Esty v. Town of Haverhill, Civil No. 17-cv-59-AJ

2018 DNH 115

Donna Esty, individually and as Administratrix of the Estate of Hagen Esty-Lennon v. Town of Haverhill, et al.

Civil No. 17-cv-59-AJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

June 8, 2018

MEMORANDUM ORDER

Donna Esty brings this action individually and on behalf of the estate of her son, Hagen Esty-Lennon, who was shot and killed by two Haverhill police officers in July 2015. She alleges violations of federal and state law by the Town of Haverhill and the two officers. The defendants jointly move for summary judgment (doc. no. 18), and Esty objects (doc. no. 23). There are also four non-dispositive motions pending before the court related to the timeliness of Esty's expert disclosure and whether the court may properly consider materials attached to or referenced in Esty's objection to the motion for summary judgment. See doc. nos. 20, 21, 28, and 33.

As discussed below, the court is not persuaded by Esty's arguments with respect to the non-dispositive motions. The court ultimately need not resolve those motions, however, because even if the challenged materials were properly before the court, the defendants would still be entitled to summary judgment on Esty's federal claims. The court accordingly grants the defendants' motion as to those claims. In an abundance of caution, the court declines supplemental jurisdiction over Esty's state-law claims and remands them to state court. The court denies all other motions as moot.

I. PROCEDURAL HISTORY

The court starts by summarizing the travel of this case, as it has some bearing on both the non-dispositive motions and the motion for summary judgment. Esty initially brought this action in state court, alleging that the Haverhill Police Department, the Grafton County Sheriff's Department, the two officers involved in the shooting, and a third Haverhill officer violated state and federal law. See doc. no. 1-2. The defendants removed the action to this court based on the federal claims (doc. no. 1), and the parties consented to the jurisdiction of the undersigned magistrate judge.¹

Once removed, Esty moved to non-suit the Grafton County Sheriff's Department (doc. no. 3) and to substitute the Town of Haverhill for the Haverhill Police Department (doc. no. 11). She then amended her complaint, dropping the third Haverhill officer as a defendant. See doc. no. 14. In its current form, Esty's action comprises nine counts — three federal and six state — brought against some combination of the Town and the two officers involved in the shooting. See id.

The court held a preliminary pretrial conference on March 27, 2017. See March 27, 2017 Minute Entry. Attorney James Laura represented Esty at that conference. See id. Following the conference, the court issued a scheduling order. See doc. no. 12. Consistent with the discussion at the conference, the court set a July 5, 2017 deadline for Esty to disclose experts and provide expert reports to the defendants. See id. at 1. This deadline was four days after the deadline proposed by the parties in their joint discovery plan. See doc. no. 10 at 4(proposing July 1, 2017). The court set an October 2, 2017 deadline for the defendants to make corresponding disclosures. See doc. no. 12 at 1. The court further set a November 15, 2017 summary-judgment deadline and a January 16, 2018 discovery deadline, consistent with the parties' proposals in their discovery plan. See id. at 1; doc. no. 10 at 3, 5.

On October 6, 2017, the defendants jointly moved for summary judgment. Doc. no. 18. A little more than two weeks later, Esty moved to extend the deadlines for the parties to exchange expert reports. Doc. no. 20. Esty indicated in her motion that she had forwarded the defendants a copy of her expert reports on that same date. Id. ¶ 6. The defendants objected to Esty's motion to extend (doc. no. 22) and jointly moved to exclude Esty's experts (doc. no. 21). Esty did not object to the motion to exclude.

On November 6, 2017, Esty filed an objection to the motion for summary judgment. See doc. no. 23. She attached eight exhibits to her objection. See doc. nos. 23-2 through 23-9. The defendants jointly moved to strike several of those exhibits, as well as references in Esty's objection to evidence not before the court, contending that they were not admissible, as required by Rule 56, or were otherwise not relevant. See doc. no. 28. Esty objected to the motion to strike. Doc. no.30.

On November 9, 2017, the defendants filed a statement on the status of discovery, as required by the scheduling order. See doc. no. 26. In that statement, the defendants represented that they did not believe a discovery-status conference was necessary. Id. ¶ 9. Esty assented to the defendants' statement later the same day without raising any concerns about the status of discovery or of the case in general. See doc. no. 27.

The court heard oral argument on all of the pending motions on December 6 and 7, 2017. Attorney Peter McGrath represented Esty at that hearing. Following the hearing, Esty sought leave to addend her objection to the motion for summary judgment to attach an affidavit in support of one of her expert reports. See doc. no. 33. The defendants objected to that motion. See doc. no. 34.

II. NON-DISPOSITIVE MOTIONS

The court turns first to the non-dispositive motions. These motions present two distinct issues: (1) whether Esty's late disclosure of her experts was justified or excusable; and (2) whether Esty has properly supported the materials attached to or referenced in her objection to the motion for summary judgment. The court addresses each issue in turn.

A. Expert Disclosures

The first two non-dispositive motions — Esty's motion to extend and the defendants' motion to exclude — both address Esty's attempt to disclose experts three-and-a-half months after her deadline to do so expired. Though different standards apply to each motion, with the motion to extend requiring a showing of "good cause" under Rule 16(b)(4) and the motion to exclude analyzed under Rule 37(c)(1)'s "substantially justified or harmless" standard, Esty bears the burden under either. See Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013) (Rule 16(b)(4)); Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001) (Rule 37(c)(1)).

Esty raises several arguments in support of her late disclosure. First, she suggests that she could not disclose her experts by July 5, 2017, because certain written discovery was outstanding at that time and additional non-party depositions still needed to be scheduled. Next, she argues that an extension would not prejudice either side, as the defendants also failed to disclose an expert and her proposal extends their deadline as well. Third, Esty contends that the defendants should have been aware that she would seek to disclose an expert because she mentioned experts in her demand letter. Next, Estycontended at the hearing that she needed an expert to prove her case.² Esty's counsel also acknowledged for the first time at the hearing that he missed the July 5, 2017 deadline due to "confusion" at his office, which he attributed both to his secretary and Attorney Laura, and suggested that if the court were inclined to sanction him, awarding the defendants attorney's fees would be more appropriate than precluding the experts outright.

In response, the defendants contend that Esty has provided no justification for her failure to timely disclose her experts. The defendants note that they did not receive discovery requests from Esty until August 2017, which they argue undermines any claim that her failure to disclose experts by the July 5, 2017 deadline was due to outstanding discovery. They next argue that the demand letter does not constitute a proper expert disclosure under Rule 26, and therefore does not excuse the late disclosure. The defendants also reject Esty's contention that they will not be prejudiced by her late disclosure, noting that they decided against disclosing their own expert and elected tofile their motion for summary judgment relying on the fact Esty had not disclosed an expert. Finally, the defendants dispute any suggestion that excluding Esty's expert would result in the dismissal of her action, contending that her expert report is irrelevant to the court's summary judgment analysis.

The court ultimately need not resolve whether Esty has met her burden under Rule 16(b)(4) or 37(c)(1), as the defendants would be entitled to summary judgment on the federal claims even if Esty had properly disclosed her experts. The court nevertheless emphasizes that it does not find Esty's arguments to be particularly persuasive, especially given that she assented to the defendants' November 9, 2017 statement on the status of discovery without raising any of the issues that she now argues caused the late expert disclosure. See doc. nos. 26, 27.

B. Exhibits

The other two non-dispositive motions relate to materials attached to or referenced in Esty's objection to the motion for summary judgment. The defendants move to strike several of those exhibits and references, arguing that they are not admissible, as required by Rule 56(c), or are otherwise irrelevant to the issues raised in the motion for summary judgment. Esty counters that the defendants' motion ispremature, as discovery had not closed at the time it was filed. To this end, Esty suggests, but does not request, that the court defer ruling on the motion under Rule 56(e) to allow her additional time to present her exhibits in admissible form.³ Esty further suggests in her objection, and reiterated at the hearing, that she does not need to submit affidavits in order to comply with Rule 56. Alternatively, Esty takes the position that the court still must deny the defendants' motion for summary judgment even if it granted their motion to strike.

It is well-established that "evidence that is inadmissible at trial, such as inadmissible...