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Tucker v. Orkin, LLC

United States District Court, N.D. Alabama, Middle Division

April 26, 2018

ORKIN, LLC, Defendant.


          VIRGINIA EMERSON HOPKINS United States District Judge

         I. Introduction

         Plaintiffs Terry and Myra Tucker initiated this termite action against Defendant Orkin, LLC (“Orkin”) in the Circuit Court of Marshall County on May 26, 2017. (Doc. 1-1 at 2).[1] Orkin removed Plaintiffs' case to federal court on June 20, 2017. (Doc. 1).

         Pending before the Court is Orkin's Motion To Exclude Plaintiffs' Experts (doc. 19) (the “Motion”) filed on March 8, 2018. Orkin primarily seeks to preclude Plaintiffs' expert witnesses from participating in this case on the basis that their disclosure reports were not timely provided under Rule 26(a)(2)(B) and the Scheduling Order. (Doc. 19 at 1-2). Alternatively, in the event that this Court permits Plaintiffs to proceed with their untimely expert disclosures, Orkin asks for a four-week time period “for completion of all the steps involved in the preparation of rebuttal expert reports.” (Doc. 19 at 2). While Plaintiffs oppose the central relief requested by Orkin, they do not oppose the alternative measure. (Doc. 19 at 1, 8). The Motion is GRANTED as to the alternative relief sought and otherwise is TERMED as MOOT.

         II. Standard

         Rule 37(c)(1) provides in part:

If 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.

Fed. R. Civ. P. 37(c)(1) (emphasis added). “Whether to exclude a party's proposed witness in this circumstance is within the discretion of the Court.” Collins v. Beazer Homes USA, Inc., 334 F.Supp.2d 1365, 1371 (N.D.Ga. 2004) (citing Port Terminal & Warehousing Co. v. John S. James Co., 695 F.2d 1328, 1335 (11th Cir. 1983)); see also Macklin v. Singletary, 24 F.3d 1307, 1311 (11th Cir. 1994) (“[T]he abuse of discretion standard allows ‘a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.'” (quoting United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989), clarified on other grounds by United States v. Toler, 144 F.3d 1423, 1425 & n.3 (11th Cir. 1998))); Kern v. TXO Prod. Corp., 738 F.2d 968, 971 (8th Cir. 1984) (“The very concept of discretion presupposes a zone of choice within which the trial courts may go either way.”) (Kern cited with approval in Kelly).

         As the Eleventh Circuit has explained the scope of a district court's discretion to exclude untimely disclosed expert witnesses:

The only arguments the Bearints advance to support a finding of abuse of discretion is that despite the untimely proffer, Cosco knew of the report's existence after the deadline for submission of both initial and rebuttal expert reports but before trial, and that excluding the report greatly prejudiced them. Fed. R. Civ. P. 26(a)(2)(C) provides clear deadlines for the submission of expert reports to the court, and Fed.R.Civ.P. 37(c)(1) gives district courts discretion to exclude untimely submissions. Coastal Fuels Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 202-03 (1st Cir. 1996), cert. denied, 519 U.S. 927, 117 S.Ct. 294 (excluding testimony of rebuttal witnesses because party did not comply with Fed.R.Civ.P. 26(a)(2)(C)); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105-06 (9th Cir. 2001). Although the district court may have had discretion to admit an untimely report, see Grimm v. Lane, 895 F.Supp. 907, 913 (S.D. Ohio 1995) (admitting untimely expert evidence because no risk of unfair surprise existed), it did not abuse its discretion to exclude it as untimely in the circumstances under which the Bearints offered it. The Bearints waited until trial, about four months after the report's publication, to submit it. Given the wide latitude the district court has to exclude untimely submissions, we cannot say that it abused its discretion to exclude this report.

Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1348-49 (11th Cir. 2004) (emphasis added).

         III. Procedural History

         On August 21, 2017, the Court entered a Scheduling Order (doc. 9) in this lawsuit based upon the suggested deadlines contained in the Report of Parties' Planning Meeting (doc. 8) filed on August 17, 2017. The Scheduling Order provided Plaintiffs with the deadline of November 17, 2017, to disclose any expert witnesses “including a complete report under Rule 26(a)(2)(B) from any specially retained or employed expert[.]” (Doc. 9 at 1). December 15, 2017, was Orkin's corresponding expert disclosure deadline. Id.

         On December 13, 2017, the parties filed a Joint Motion To Continue Pre-Trial Deadlines (doc. 10) (the “Joint Motion”). In their Joint Motion, the parties sought a 90-day extension of the “deadlines in sections I.A and III.” (Doc. 10 at 2 ¶ 7). On December 13, 2017, the Court entered the following margin order:

TEXT ORDER GRANTING 10 Joint MOTION to Continue Pre-Trial Deadlines filed by Orkin, LLC. All unexpired deadlines are hereby extended for 90 days. Discovery due by 5/1/2018. Dispositive Motions due by 5/31/2018. Signed by Judge Virginia ...

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