Archer-Daniels-Midland Company v. M/V AZUR, her engines, boilers, tackle, appurtenances, etc., in rem

Filing 43

ORDER re: Pretrial Objection(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ARCHER-DANIELS-MIDLAND
COMPANY; dba ADM GRAIN
COMPANY,
Plaintiffs,
VS.
M/V AZUR, et al,
Defendants.

May 11, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:16-CV-341
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ORDER

Pending before the Court is a pretrial objection filed by counsel for the vessel,
M/V AZUR (“Azur”). Azur has invoked Federal Rule of Civil Procedure 37(c)(1) and
argued that the plaintiff, Archer-Daniels-Midland Company d/b/a ADM Grain Company
(“ADM”), should not be allowed to call David Dennis at trial because ADM did not
disclose Dennis as a potential witness as required by Federal Rule of Civil Procedure 26.
At a hearing on the objection, counsel for ADM candidly, and commendably, admitted
that he did not disclose Dennis and that the omission was an oversight for which he had
no excuse. ADM does not concede that exclusion of Dennis’s testimony is warranted,
however, and instead argues that the omission was harmless because Dennis’s name
“appears 156 times on 118 different pages” of correspondence that ADM produced to
Azur during discovery. To support its argument, ADM points to the Advisory Committee
Notes regarding Rule 37, which discourage the imposition of “unduly harsh penalties” for

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certain omissions, including “the inadvertent omission from a Rule 26(a)(1)(A)
disclosure of the name of a potential witness known to all parties[.]”
The Court, again, appreciates ADM’s counsel’s candor. But, under these
circumstances, exclusion of Dennis’s testimony is appropriate. In relevant part, Federal
Rule of Civil Procedure 37(c)(1) provides as follows:
If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), 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.
In evaluating whether the failure to disclose is harmless, a court looks to four
factors: (1) the importance of the evidence; (2) the prejudice to the opposing party from
including the evidence; (3) the possibility of curing any prejudice by granting a
continuance; and (4) the explanation for the party’s failure to disclose. Primrose
Operating Co. v. National American Insurance Co., 382 F.3d 546, 563–64 (5th Cir.
2004). Here, those factors weigh in favor of exclusion. ADM intends to call Dennis to
testify “to the existence and content of other grain terminal tariffs, including other dead
berth charges, in the Gulf [of Mexico] region” in order to establish that “such tariffs [are]
to be expected when calling at U.S. grain terminals in the Gulf of Mexico region”—in
effect, that Azur had constructive notice of ADM’s tariff. The Court has reviewed the
voluminous correspondence produced by ADM that contains mentions of Dennis’s name,
and nothing in that correspondence indicates that Dennis was “known to all parties” to be
a potential witness, much less a potential witness on the particular subject of customary
grain terminal tariffs and dead berth charges in the Gulf of Mexico, a topic that borders
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on expert testimony. And, at the hearing on Azur’s objection, Azur’s counsel represented
that Azur’s witnesses are far from Galveston, and indeed far from the United States, a
representation that is not only uncontested by ADM but corroborated by the fact that
Azur is calling all of its witnesses by deposition. It would be unfair to require Azur to
schedule additional depositions of its far-flung witnesses, or barring that to locate
additional witnesses, to counter surprise witness testimony that ADM’s own counsel
admits ADM should have disclosed.
Azur’s objection to the testimony of David Dennis under Federal Rule of Civil
Procedure 37(c)(1) is SUSTAINED.
SIGNED at Galveston, Texas, this 11th day of May, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

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