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Stovall v. Brykan Legends, LLC

United States District Court, D. Kansas

March 4, 2019

GLADYS M. STOVALL, Plaintiff,
v.
BRYKAN LEGENDS, LLC, Defendant.

          ORDER

          JAMES P. O'HARA, U.S. MAGISTRATE JUDGE

         Defendant has filed a motion for sanctions based on plaintiff's failure to timely serve disclosures, specifically, her computation of damages, under Fed.R.Civ.P. 26(a)(1)(A)(iii) (ECF No. 73). Plaintiff itemized her claimed damages in supplemental disclosures on January 25, 2019. Defendant argues this disclosure is prejudicial because it is unable to retake depositions in light of the disclosed information, as discovery is closed and cannot be reopened without disrupting the trial setting of this case.

         Defendant moves this court to preclude plaintiff from entering any damages evidence at trial. Defendant also asks the court to award attorneys' fees, strike plaintiff's third amended complaint, and inform the jury of plaintiff's failure to abide by Rule 26. Although plaintiff did violate Rule 26 with her late disclosure of damages, the court finds the violation was harmless to defendant. The court therefore denies defendant's motion and declines to award any sanctions.

         I. Background

         Plaintiff's complaint alleges that while she was employed at defendant's restaurant, her direct supervisor made ongoing sexually harassing comments and advances to her. Plaintiff's third amended complaint pleads damages for loss of wages; future medical expenses and benefits; and damages for mental anguish, emotional distress, physical injuries, and humiliation.[1] Plaintiff served her Rule 26(a)(1)(A) initial disclosures on January 3, 2018 (ECF No. 14, 73-1). These disclosures, however, did not include a computation of damages. The court entered a scheduling order on January 10, 2018 (ECF No. 17). Later, upon plaintiff's motion, the court extended the discovery period, which extended plaintiff's Rule 26 disclosure deadline until September 28, 2018. Plaintiff untimely disclosed her witnesses on October 8, 2018, designating Dr. Donald Peghee as an expert witness. On October 12, 2018 plaintiff served supplemental Rule 26(e)(1) disclosures but again did not include any computation of damages (ECF Nos. 45, 73-2).[2]

         The court held a pretrial conference on January 18, 2019 and indicated that, given the state of the record, defendant might later file a motion under Fed.R.Civ.P. 37(c)(1) to prevent plaintiff from introducing any evidence of the dollar amounts of lost wages and medical expenses and benefits (see ECF No. 69 at 13-15). On January 25, 2019, plaintiff served her second supplemental Rule 26(a)(1) disclosures (ECF Nos. 67, 73-3). Those disclosures finally did include computations for (1) lost wages; (2) medical bills; (3) attorneys' fees, costs, and expenses; and (4) emotional distress, pain and suffering, and humiliation.

         Defendant argues that the late damages disclosure gave defendant “no chance to make informed discovery decisions to address these now and new claims directed against [it].”[3] Defendant also objects to the lack of supporting documentation for the supplemental disclosures, including a lack of medical bills and medical records; the inclusion of Dr. Peghee in the computation of medical bills; and plaintiff's statement of time offered as computation of damages for attorneys' fees, costs, and expenses.

         II. Analysis

         a. Rule 26 Requirements

         Under Fed.R.Civ.P. 26(a)(1)(A)(iii), the parties are required to disclose their claimed damages:

A party must, without awaiting a discovery request, provide to other parties a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered.

Fed. R. Civ. P. 26(e) requires supplemental or corrected disclosures “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or as ordered by the court.”

         The court must first determine if plaintiff's disclosures were untimely. Plaintiff concedes that her disclosure was delayed.[4] Plaintiff's supplemental disclosures were served on October 12, 2018, and as earlier indicated they did not include the computation of damages. Presumably in response to the court's comments at the January 18, 2019 pretrial conference, plaintiff served second supplemental disclosures on January 25, 2019, nearly a month after the close of discovery.

         The mandatory and supplemental disclosure requirements exist to allow the parties to make “informed decisions about the discovery necessary to address the specific claims directed against that party, and to prepare for trial.”[5] Accordingly, the parties should not take the disclosure deadlines lightly and they should not wait for the court to direct compliance with deadlines. The court finds that plaintiff violated Rule 26(a)(A)(1)(iii) by failing to disclose the computation of damages until the court directed her to do so at the pre-trial conference.

         b. Harmlessness Analysis

         If a party fails in its duty to disclose under Rule 26, Rule 37(c)(1) instructs that the party “is not allowed to use that information or witness to supply evidence on a motion, at hearing, or at a trial, unless the failure was substantially justified or is harmless.” The court has broad discretion to determine whether the violation is justified or harmless.[6] Although the court “need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose, ”[7] the court should be guided by the following factors: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability to cure any prejudice; (3) the potential for trial disruption if the testimony is allowed; and (4) the erring party's bad faith or willfulness.[8] The alleged Rule 26 violator bears the burden to demonstrate “substantial justification or the lack of harm.”[9] If the court finds that the violation is not justified or harmless, the court may also impose additional sanctions; it “(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Fed.R.Civ.P. 37(b)(2)(A)(i)-(vi).”[10]

         Prejudice ...


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