Veater et al v. Brooklane Apartments et al

Filing 106

MEMORANDUM DECISION AND ORDER granting 96 Motion to Strike 85 Supplemental MEMORANDUM in Opposition; denying 98 Motion to Consider. Signed by Magistrate Judge Paul M. Warner on 2/14/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MAURINE VEATER, DONNA SMITH,
and GLENNA USHER,

MEMORANDUM DECISION
AND ORDER

Plaintiffs,
v.

Case No. 2:11-cv-487-PMW

BROOKLANE APARTMENTS, LLC;
RONALD L. DAVIS; DAVIS BROTHERS
REALTY; DAVIS BROTHERS
CONSTRUCTION; and STAN J. DAVIS,
Defendants.

Magistrate Judge Paul M. Warner

All parties in this case have consented to having United States Magistrate Judge Paul M.
Warner conduct all proceedings, including entry of final judgment, with appeal to the United
States Court of Appeals for the Tenth Circuit. 1 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
Before the court are (1) Brooklane Apartments, LLC; Ronald L. Davis; Stan J. Davis; and Davis
Brothers Construction’s (collectively, “Defendants”) motion to strike Maurine Veater, Donna
Smith, and Glenna Usher’s (“Ms. Usher”) (collectively, “Plaintiffs”) supplemental memorandum
in opposition to Defendants’ motion for partial summary judgment on all claims brought by Ms.
Usher’s Estate; 2 and Plaintiffs’ motion for the court to consider the same supplemental

1

See docket no. 12.

2

See docket no. 96.

memorandum. 3 Also before the court is (2) Plaintiffs’ request for a stay under rule 56(d) of the
Federal Rules of Civil Procedure of Defendants’ motion for partial summary judgment on all
claims brought by Ms. Usher’s Estate. The court has carefully reviewed the written memoranda
submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United
States District Court for the District of Utah, the court has concluded that oral argument is not
necessary and will determine the motions on the basis of the written memoranda. See DUCivR
7-1(f).
RELEVANT BACKGROUND
On September 9, 2013, Defendants filed a motion for partial summary judgment on all
claims brought by Ms. Usher’s Estate (“Motion”). 4 Plaintiffs filed their memorandum in
opposition to the Motion on October 10, 2013. 5 In that memorandum, Plaintiffs requested a stay
of the Motion, pursuant to rule 56(d), until the court ruled on Plaintiffs’ previously filed motion
for a court order for the release of certain medical records (“Medical Records”). 6 On October
25, 2013, this court issued an order denying Plaintiffs’ motion for a court order for the release the
Medical Records. 7 Defendants then filed their reply memorandum on the Motion on November
1, 2013. 8
3

See docket no. 98.

4

See docket no. 62.

5

See docket no. 67.

6

See docket no. 42.

7

See docket no. 73.

8

See docket no. 76.
2

On November 26, 2013, without leave of court, Plaintiffs filed a supplemental
memorandum in opposition to the Motion. 9 In that memorandum, Plaintiffs indicated that they
had previously requested a stay of the Motion under rule 56(d) because they needed the Medical
Records to adequately oppose the Motion. Plaintiffs further indicated that, soon after the court
denied their motion for an order to produce the Medical Records, they contacted the facility that
possessed the Medical Records and learned for the first time that Ms. Usher’s daughter could
sign a consent form for the release of the portion of the Medical Records related to Ms. Usher.
Ms. Usher’s daughter signed the consent form and obtained the records. Soon after obtaining
those records, Plaintiffs forwarded the records to Defendants. Plaintiffs also informed
Defendants that they would be supplementing their response to the Motion. All of this
presumably occurred during late-October or November 2013, well after the expiration of the
August 1, 2013 fact discovery deadline in this case. 10 Along with their supplemental
memorandum, Plaintiffs included the portion of the Medical Records obtained by Ms. Usher’s
daughter (collectively, “Memorandum and Medical Records”).
ANALYSIS
I. Defendants’ Motion to Strike and Plaintiffs’ Motion to Consider
In these two motions, Defendants seek to have the Memorandum and Medical Records
stricken, and Plaintiffs seek to have the court consider the Memorandum and Medical Records in
ruling on the Motion. For the following reasons, the court concludes that the Memorandum and
Medical Records should be stricken.
9

See docket no. 85.

10

See docket no. 38.
3

First, as noted by Defendants, Plaintiffs failed to obtain leave of court prior to filing the
Memorandum and Medical Records. Civil rule 7-1(b)(2)(A) of the Rules of Practice for the
United States District Court for the District of Utah allows for the filing of a memorandum in
opposition to a motion for summary judgment and a reply memorandum in support of a motion
for summary judgment. See DUCivR 7-1(b)(2)(A). The rule further provides that “[n]o
additional memoranda will be considered without leave of court.” Id. Plaintiffs argue that they
complied with that rule by filing their motion for the court to consider the Memorandum and
Medical Records, which was filed after they filed the Memorandum and Medical Records. The
court is not persuaded by that argument. In the court’s view, rule 7-1(b)(2)(A) contemplates
obtaining leave of court prior to filing an additional or supplemental memorandum. See, e.g.,
Andersen v. Homecomings Fin., LLC, No. 2:11-cv-332-TS, 2011 U.S. Dist. LEXIS 65897, at
*17-18 (D. Utah June 20, 2011) (striking sur-reply memorandum when party failed to obtain
leave of court prior to its filing).
Second, the court concludes that the Memorandum and Medical Records should be
stricken because the late production of the Medical Records was neither substantially justified
nor harmless. See Fed. R. Civ. P. 37(c)(1). In this case, Plaintiffs failed to provide any
computation of damages in their initial disclosures with respect to Ms. Usher. Further,
Defendants sent discovery requests to Plaintiffs specifically requesting information and
supporting documentation about the nature and amount of their damages. Plaintiffs responded
by indicating that their damages were incalculable emotional distress damages. Plaintiffs further
responded by asserting that all of the documents supporting their claims were included in their
initial disclosures. In addition, when Defendants inquired about whether the discovery responses
4

relating to Ms. Usher’s claims were complete, Plaintiffs indicated that they did not have any
additional documents or information to provide on behalf of Ms. Usher. Subsequently, after the
expiration of the fact discovery deadline, Plaintiffs produced the Medical Records, which appear
to support Ms. Usher’s claims and alleged damages.
Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure provides that
a party must, without awaiting a discovery request, provide to the
other parties . . . a computation of each category of damages
claimed by the disclosing party--who must also make available for
inspection and copying as under Rule 34 the documents or other
evidentiary material, unless privileged or protected from
disclosure, on which each computation is based, including
materials bearing on the nature and extent of injuries suffered.
Fed. R. Civ. P. 26(a)(1)(A)(iii). In addition, rule 37(c)(1) provides:
[i]f 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.
Fed. R. Civ. P. 37(c)(1).
Pursuant to rule 37(c)(1), the court will not allow the late disclosure of the Medical
Records because Plaintiffs’ failure to provide them in a timely fashion was neither substantially
justified nor harmless. See id.
With respect to whether Plaintiffs’ late disclosure of the Medical Records was
substantially justified, the court concludes that it was not. Plaintiffs acknowledge that they had
always intended to prove Ms. Usher’s allegations and damages by way of the Medical Records.
However, Plaintiffs never indicated those intentions in either their initial disclosures or the
responses to Defendants’ discovery requests. Furthermore, Plaintiffs did not explore all avenues
5

for obtaining the Medical Records prior to the expiration of the discovery deadline. While it is
true that Plaintiffs moved for a court order for release of the Medical Records, they had to
consider the possibility that the court would not issue such an order. Instead of simply waiting
for the court to issue that order, the court has determined that Plaintiffs were under a duty to
explore an alternative option for obtaining the Medical Records, which was clearly available.
Had they pursued that option, they could have obtained the Medical Records before the
expiration of the discovery deadline and provided the Medical Records to Defendants in a timely
fashion.
The court also concludes that Plaintiffs’ late disclosure of the Medical Records is not
harmless. Plaintiffs’ untimely disclosure of the Medical Records has prejudiced Defendants. As
previously noted, the fact discovery deadline has passed. As a result, Defendants are left without
the opportunity to subpoena the Medical Records, depose Ms. Usher’s medical providers
referenced in the Medical Records, or obtain an expert to review the Medical Records.
Consequently, Defendants cannot adequately rebut the arguments and information contained in
the Memorandum and Medical Records.
For those reasons, the court concludes that the Memorandum and Medical Records
should be stricken. The court will not consider the Memorandum and Records in ruling on the
Motion. Accordingly, Defendants’ motion to strike the Memorandum and Medical Records is
granted, and Plaintiffs’ motion for the court to consider the Memorandum and Medical Records
is denied.

6

II. Plaintiffs’ Rule 56(d) Request
As a final matter, the court addresses Plaintiffs’ request under rule 56(d) for a stay of the
Motion pending production of the Medical Records. In light of the court’s denial of Plaintiffs’
motion for an order for the release of the Medical Records, as well as the court’s decision to
strike the Memorandum and Records, Plaintiffs’ rule 56(d) request has been rendered moot.
CONCLUSION AND ORDER
In summary, IT IS HEREBY ORDERED:
1.

Defendants’ motion to strike the Memorandum and Records 11 is GRANTED, and
Plaintiffs’ motion for the court to consider the Memorandum and Records 12 is
DENIED. The court will not consider the Memorandum and Records in ruling on
the Motion.

2.

The Clerk of the Court is directed to strike the Memorandum and Records 13 from
the docket in this case.

3.

Plaintiffs’ request for a stay of the Motion under rule 56(d) is MOOT.

IT IS SO ORDERED.
DATED this 14th day of February, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge
11

See docket no. 96.

12

See docket no. 98.

13

See docket no. 85.
7