyed;(v) dismissing the action in
whole or part; and (vi) rendering a default judgment against the disobedient party. Fed. R. Civ. P.
37(b)(2)(A). The "district court has wide discretion to fashion a remedy or sanction as appropriate
for the particular circumstances of the case." Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir.
2008)."When fashioning a remedy, the district court should consider, inter alia, the reason for
noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the
information or testimony would disrupt the order and efficiency ofthe trial, and the importance of
the information or testimony." Id.
On May 20, 2020, Walmart served its initial Rule 26(A)(1) disclosures on Nasuti, naming
three individuals "likely to have discoverable information that" Walmart might use to support its
defenses. (Doc. 78-2, pp. 834-37.) On March 18, 2021, Walmart served supplemental Rule
26(A)(1) disclosures naming ten individuals.' {Id., pp. 838-43.) On May 25, 2021, Walmart
served Nasuti with a second supplemental Rule 26(A)(1) disclosure, adding one more individual
with discoverable information, for a total of eleven individuals. {Id., pp. 844-49.)
Nasuti believes that Walmart's lawyers knew about all eleven individuals at the start of
this litigation. There is nothing in the record to support that allegation. A trial date has not yet
been set, and Walmart made two supplementations at "appropriate intervals" during the course of
discovery. Nasuti's motion to strike Walmart's supplemental Rule 26 disclosures is denied.
^ Rule 26(e) provides;
(e)Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure under Rule 26(a)-or who has responded to an
interrogatory, request for production, or request for admission-must suppiement or correct its disclosure
or response:
(A) 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; or
(B) as ordered by the court.
Fed. R. Civ, P. 26.
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2. Concealing Witnesses
Nasuti asserts that counsel for Walmart has concealed over 40 witnesses and deceived the
Court. It is not clear what this allegation is based on. In its brief, Walmart denies that it has
prevented Nasuti from obtaining discovery about any person who played a role in his termination.
Nasuti accuses Walmart's counsel of engaging in discovery misconduct and fraud without any
substantiation.
3.
Insider Threat
Here, Nasuti points to a March 2, 2020 email that was produced by Walmart in discovery.
A copy is attached as Exhibit 9 to Nasuti's Omnibus Motion. The email chain shows that Kacie
Hall sent Nasuti an email regarding termination ofhis employment at 11:15 AM on March 2,2020.
At 12:30 PM, Nasuti sent an email to Kristi Yamall, a case manager in Associate Relations
Investigations, asking her if she had approved it. At 12:36 PM,Yamall emailed Ethics Manager,
Monica Straube, asking ifshe had any information regarding the termination. At 1:24 PM,Strauhe
sent the following message to Yamall:
I just checked my system and I don't see another case in our Ethics System that involves
ASM Matt. I have no idea why they terminated Matt or for what reason. You many need
to get clarification from the MHRM. That might help explain why Matt was a no show for
your scheduled interview. Maybe the MHRM partnered with Insider Tmst or some other
Home Office department.
Nasuti asserts that this email is evidence that "Insider Tmst" opened a file on him, and he
alleges that there is a correlation between an investigation by the Insider Tmst department and
Walmart's retaliation against him. As indicated above, Walmart denies that it has prevented Nasuti
from obtaining discovery about any person who played a role in his termination. Walmart states
that it has identified the two individuals who made the termination decision, Artie Wardell and
Kacie Hall. Nasuti's speculation that Walmart is hiding something about his termination is not
enough to sanction Walmart for some unspecified discovery violation. He does not make clear
what documents or information the Court should order be provided based on the reference to the
Insider Tmst department in the Straube email of Mareh 2, 2020.
4. Sanctions for Walmart's 2021 "Document Dump"
Nasuti faults Walmart for providing him with 1038 pages of discovery information four
and a half months after the Court issued a Protective Order. Nasuti says the records are
unorganized, contain blackouts, deletions and blank documents. He accuses Walmart's lawyer of
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withholding documents and of trying to hide documents by mixing them in with non-responsive
records.
'
Walmart's lawyer explains that it served the documents as part of its supplemental Rule
26(A)(1) disclosures, which it sent after the discovery reset.
Walmart Bates-stamped the
doeuments and provided Nasuti a list of 16 topics to which the doeuments related. Walmart also
provided Nasuti with an index setting forth by Bates number eaeh document that is responsive to
every one of Nasuti's interrogatories and requests for production. It included a privilege log.
Walmart asserts that any redaetions confonn to the Court's protective order and were
explained in the privilege log provided by Walmart.^ Walmart explained to Nasuti that the blank
documents "represent email attachments of file types that cannot be imaged, such as a website or
html pages or file types of unknown format." Walmart is also unable to view them. Nasuti says
none of this helps him organize the records and that he remains "largely in the dark."
Though the Court sympathizes with the difficulties eneountered by pro se plaintiffs at all
phases of litigation, including discovery, there is no showing that Walmart simply dumped
documents on Nasuti. Rather, Walmart attempted to organize the documents to permit Nasuti to
loeate and identify them. A review of the parties' filings related to Nasuti's Omnibus Motion
shows that Walmart's lawyer is making a concerted effort to work with Nasuti. Walmart has
provided Nasuti with numerous documents of relevant discovery and it does not appear to be
attempting to frustrate Nasuti's discovery efforts. There is no evidence supporting a finding that
Walmart is hiding documents behind its objections, redactions or deletions.
On this record there is no basis for concluding that sanctions are appropriate for the
2021"document dump."
5.
Sanctions/for Administrative Record
Nasuti claims that there should be an "administrative record," or its equivalent, of his
termination. Though Walmart says it produced items such as performance evaluations and
documentation of disciplinary actions, Nasuti wants some sort of a more formal record of his
termination. Walmart's lawyer asserts that there is no sueh thing, and that Walmart has not
concealed any administrative records generated as part ofNasuti's employment termination. (Doe.
82, p. 9.) The Court has no reason to believe otherwise. Nasuti has not shown Walmart is
^ The privilege log attached to Walmart's brief comports with Rule 26(b)(5).
7
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attempting to hide an administrative reeord ofhis termination. The Court carmot sanction Walmart
for failing to provide something that does not exist.
6.
Sanctions for Persormel File
Nasuti believes that Walmart is concealing anything that is complimentary to him in his
personnel file. He assumes that the file must contain glowing reports about him because he was
an "extemal" management hire and Walmart usually hires managers from inside the company.
Walmart's lawyer contends that it has not concealed Nasuti's persormel file and, in fact, has
"produced dozens of documents responsive to Nasuti's request for his persormel information."
(Doc. 82, p. 9). There is no showing that Walmart is concealing complimentary documents from
Nasuti's persormel file, and it is not clear how such documents are related to the termination of
Nasuti's employment.
7. Sanctions for Walmart's Persormel Manual
In response to Nasuti's request for a copy of the Walmart persormel manual, Walmart
responded that it does not have a persormel manual as that term is commonly understood. Nasuti
alleges this is a false statement. He asserts that the Employee Manual is downloaded on an internal
r
server, accessible in each store. Nasuti attaches a copy of what he says is the cover page of an
employee handbook as Exhibit 17 to his Omnibus Motion.
In response, Walmart submitted a declaration of Kacie Hall, who was the Human
Resources Manager for Walmart's Spearfish store.(Doe. 82-3.) She said that Walmart used what
they termed "associate handbooks" until approximately the late 1990s. Such handbooks have not
been issued since Hall started working for Walmart in 2005. Hall avers that Nasuti's Exhibit 17 is
not a Walmart policy or document of any kind. Again, the Court carmot sanction Walmart for
I
failing to produce something that does not exist.
8. Spoilage Sanctions
Nasuti claims that Walmart has either withheld or destroyed surveillance footage that
would contradict a Walmart manager's allegation that Nasuti was always late for work. He says
the footage is the only objective method for proving that he was not late to work.
Walmart responds that no evidence of spoilation exists, and that the footage is not relevant
to his claims in this case because Nasuti was not terminated for being late to work. (Doc. 82, p.
11.) In fact, in response to one of Nasuti's discovery requests, Walmart said it terminated his
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employment "because of his unwillingness to follow instructions and to respond positively to
feedback." (Doc. 78-2, p. 10.)
Nasuti has cited no authority for the proposition that a plaintiff alleging wrongful
termination is entitled to hours, days, weeks or years ofvideo surveillance footage in order to prove
he was never late for work. This Court's independent research did not unearth such a case.
Furthermore, it is not clear how such footage would readily prove whether or not Nasuti was on
time for work. Finally, Nasuti was not fired because he was late for work. The Court will not
sanction Walmart for failing to produce the video surveillance footage.
9.
Nasuti's Lack of Information about his Termination
In support ofthis section of his Omnibus Motion, Nasuti submits a declaration saying that
so much evidence about his termination has been withheld that a fair trial is impossible.(Doc. 78,
pp 28-37.) He alleges that it was not a "simple" wrongful termination; rather, there was a
corporate-wide conspiracy surrounding his firing. He speculates as to who was involved and what
departments had a hand in his termination. He does not believe that Kacie Hall and Ardie Wardell
had the authority to fire him, nor does he believe they were the individuals who fired him even
though Hall and Wardell submitted declarations under oath stating that they fired him and that they
possessed the authority to fire him. (Does. 58-1, 58-2.)
Walmart asserts that it has produced over 1,000 pages ofdocuments in response to Nasuti's
discovery requests, including dozens of documents regarding personnel information. It has
produced hundreds of pages of documents eonceming company policies. The documents were
Bates stamped. Walmart included an index setting forth, by Bates number, each document that is
responsive to every one of Nasuti's discovery requests. It has provided Nasuti with a privilege
log.
Nasuti bears the burden of establishing that the Court should compel Walmart to produce
more information in discovery. See Bayview Loan Servicing, LLC v. Boland,259 F.R.D. 516,518
(D. Colo. 2009)(citing Daiflon, Inc. v. Allied Chemical Corp., 534 F.2d 221 (10th Cir. 1976)
("[A]ppellees had the burden of proving the answer to their interrogatory was indeed
incomplete")). Nasuti must have more than mere supposition, conjecture or speculation that
Walmart is hiding information regarding his firing. There is simply nothing in the record which
suggests that Walmart failed to provide complete and accurate discovery or that it is withholding
unprivileged information that is relevant to Nasuti's discovery requests.
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The Court also notes that there is a limit on the number ofdiscovery requests that the parties
are allowed to make. The attachments to Nasuti's Omnibus Motion show that Walmart objected
to Nasuti's Fourth Set of Interrogatories and his Ninth Set of Requests for Production of
Documents because they exceed the limits provided in this Court's Scheduling Order and Federal
Rule of Civil Procedure 33.^ The Scheduling Order in this case provides in part,"a maximum of
twenty-five (25) interrogatories and twenty-five (25) requests for admission and thirty (30)
requests for production by each party to any other will be allowed." (Doc. 67.) Nasuti did not
request leave to expand the number ofinterrogatories and requests for production. The Court has
not seen all of Nasuti's discovery requests, but if they exceed the number allo,wed then that is one
reason to sustain Walmart's objections to Nasuti's latest discovery requests. Despite its objection,
Walmart responded to some ofthe interrogatories and requests for production.
10. Motion to Strike Walmart's Answer
Finally, Nasuti asks the Court to strike Walmart's answer "due to its extreme and
intentional discovery misconduct, and due to the fact that no other reasonable sanction, cure or
option is available to the Court." (Doc. 78, p. 24.)
Federal
Rule
of Civil Procedure
37(b)(2) authorizes
a
district court to
impose sanctions upon parties who fail to comply with discovery orders. However,dismissal may
be considered as a sanction only if there is: "(1) an order compelling discovery, (2) a willfiil
violation of that order, and (3) prejudice to the other party." Schoffstall v. Henderson, 223 F.3d
818, 823 (8th Cir. 2000). Striking a pleading is an extreme sanction because"'the opportunity to
be heard is a litigant's most precious right and should be sparingly denied.'"Chrysler Corp. v.
Carey, 186 F.3d 1016, 1020 (8th Cir. 1999)(quoting
v. Slaughter, 548 F.2d 770, 773 (8th
Cir. 1977)).
In this case, there is no order compelling discovery, and thus there is no willful violation
of an order. Nasuti's motion to strike Walmart's answer is denied.
IV.
Certifying Interlocutory Appeal
Nasuti argues that this Court erred when it denied his motion for summary judgment. He
-j
wants the Court to certify an interlocutory appeal of that decision. The Court's decision was not
a final and appealable order adjudicating all the claims and rights of the parties. The Court will
' 33 provides in part,"a party may serve on any other party no more than 25 written Interrogatories,
Rule
including all discrete subparts." Fed. R. Civ. P. 33(a)(1).
10
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therefore construe the request as a motion for leave to certify the summary judgment order as final
for interlocutory appeal under 28 U.S.C. § 1292(b).
Section 1292(b) allows a court to certify an order not otherwise appealable for
immediate appeal if it finds "that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). The
Eighth Circuit has held that "[pjermission to allow interlocutory appeals should thus be granted
sparingly and with discrimination." Union Cty., Iowa v. Piper Jajfray & Co., Inc., 525 F.3d 643,
646 (8th Cir. 2008). In this case, the order denying summary judgment does not meet the test
necessary for certification of immediate appeal under 28 U.S.C. § 1292(b). Therefore, the Court
declines to certify the order as final for immediate appeal. Nasuti's request for leave to certify
is denied. Accordingly,
IT IS ORDERED that the Omnibus Motion filed by plaintiff Matt Nasuti, Doc.
78, is granted to the extent that, within twenty days from the date of this Order, Walmart
shall serve a supplemental response to Interrogatory 14 and provide Nasuti with any
unprivileged information in support of the legal and factual bases for affirmative defenses
5,6 and 8. The Omnibus Motion is otherwise denied for the reasons set forth above.
Dated this t^^ay of August,2021.
BY THE COURT:
/rence L. Piersol
United States District Judge
ATTEST;
MATTHEW W.THELl
11
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