United States District Court, S.D. Alabama, Southern Division
CALLIE V.S. GRANADE, District Judge.
This matter is before the court on Defendants' renewed motion for summary judgment, Plaintiff's response and Defendants' reply (Docs. 76, 83, 93); Plaintiff's motion to strike witness affidavits, Defendants' objection and Plaintiff's reply (Docs. 80, 90, 94); Plaintiff's motion to strike renewed motion for summary judgment as to Counts I and II, Defendants' objection and Plaintiff's reply (Docs. 81, 91, 94); and Plaintiff's motion to strike portions of Judge Naman's affidavit and Defendants' objection (Docs. 82, 92). For the reasons stated below, the court finds that Plaintiff's motions to strike should be denied and that Defendants' motion for summary judgment should be granted.
I. Motions to Strike
A. Affidavits of Vonda Sanders and Larry Harris
Plaintiff moves to strike the affidavits of Vonda Sanders (Doc. 77-2) and Larry Harris (Doc. 77-1) on the basis that these individuals were not listed in Defendants' initial disclosures as required by Federal Rule 26(a)(1) and this court's Rule 16(b) Scheduling Order (Doc. 21). Plaintiff argues that she did not have notice that these individuals were likely to have discoverable information that the defendants would use to support their defenses, and they were never otherwise mentioned as potential witnesses. Defendants respond that they have been unable to find a copy of their initial disclosures, but contend that Plaintiff has been aware of these potential witnesses throughout the litigation. Defendants point out that both witnesses are named in the fact section of Plaintiff's amended complaint and Harris was also named in Plaintiff's original complaint. (Doc. 1, ¶ 15; Doc. 24 ¶¶ 13, 27). Plaintiff also submitted exhibits in response to the original summary judgment motion as well as to the current summary judgment motion that mention these witnesses and their involvement in this matter. (eg. Doc. 45-9; Doc. 83-1, ¶¶ 2, 9, 11, 12, 16, 27, 30, 33, 43, 72). Additionally, both witnesses were listed as witnesses in the May 8, 2013, joint pretrial document, with Harris being listed as a potential witness for the plaintiff. (Doc. 56, pp. 33-35). The joint pretrial document also stated "Defendants reserve the right to call any and all witnesses called by the plaintiff." (Doc. 56, p. 35). At no time did Plaintiff object to Defendants' witness list. Plaintiff still lists Harris as a witness in the current joint pretrial document, filed on July 22, 2014. (Doc. 95, pp. 37-38). Defendants also list Sanders as a witness in the current joint pretrial document and there is no indication in that document that the Plaintiff objected to her inclusion. (Doc. 95, pp. 37-38).
Moreover, it is abundantly clear to the court that the plaintiff had to be aware of the names and roles of the individuals on the screening committee since she was interviewed by that committee, and that she knew when she filed this lawsuit that the process and considerations of the committee would be relevant to the issues in the case.
Rule 26(e) places upon litigants an obligation to supplement in a timely manner incomplete or incorrect disclosures "if the additional or correct information has not otherwise been made known to the other parties during the discovery process or in writing." FED. R. CIV. P. 26(e)(1)(A). If a party fails to discharge the said obligation, that party "is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37(c). Although no party has provided a copy of the initial disclosures, the Court will presume that these individuals were not listed by the defendants. However, Plaintiff clearly was aware that both Harris and Sanders were potential witnesses even before she filed her complaint. Additionally, she was on notice by at least May 8, 2013, the date of the first joint pretrial document, that the defendants might call Harris and Sanders as witnesses at trial. While the pretrial document was filed after the close of discovery, Plaintiff did not object to their inclusion as witnesses and had, in fact, proffered Harris as her own witness. The Rule 16(b) Scheduling Order entered in this case expressly states the following:
Any objection to the designation of a witness (whether lay or expert) shall be submitted with the Joint Pretrial Document. Failure to comply shall constitute a waiver of any such objection.
(Doc. 21-1, p. 4, ¶ H (emphasis in original)). Under the circumstances, the court finds that these witnesses were known to the parties during discovery and that even if defendants should have supplemented their disclosures, the error was harmless. Knowing the role these potential witnesses played in the case, Plaintiff chose not to obtain discovery information from them. In addition, the plaintiff has waived any objection to the designation of Harris or Sanders as witnesses. Accordingly, Plaintiff's motion to strike the affidavits of Vonda Sanders and Larry Harris is denied.
B. Counts I and II of Renewed Motion for Summary Judgment
Plaintiff moves to strike defendants' motion as to Counts I and II because she argues that these counts were not addressed in the defendants' first motion for summary judgment, and nothing new has developed in the record of this case, such as additional discovery, that would allow Defendants another opportunity to move for summary judgment. Plaintiff is correct that successive motions for summary judgment are disfavored, see Allstate Finance Corp. v. Zimmerman , 296 F.2d 797, 799 (5th Cir.1961), but a district court has discretion to allow successive motions. See Enlow v. Tishomingo County, Miss. , 962 F.2d 501, 507 (5th Cir.1992). This Court "has broad discretion in controlling its own docket" and is even free to "reconsider a previously denied summary judgment motion even in the absence of new material presented." Enlow , 962 F.2d at 501 n.16) (citations omitted). After receiving the mandate from the Eleventh Circuit, this Court gave defendant permission to file a second motion for summary judgment without limiting the scope of any such motion. (Doc. 73). Plaintiff sought clarification of the Order granting the right to file a second motion for summary judgment, requesting that Plaintiff be allowed to file a motion for summary judgment as well, (Doc 73), which the Court also granted. (Doc. 74). Defendants filed their motion timely. Plaintiff did not file a motion for summary judgment. Plaintiff has not presented any authority to demonstrate that the Court's order permitting the motion was in error. Accordingly, plaintiff's motion to strike the renewed motion for summary judgment as to Counts I and II is denied.
C. Portion of Judge Naman's Affidavit
Plaintiff moves to strike portions of Judge Naman's affidavit as hearsay. The Federal Rules of Evidence define "hearsay" as "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." FED. R. EVID. 801(c). The Court notes that even if the statements are found to be hearsay, the Court may consider hearsay at the summary judgment stage "if the statement could be reduced to admissible evidence at trial' or reduced to admissible form.'" Macuba v. Deboer , 193 F.3d 1316, 1323 (11th Cir.1999) (collecting cases).
The statements at issue here were made to Judge Naman (1) by consultants Tim Roche and Stu Berry about concerns they had about plaintiff and (2) by Karen Trussell describing her impression or understanding of an exchange that occurred between Plaintiff and another employee, Pat Cannedy. (Doc. 77-3, ¶¶ 9-10). The court finds that such statements are not hearsay because they are not offered for the truth of the matter asserted, but to show Judge Naman's mindset or understanding. Whether Roche, Berry and Trussel were truthful in their statements or what precise wording was used is immaterial. What is at issue is whether Judge Naman understood or believed that such comments had been made and acted or based his decisions, at least in part, on his understanding of those comments. It is Judge Naman's perception of what he believes he was told and how that contributed to his evaluation of the plaintiff that is important in this matter. Accordingly, plaintiff's motion to strike portions of Judge Naman's affidavit is denied.
II. Motion for Summary Judgment
This Court previously entered summary judgment in favor of Defendants on all counts. (Doc. 58). Plaintiff appealed, and the Eleventh Circuit affirmed in part and vacated and remanded in part. (Doc. 70). The Eleventh Circuit concluded that Defendants had failed to sufficiently raise in their motion for summary judgment a challenge to Plaintiff's due process and equal protection claims asserted in Counts I and II. (Doc. 70, p. 6). Accordingly the judgment on those Counts was vacated, and they were remanded for consideration by this Court. Additionally, the Eleventh Circuit found that, with regard to Plaintiff's Title VII gender discrimination claim for failure to promote/hire to the Chief Judicial Probation Officer (CJPO) vacancy (asserted in Count III), and Plaintiff's § 1981 claim of retaliation in relation to the CJPO vacancy (asserted in Count V), defendants had not sufficiently stated a legitimate nondiscriminatory reason for their decisions. (Doc. 70, pp. 10-12, 15). Specifically, the Court of Appeals found that because Judge Naman selected Battiste from a group of applicants recommended by the screening committee, and Plaintiff was not among that group, Judge "Naman never had an opportunity to ...