Jackson v. Dollar General Store

Filing 83

MEMORANDUM DECISION denying 67 Motion to Strike untimely pretrial disclosures. Signed by Magistrate Judge Dustin B. Pead on 5/16/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

DEVIN JACKSON,
Plaintiff,

MEMORANDUM DECISION
Case No. 2:11-cv-00726-TC-DBP

v.

District Judge Tena Campbell

DOLLAR GENERAL STORE,

Magistrate Judge Dustin B. Pead

Defendant.

I.

INTRODUCTION

This personal injury matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A).
(Docket Nos. 47; 67.) The Court now considers Defendant’s motion to strike Plaintiff’s
untimely Fed. R. Civ. P. 26(a)(3) pretrial disclosures. (Dkt. No. 67.) For the reasons set forth
below, the Court DENIES the motion.
II.

STATEMENT OF LAW ON PRETRIAL DISCLOSURES

“[A] party must provide to the other parties” certain “information about the evidence that it
may present at trial . . . .” Fed. R. Civ. P. 26(a)(3)(A). Such information includes “the name . . .
of each witness . . . the party expects to present . . . .” Id. 26(a)(3)(A)(i). Such information also
includes “the designation of those witnesses whose testimony the party expects to present by
deposition . . . .” Id. 26(a)(3)(A)(ii). Such information further includes “an identification of each
document or other exhibit . . . the party expects to offer . . . .” Id. 26(a)(3)(A)(iii).

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III.

ANALYSIS OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S
PRETRIAL DISCLOSURES

“Unless the court orders otherwise,” a party “must” make its pretrial disclosures on all other
parties “at least 30 days before trial.” Fed. R. Civ. P. 26(a)(3)(B). Here, the District Court
ordered Plaintiff to file its pretrial disclosures by February 28, 2014. (Dkt. No. 45 at 3)
(consisting of parties’ stipulated to scheduling order.)
However, Plaintiff failed to timely file its pretrial disclosures. Plaintiff emailed the
disclosures to Defendant fifteen days late - on March 15, 2014. (Dkt. No. 67 at 2.) Similarly,
Defendant only received the disclosures via regular mail on March 17, 2014. (Id.)
Plaintiff’s counsel concedes he “mistakenly calendared the pretrial disclosures as being due
30 days prior to trial,” which the Court “originally scheduled for” April 28, 2014. (Dkt. No. 75
at 1.) On April 1, 2014, the District Court rescheduled the trial to August 4, 2014. (Dkt. No.
58.)
Due to Plaintiff’s untimely filing, Defendant moves to strike Plaintiff’s pretrial disclosures
about “medical records, bills, and experts or witnesses” from the trial. (Dkt. No. 67 at 5.) In
other words, Defendant wants to preclude Plaintiff from using “any witnesses or evidence
contained” in the pretrial disclosures. (Id. at 3.) See Fed. R. Civ. P. 37(c)(1) (“If a party fails to
provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to
use that information or witness to supply evidence . . . at a trial, unless the failure was
substantially justified or is harmless.”).
The district court possesses “broad discretion” to determine “whether a Rule 26(a) violation
is justified or harmless . . . .” Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170
F.3d 985, 993 (10th Cir. 1999). The following “factors should guide” a district court’s
“discretion” on the matter: “(1) the prejudice or surprise to the party against whom the testimony
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is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing
such testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness.” Id.
On balance, the Court concludes that Plaintiff committed a “harmless” Fed. R. Civ. P.
26(a)(3) violation. (Dkt. No. 75 at 2.) The Court does not condone Plaintiff’s negligence in
filing untimely pretrial disclosures. However, the Court believes Plaintiff’s counsel committed
“an honest mistake” rather than a “willful” mistake driven by bad faith. (Id. at 1.)
The Court recognizes that Defendant may have suffered some prejudice “in terms of its
ability to prepare for trial . . . .” (Dkt. No. 78 at 3.) However, even Defendant concedes “such
prejudice has been diminished by the subsequent continuance of the trial” to August 4, 2014.
(Id.) Indeed, had Plaintiff timely filed its pretrial disclosures on February 28, 2014, Defendant
would have only had fifty-nine days to review the disclosures before the original April 28, 2014
trial date. But because the District Court extended the trial date to August 4, 2014, Defendant
now has 142 days to review the untimely disclosures Plaintiff filed on March 15, 2014. (Dkt.
No. 75 at 2.)
Under these circumstances, the Court concludes that Defendant can cure any surprise or
prejudice it suffered before the new trial date. See Crawford v. Sandy City Corp., No. 2:11-CV351 TS, 2012 WL 3964994, at *1 (D. Utah Sept. 11, 2012) (unpublished) (refusing to strike
untimely pretrial disclosures, including disclosures about “potential witness[es],” because the
plaintiff still filed the disclosures “more than 30 days prior to trial,” and “any prejudice” the
defendants “might [have] suffer[ed]” could “be cured at or before trial.”).
Based on the analysis above, the Court DENIES Defendant’s motion to strike Plaintiff’s
untimely pretrial disclosures. (Dkt. No. 67.) In so ruling, the Court emphasizes that it limited its
decision to Defendant’s untimeliness argument. Defendant never raised other arguments to

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support striking Plaintiff’s pretrial disclosures. For instance, Defendant never argued that the
evidence identified in the pretrial disclosures constituted inadmissible hearsay. Defendant never
argued that the witnesses identified in the disclosures would provide cumulative testimony.
Therefore, the parties should construe this Court’s ruling as one limited to untimeliness issues.
IV.

ORDERS

For the reasons set forth above, the Court DENIES Defendant’s motion to strike Plaintiff’s
untimely pretrial disclosures. (Dkt. No. 67.)
Dated this 16th day of May, 2014.

By the Court:

Dustin B. Pead
United States Magistrate Judge

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