Molina v. Collin County, Texas et al
MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Plaintiff's Motion for Leave to Supplement Summary Judgment Evidence (Dkt. 48 ) is hereby GRANTED. It is further ORDERED that Defendants' Objections and Motion to Strike Plaintiff's Improper Summary Judgment Evidence (Dkt. 44 ) is hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 10/25/2017. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
GUILLERMO MURILLO MOLINA
COLLIN COUNTY, TEXAS; ROBERT
Civil Action No. 4:17-CV-00017
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Guillermo Murillo Molina’s Motion for Leave to
Supplement Summary Judgment Evidence (“Motion for Leave”) (Dkt. #48) and Defendants Collin
County and Deputy Robert Langwell’s Objections and Motion to Strike Plaintiff’s Improper
Summary Judgment Evidence (“Motion to Strike”) (Dkt. #44). After reviewing the relevant
pleadings and motions, the Court grants Plaintiff’s Motion for Leave and denies Defendants’
Motion to Strike.
This is an excessive force case arising from a dog bite Plaintiff sustained from a Collin
County police canine under the control of Deputy Langwell. As a result of the incident, Plaintiff
alleges Defendants violated 42 U.S.C. § 1983, and Defendant Collin County violated the Texas
Tort Claims Act. On August 18, 2017, Defendants each filed Motions for Summary Judgment
(Dkt. #30; Dkt. #31). On September 15, 2017, Plaintiff filed his responses (Dkt. #37; Dkt. #38).
Subsequently, Defendants filed their Motion to Strike (Dkt. #44) arguing Plaintiff’s expert reports
attached to his summary judgment responses constitute unauthenticated, inadmissible, and
improper summary judgment evidence. On October 2, 2017, Plaintiff filed his Motion for Leave
(Dkt. #48) requesting the Court allow Plaintiff the opportunity to supplement his expert reports
with authenticating declarations. As a result, Defendants filed their response (Dkt. #49) on
October 3, 2017, and Plaintiff filed his reply (Dkt. #50) on October 5, 2017.
Motion for Leave
Plaintiff seeks leave to supplement his expert reports with declarations authenticating the
reports submitted by Plaintiff’s experts. If granted, Plaintiff contends Defendants will not suffer
any prejudice or surprise. Conversely, Defendants claim granting leave “smacks of ambush” and
allows Plaintiff to “effectively sandbag Defendants.”
Expert reports that are unauthenticated or unverified may not be considered on summary
judgment. See FED. R. CIV. P. 56(e); Winstead v. Georgia Gulf Corp., 77 F. App’x 267, 271 (5th
Cir. 2003). However, when a party attaches unsworn expert reports as summary judgment
evidence, such deficiencies are curable by the filing of the experts’ sworn declarations. See Greene
v. Toyota Motor Corp., No. 3:11-cv-207-N, 2014 WL 12575716, at *3 n.5 (N.D. Tex. June 2,
2014); Straus v. DVC Worldwide, Inc., 484 F. Supp.2d 620, 634 (S.D. Tex. 2007).
Here, in response to Defendants’ Motions for Summary Judgment (Dkt. #30; Dkt. #31),
Plaintiff submitted the expert report of Dr. Michael Lyman (“Lyman”) and expert report and
supplemental report of Ernest Burwell (“Burwell”). However, Plaintiff failed to authenticate such
reports making them improper evidence for the Court to consider in its summary judgment
Plaintiff attempts to cure these deficiencies by supplementing the reports with
declarations by Lyman and Burwell authenticating their reports. Seeing that these declarations
cure such deficiencies in the reports, the Court finds granting Plaintiff’s Motion for Leave
appropriate.1 Exxon Mobil Corp. v. U.S., 108 F. Supp.3d 486, 530 n.33 (S.D. Tex. 2015); Straus,
484 F. Supp.2d at 634.
Although Defendants argue granting leave “smacks of ambush” and results in
“sandbagging,” the Court is unpersuaded. The crux of Defendants’ arguments focus on the expert
reports themselves, not the submission of declarations authenticating the expert reports. In fact,
Defendants fail to raise any arguments as to how granting leave allowing for such declarations
results in prejudice or surprise. Allowing Plaintiff to supplement with authenticating declarations
does not change the substance of the evidence. Instead, the declarations cure an evidentiary defect.
As such, the Court finds Defendants will not suffer surprise or prejudice from the Court granting
Motion to Strike
Defendants argue Plaintiff’s reports of Burwell and Lyman are unauthenticated and
therefore inadmissible. As discussed above, such deficiencies in Plaintiff’s expert reports are
cured by Plaintiff’s subsequent declarations authenticating the reports. Defendants further argue
Plaintiff’s expert reports are inadmissible because they are conclusory and offer unsupported
opinions and incorrect legal conclusions. The Court finds such arguments untimely.
On April 12, 2017, the Court entered a Scheduling Order (Dkt. #11) setting the deadline to
object to a party’s expert witnesses as “six weeks after disclosure of an expert is made.” Here,
Plaintiff disclosed Burwell to Defendants on July 6, 2017. See Dkt. #47 at p. 1 n.1. As such,
Pursuant to Local Rule CV-7, a party moving “for leave to file a document should [file the motion] separately and
immediately before the document for which leave is sought.” LOCAL RULE CV-7(k). Rule CV-7 applies to those
documents which stand independent of other documents. Stated differently, Rule CV-7 controls documents that by
themselves are sufficient to be filed with the Court. Here, Plaintiff seeks to supplement his responses to Defendants’
Motions for Summary Judgment with authenticating declarations. These declarations are not documents which are
independently filed with the Court. In fact, filing such declarations separately and independently would constitute a
deficient filing. As such, Rule CV-7 is inapplicable, and the Court does not take it into consideration in determining
whether to grant or deny Plaintiff’s Motion for Leave.
Defendants had until August 17, 2017, six weeks from Plaintiff’s disclosure, to object to Burwell.
Defendants did not file their Motion to Strike until September 28, 2017, after the six-week deadline
passed. Further, Plaintiff disclosed Lyman on June 9, 2017. See Dkt. #13; Dkt. #48, Exhibit 1 at
p. 3. As such, Defendants had until July 21, 2017, six weeks from Plaintiff’s disclosure, to object
to Lyman. Defendants did not file their Motion to Strike until September 28, 2017, after the sixweek deadline passed. Accordingly, such arguments by Defendants are untimely.
It is therefore ORDERED that Plaintiff’s Motion for Leave to Supplement Summary
Judgment Evidence (Dkt. #48) is hereby GRANTED.
It is further ORDERED that Defendants’ Objections and Motion to Strike Plaintiff’s
Improper Summary Judgment Evidence (Dkt. #44) is hereby DENIED.
SIGNED this 25th day of October, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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