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Wallace Sales & Consulting, LLC v. Tuopu North America, Limited

United States District Court, E.D. Michigan, Southern Division

November 21, 2016

Wallace Sales & Consulting, LLC, Plaintiff/Counter Defendant,
v.
Tuopu North America, Limited, Defendant/Counter Claimant.

          David R. Grand, United States Magistrate Judge

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE DEFENDANT'S EXPERT WITNESS [102]

          Hon. Gershwin A. Drain, United States District Court Judge

         I. Introduction

         On March 2, 2015, Wallace Sales & Consulting, LLC (“Plaintiff”) filed a Complaint and Demand for Trial by Jury against Tuopu North America, Limited (“Defendant”), alleging breach of contract and seeking a declaratory judgment. See Dkt. No. 1. On August 7, 2015, Defendant asserted a counterclaim against Plaintiff for Unjust Enrichment/Quantum Meruit. Dkt. No. 21, pp. 3-4 (Pg. ID No. 506- 07). Plaintiff amended its complaint on August 28, 2015. Dkt. No. 28.

         Presently before the Court is Plaintiff's Motion to Exclude Defendant's Expert Witness, filed on October 19, 2016. Dkt. No. 102. Defendant responded on November 2, 2016, Dkt. No. 111, and Plaintiff replied on November 10, 2016, Dkt. No. 116.

         For the reasons discussed herein, the Court will DENY Plaintiff's Motion to Exclude Defendant's Expert Witness [102].

         II. Legal Standard

         Under Federal Rule of Civil Procedure 37(c)(1), “[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.” Fed.R.Civ.P. 37(c)(1). The Sixth Circuit has interpreted Rule 37(c)(1) to “require[] absolute compliance with Rule 26(a), that is, it ‘mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified.' ” Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (quoting Vance, by & Through Hammons v. United States, 182 F.3d 920 (6th Cir. 1999)).

         “Although exclusion of late or undisclosed evidence is the usual remedy for noncompliance with Rule 26(a) or (e), Rule 37(c)(1) provides the district court with the option to order alternative sanctions ‘instead of' exclusion of the late or undisclosed evidence ‘on motion and after giving an opportunity to be heard.' ” Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015) (quoting Fed.R.Civ.P. 37(c)(1)). “Harmless” has been interpreted to mean “an honest mistake on the part of a party coupled with sufficient knowledge on the part of the other party.” Id. (quoting Vance, 182 F.3d 920, at *5).

         To assess whether a party's omitted or late disclosure is “substantially justified” or “harmless, ” the Sixth Circuit has adopted a five-factor test: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that 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.” Id. at 747-48 (citing Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396-97 (4th Cir. 2014)).

         III. Discussion

         A. Challenge to Defendant's Expert Witness Under Rule 37

         In Plaintiff's motion seeking to exclude Defendant's expert, Plaintiff seeks an order striking Defendant's proposed expert witness, Mr. Thomas Frazee, because Defendant's disclosures regarding Mr. Frazee were untimely and incomplete. Dkt. No. 102, p. 1 (Pg. ID No. 2669).

         This case is scheduled to begin trial on the morning of Tuesday, December 13, 2016. Pursuant to Federal Rule of Civil Procedure 26, parties were to exchange expert witness disclosures “at least 90 days before the date set for trial or for the case to be ready for trial.” Fed.R.Civ.P. 26(a)(2)(D)(i). In this case, that date was September 14, 2016. Disclosures “intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C)” are due within 30 days after the other party's disclosure. Fed.R.Civ.P. ...


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