Lone Star Chapter Paralyzed Veterans of America et al v. City of San Antonio et al

Filing 153

ORDER DENYING 151 Motion for Reconsideration. Signed by Judge Nancy Stein Nowak. (tm)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

SKYEWARD BOUND RANCH,
Plaintiff,
v.
CITY OF SAN ANTONIO,
Defendant.

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CIVIL ACTION NO.
SA-10-CV-0316 XR

ORDER DENYING MOTION FOR RECONSIDERATION (docket entry 151)
The matter before the Court is plaintiff’s motion to reconsider the Order (docket entry 150)
granting defendant’s motion to exclude expert testimony of two witnesses, Chris Canard and Nick
Farley (docket entry 151). The motion is opposed (docket entry 152).
Standard
The Federal Rules of Civil Procedure do not recognize a “motion for reconsideration” by
that name and plaintiff did not provide a rule of procedure under which it urges its motion. A court
may reconsider an interlocutory order pursuant to Federal Rule of Civil Procedure 54(b). While
the court has authority to reconsider and reverse its decision for any reason it deems sufficient,1 this
Court has consistently utilized the standards of Federal Rule of Civil Procedure 59 to inform its
analysis of a reconsideration request.2 To prevail on a Rule 59 motion, the movant must show at
1

Saqui v. Pride Cent. Am., LLC, -- F.3d ---, 2010 WL 184252 (5th Cir. Jan. 21, 2010)
(quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir.1990)).
2

See e.g. Vladmir Ltd. v. Pac. Parts Supply Co., No. SA-08-CV-819-XR, 2009 WL
4110288, at *2 (W.D. Tex. Nov. 20, 2009); see also Dos Santos v. Bell Helicopter Textron, Inc.
Dist., No. 4:06-CV-292-Y, 2009 WL 2474771, at *3 (N.D. Tex. Aug. 13, 2009) (looking to Rule
59 as a guide to reconsider an interlocutory order); T-M Vacuum Prods., Inc. v. TAISC, Inc., No.
C-08-309, 2008 WL 2785636, at *2 (S.D. Tex. July 16, 2008) (same); Sky Techs. LLC v. SAP AG,
No. 2:06-CV-440 (DF), 2008 WL 2775487 (E.D. Tex. July 15, 2008) (same).

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least one of the following: (1) an intervening change in controlling law; (2) new evidence not
previously available; or (3) the need to correct a clear or manifest error of law or fact or to prevent
manifest injustice.3 Plaintiff’s motion appears to be premised on the argument that reconsideration
is necessary to correct an error of law or fact, or to prevent manifest injustice.
Analysis
With respect to proposed witness Canard, plaintiff essentially argues that it provided
defendant with all the disclosures required by Rule 26(a)(2)(C). Whether or not plaintiff was
required to provide a full expert report under Rule 26(a)(2)(B) with respect to Canard, at a
minimum plaintiff had an obligation under Rule 26(a)(2)(C) to disclose the subject matter of
Canard’s testimony and a summary of the facts and opinions to which he will testify. Plaintiff
states that it supplied this information on December 10, 2010. I have reviewed the documents
submitted by plaintiff on that date and find that other than a statement regarding Canard’s
education, design and marketing credentials, and his prior experience as an expert in North
Carolina litigation, the only statement which bears on his “facts and opinions” is the following:
“He will testify regarding its [the sweepstakes program’s] operation as well as damages in this
case.” 4 This does not satisfy the disclosure requirement and there is no manifest injustice in the

3

In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002).

4

Docket entry no. 74, Exh. A. The disclosure concerning Canard was included in a letter
from plaintiff’s counsel to defendant’s attorneys. The letter forwarded a brief statement regarding
witnesses Fiechter and Canard, as well as a 10 page order granting a preliminary injunction in
April 2008, in a state court case in North Carolina. The entire disclosure for Canard is as follows:
Chris Canard is an expert in the creation of technology based marketing systems.
Graduating from The University ofTexas at Arlington in 1993 with a degree in
Computer Science and Engineering, Mr. Canard went on to design and implement
marketing systems for a number of large corporations. Mr. Canard founded Hest
Technologies, a company whose focus is to provide advanced marketing systems

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Court enforcing plaintiff’s disclosure obligation under the scheduling order and the rules of
procedure by excluding a witness for whom the disclosure is inadequate.
With respect to Farley, plaintiff again suggests that its disclosures were adequate under the
rules. Plaintiff states in its motion to reconsider: “All requisite disclosures for expert witnesses
Farley and Canard have been provided to Defendants upon service of the original Complaint on
April 22, 2010 in the present action.” 5 The disclosures which plaintiff identifies as responsive to
Rule 26(a)(2)(B) consists of letters to an attorney in El Paso dated July 27, 2007 and January 25,
2008 in which Farley analyzes various components of the Apex Sweepstakes System and the Hest
Prepaid Planet Sweepstakes Management System.6 Rule 26(a)(2)(B) required plaintiff to provide a
report specific to this litigation, which included:
(i) a complete statement of all opinions the witness will express and the basis and

and capabilities to small non profits and for profit business concerns.
Chris Canard was accepted as an expert witness and testified to the operation of the
Hest Technologies' Sweepstakes Marketing System in Superior Court in the State of
North Carolina in which the Court issued an injunction on behalf of Hest
Technologies against the state ending any further enforcement action against the
operators of the Hest Technologies' Sweepstakes Marketing System. The injunction
is attached hereto.
Chris Canard is the designer of Hest Technologies' Sweepstakes Marketing System,
authorized by the Texas Alcoholic Beverage Commission as a mechanism to
conduct sweepstakes within TABC licensed establishments. The Sweepstakes
program is the Hest Prepaid Planet sweepstakes Management System. He will
testify regarding its operation as well as damages in this case.
Mr. Canard is not specially employed or retained to provide testimony in this case,
nor do his duties as a company employee regularly involve giving expert testimony.
5

Docket entry 151, para. 2 on p. 2.

6

The January 2008 letter was attached to docket entry 4, Additional Exhibits in support of
the Original Complaint, as exhibit 1. Both documents are also attached to docket entry 29, second
amended complaint, exhibits 11 and 12.

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reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
case.
Regardless of whether the two letters were drafted in the context of litigation that might be related
to the matter before this Court, the documents on which the plaintiff relies as being appropriate
disclosure fail to address any of the categories of information required by Rule 26(a)(2)(B). Nor
do any of the attachments to plaintiff’s motion to reconsider satisfy Rule 26(a)(2)(B) requirements.
Whether plaintiff argues that the disclosures satisfy Rule 26(a)(2)(B) or that enforcement of the
expert disclosure rule would work “manifest injustice,” the Court rejects both arguments. Plaintiff
failed to provide the necessary disclosure with respect to its proposed witness and the
consequences of that failure are exclusion of its proposed expert. Application of the disclosure rule
here is neither unfair nor “manifest injustice.”
For the reasons stated above, the motion to reconsider as to both witnesses (docket entry
151) is DENIED.
SIGNED on June 30, 2011.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

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