Madison Boardwalk, LLC v. Omega Commercial Finance Corp. et al

Filing 100

ORDER denying 70 Motion to Strike Expert Witnesses by Defendant Omega Commercial Finance Corp. Signed by District Judge Barbara B. Crabb on 9/4/2014. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MADISON BOARDWALK, LLC,
ORDER
Plaintiff,
13-cv-288-bbc
v.
OMEGA COMMERCIAL FINANCE CORP.,
JON S. CUMMINGS, IV and
VON C. CUMMINGS,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil action, the parties are proceeding to trial on September 29, 2014.
Pursuant to the scheduling order in this case, plaintiff Madison Boardwalk LLC disclosed its
expert witnesses on January 21, 2014. Dkt. #38. The parties stipulated that expert reports
were not required. However, under Fed. R. Civ. P. 26(a)(2)(C), when parties do not file
expert reports they must still disclose the subject matter of the expert’s expected testimony,
as well as a summary of the facts and opinions to which that expert will testify. Defendant
Omega Commercial Finance Corp. has moved to strike plaintiff’s experts on the basis that
plaintiff “entirely failed to provide ‘a summary of the facts and opinions to which the witness
is expected to testify.’” Dft.’s Br., dkt. #70, at 2 (quoting Fed. R. Civ. P. 26(a)(2)(C)).
I am denying this motion for two reasons: (1) defendant Omega forfeited this
argument by waiting more than seven months and until the eve of trial to assert it and (2)

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a review of plaintiff’s January 21 disclosure reveals that it made a good faith effort to provide
the information required by Fed. R. Civ. P. 26. Further, at defendant’s request, plaintiff
supplemented this information with significant additional details between August 1, 2014
and August 7, 2014. Defendant has also deposed all three of plaintiff’s experts. Defendant
gives no specifics on what information it believes is missing from plaintiff’s disclosures or
why it believes it has not yet received the information it needs to prepare a defense.
Defendant also provides no excuse for why it waited so long to bring this motion.
This is the second frivolous motion defendant Omega has filed in recent weeks. If it
continues to file frivolous motions, it may be subject to sanctions from the court.

ORDER
IT IS ORDERED that defendant Omega Commercial Financial Corp.’s motion to
strike plaintiff’s experts, dkt. #70, is DENIED.
Entered this 4th day of September, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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