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LLC v. Family Fare, LLC

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

January 8, 2018

50820 Schoenherr Road FJ Associates, LLC, Plaintiff,
v.
Family Fare, LLC, and SpartanNash Company, d/b/a Spartan Stores, Inc., Defendants.

          David R. Grand Mag. Judge.

          ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION [25] AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO SERVE SUPPLEMENTAL EXPERT DISCLOSURES [26]

          JUDITH E. LEVY, UNITED STATES DISTRICT JUDGE.

         Before the Court are plaintiff's motion for reconsideration of the opinion and order granting defendants' motion to strike experts (Dkt. 25) and plaintiff's motion for leave to serve supplemental expert disclosures (Dkt. 26). For the reasons set forth more fully below, plaintiff's motions are DENIED.

         I. Background

         An extensive background and procedural history for this case is summarized in the Court's December 20, 2017 opinion and order granting defendant's motion to strike experts. (Dkt. 22 at 2-5.) That history is incorporated herein in its entirety. For emphasis, the Court reiterates the following key facts:

(1) The initial deadline for expert disclosures and reports was set for September 15, 2017 (Dkt. 11 at 11);
(2) Defendants notified the court of alleged deficiencies in plaintiff's expert disclosures and reports on September 22, 2017 (Dkt. 18-3);
(3) Following a status conference held on October 11, 2017, [1] the court issued an amended scheduling order which granted plaintiff an extension of more than six weeks beyond the initial deadline to submit rules-compliant expert disclosures and reports;
(4) Plaintiff, via email to the Court, informally requested an additional two-week extension for the expert disclosure and report deadline on October 26, 2017;
(5) The Court's case manager informed plaintiff that a request for a further extension would need to be set forth in a motion, which plaintiff did not file (Dkt. 18 at 17); and
(6) After receiving plaintiff's updated expert disclosures and reports on October 31, 2017, defendants filed a motion alleging that the proffered reports continued to fail to comply with the requirements of Fed.R.Civ.P. 26(a)(2)(B) and seeking an order under Fed.R.Civ.P. 37(c) precluding plaintiff from using the proffered reports.

         On December 20, 2017, the Court issued an opinion and order granting defendants' motion “striking the reports of plaintiff's experts and precluding them from testifying pursuant to Fed.R.Civ.P. 37(c).” (Dkt. 22 at 1.) Defendants argued that the two expert reports proffered by plaintiff failed to meet the requirements of Fed.R.Civ.P. 26(a) - particularly the requirements that expert reports “must contain: (i) a complete statement of all opinions the witness will express and the basis for them; (ii) the facts or data considered by the witness in forming them; [and] (iii) any exhibits that will be used to summarize or support them.”

         The Court reviewed both of the proffered reports and concluded that each failed to meet the requirements of Fed.R.Civ.P. 26(a). Specifically, the Court concluded that the first report, proffered in support of an expert opinion “regarding the market rental rate of the subject property as of September 17, 2015” contained none of the required facts or data considered by the witness in forming his opinion. (Dkt. 22 at 6.) The Court concluded that the second report, proffered in support of an expert opinion regarding “the alleged damages and cost of repairs to the [p]remises” lacked the required facts or data to support an expert opinion regarding the cost of repairs to the premises. (Id. at 7.)

         The Court also noted that Fed.R.Civ.P. 37(c)(1) “mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or substantially justified.” (Id.) (quoting R.C. Olmstead Inc., v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010)) and that “[t]he burden falls on the potentially sanctioned party to prove ...


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