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Collinge v. Intelliquick Delivery, Inc.

United States District Court, D. Arizona

September 5, 2017

David Collinge, et al., Plaintiffs,
v.
IntelliQuick Delivery, Inc., an Arizona corporation,, Defendants.

          ORDER AND OPINION [RE: MOTION AT DOCKET 439]

          JOHN W. SEDWICK SENIOR JUDGE

         I. MOTION PRESENTED

         At docket 439 plaintiffs David Collinge, et al. (collectively “Plaintiffs”) move the court for an order striking the declaration of Robert Crandall, MBA (“Crandall”), an expert retained by defendants IntelliQuick Delivery, Inc., et al. (collectively, “IntelliQuick”), which was filed at docket 430-1 as Exhibit C to IntelliQuick's Daubert motion at docket 430; striking all references to Crandall's declaration; and sanctioning IntelliQuick under Rule 37(c). IntelliQuick opposes at docket 441. Plaintiffs reply at docket 442. Oral argument was not requested and would not assist the court.

         II. STANDARD OF REVIEW

         Local Rule of Civil Procedure (“Local Rule”) 7.2(m) governs motions to strike. It provides in pertinent part that a motion to strike may be filed “if it seeks to strike any part of a filing or submission on the ground that it is prohibited (or not authorized) by a statute, rule, or court order.”[1] The decision to grant or deny a motion to strike is within the court's discretion.[2]

         Rule 37(c)(1) states that 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 . . . unless the failure was substantially justified or is harmless.” The court may also, or alternatively, “order payment of the reasonable expenses, including attorney's fees, caused by the failure” or “impose other appropriate sanctions.”[3] A district court is given “particularly wide latitude” when exercising its discretion to issue sanctions under Rule 37(c)(1).[4]

         III. BACKGROUND

         Plaintiffs' expert, David M. Breshears, CPA, CCF (“Breshears”), prepared an expert report dated December 2, 2016, that calculates the amount of unpaid wages that Plaintiffs assert they are owed. Crandall submitted a rebuttal declaration dated March 23, 2017. On May 23 the court approved the parties' stipulated request to again modify the court's scheduling order.[5] Among other things, this moved the deadline for Plaintiffs' expert rebuttal disclosures to June 6. On that date Plaintiffs' submitted Breshears' June 5 rebuttal report.[6]

         On June 15 IntelliQuick's counsel emailed Plaintiffs' counsel requesting a new extension of the discovery deadline to allow Crandall to provide a written response to Breshears' June 5 rebuttal.[7] Plaintiffs declined, stating that sur-rebuttal expert reports are not permitted without leave of court and if IntelliQuick wished to submit such a report it would have to file a motion.[8] IntelliQuick did not file such a motion. Instead, on July 24 IntelliQuick produced Crandall's 60-page sur-rebuttal report for the first time by attaching it as Exhibit C to the Daubert motion it filed at docket 430. Plaintiffs now move to strike.

         IV. DISCUSSION

         IntelliQuick produced Crandall's July 24 declaration after the close of discovery. IntelliQuick advances two arguments for why it should nevertheless be allowed to introduce this new evidence contemporaneously with its Daubert and summary judgment motions. First, IntelliQuick argues that Crandall's declaration is not a new report but rather a supplement to his March 23 report that is allowed under Rule 26(e). Alternatively, it argues that the court should accept its late-filed declaration because doing so would be harmless and substantially justified.

         A. Crandall's New Declaration Is Not a Supplement Under Rule 26(e)

         Rule 26(e) provides that a party must supplement or correct its expert's report if the party “learns that in some material respect the [report] is incomplete or incorrect.”[9]In other words, a party must supplement an expert report “to correct inadvertent errors or omissions. Supplementation, however, is not a license to amend an expert report to avoid summary judgment.”[10] “Courts distinguish ‘true supplementation' (e.g., correcting inadvertent errors or omissions) from gamesmanship, and have therefore repeatedly rejected attempts to avert summary judgment by ‘supplementing' an expert report with a ‘new and improved' expert report.”[11]

         The new Crandall report is of the latter variety. Crandall's new report is clearly a new expert report that rebuts Breshears' June 5 report, not a correction to or an expansion of Crandall's previous report.[12] Thus, this case is easily distinguishable from the cases upon which IntelliQuick relies.[13] Because Crandall's ...


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