Beattie v. Skyline Corporation

Filing 62

MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiff's 42 MOTION to Exclude Evidence and/or to Compel Discovery as to Defendants CMH Homes, Inc. and Vanderbilt Mortgage and Finance, Inc.; denying Plaintiffs' reque st for exclusion of any evidence; granting in part the motion, only to the extent it requests costs and fees associated with prosecuting this motion; directing Plaintiffs' counsel to submit by 5/23/2013 a memorandum outlining the fees and costs for prosecuting this motion; denying the remainder of the motion. Signed by Judge Robert C. Chambers on 5/16/2013. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JONATHAN BEATTIE and
HEATHER BEATTIE,
Plaintiffs,
v.

CIVIL ACTION NO. 3:12-2528

SKYLINE CORPORATION, a foreign corporation,
CMH HOMES INC., d/b/a LUV HOMES #760 and
VANDERBILT MORTGAGE AND FINANCE, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ motion to exclude evidence and/or to compel
discovery as to Defendants CMH Homes, Inc. and Vanderbilt Mortgage and Finance, Inc. (ECF
No. 42). In this motion, Plaintiffs state that Defendants1 did not comply with deadlines regarding
disclosure and discovery, and request that Defendants be prohibited from using any information
or witness to supply evidence on a motion, at a hearing, or at trial. Plaintiffs also request that
Defendants be ordered to pay fees and costs for prosecuting this motion and obtaining disclosure
and discovery. Defendants filed a response opposing the motion. ECF No. 54. Magistrate Judge
Cheryl A. Eifert issued an order denying the motion as moot, to the extent that the motion
requested that the Court compel Defendants to produce the disclosures and discovery. ECF No.

1

Although additional defendants are named in this case, “Defendants” as used in this
Memorandum Opinion and Order refers solely to CMH Homes and Vanderbilt Mortgage and
Finance.
1

55. The request was moot because Defendants had already served the requested discovery
responses and disclosures. ECF Nos. 43-46.2
Rule 37(c)(1) of the Federal Rules of Civil Procedure states that “[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.” This District has explained the
burden of satisfying the Rule as follows:
The burden to show justification or harmlessness under Rule 37(c) lies with the
party facing sanctions. [Southern States Rack & Fixture, Inc. v. Sherwin–Williams
Co., 318 F.3d 592, 596 (4th Cir. 2003)] (citing Wilson v. Bradlees of New
England, Inc., 250 F.3d 10, 21 (1st Cir. 2001)). In determining whether that party
has carried its burden, the following factors should be considered: [“](1) the
surprise to the party against whom the evidence would be offered; (2) the ability
of the party to cure the surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the evidence; and (5) the
nondisclosing party’s explanation for its failure to disclose the evidence.[”]
Southern States, 318 F.3d at 597.
Printing Press, Ltd. v. Presstek, Inc., No. 2:08-cv-80, 2009 WL 36505, at *2 (S.D. W. Va. Jan. 6,
2009).
Defendants have shown that their delay in providing Rule 26(a)(1) disclosures was
harmless. Plaintiffs received the disclosures as requested, albeit several months late. Although
the deadline for Rule 26(a)(1) disclosures was set for October 1, 2012, and that deadline was
never extended, a new scheduling order was entered on April 19, 2013. ECF No. 59. With that
new scheduling order, trial was moved from August 27, 2013 to March 25, 2014. Given this
change of dates, no trial was disrupted, and Plaintiffs were not prejudiced in preparing for trial.

2

CMH Homes also filed supplemental responses on April 8, 2013. ECF No. 56.
2

Defendants also meet their burden regarding their written discovery responses.
Defendants provided a rational explanation for why they did not timely file the responses, and
submitted an affidavit in support of this explanation. Furthermore, given the new scheduling
order, Plaintiffs have not been prejudiced by the delay. Therefore, the Court DENIES Plaintiffs’
request for exclusion of any evidence.
Although Defendants explain their failure to timely file responses to Plaintiffs’ discovery
requests, it is somewhat troubling that Defendants do not attempt to explain why they delayed for
several months in providing Rule 26(a)(1) disclosures. The only reason that Plaintiffs ended up
not facing prejudice is because the trial date was reset. The rescheduling of the trial, however,
does not excuse Defendants’ delay. Therefore, the Court GRANTS in part the motion, only to
the extent it requests costs and fees associated with prosecuting this motion. The Court therefore
DIRECTS Plaintiffs’ counsel to submit by May 23, 2013 a memorandum outlining the fees and
costs for prosecuting this motion. The remainder of the motion is DENIED.
Defendants also explain in their response that they have not waived their objections to
Plaintiffs’ written discovery, apparently discussing this issue because of recent conversations
with Plaintiffs’ counsel. Plaintiffs have not stated in any filing thus far that Defendants waived
objections, and so it would be premature for the Court to discuss waiver at this point.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.

ENTER:

3

May 16, 2013