Lenexa 95 Partners, LLC v. Kin, Inc.

LENEXA 95 PARTNERS, LLC, Plaintiff, v. KIN, INC., Defendant.

Case No. 20-2367-JWB-ADM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

June 17, 2021

MEMORANDUM AND ORDER

Defendant Kin, Inc. ("Kohl's") formerly operated a Kohl's department store near 95th Street and I-35 in Lenexa, Kansas. Kohl's leased the premises from Plaintiff Lenexa 95 Partners, LLC ("Lenexa 95") and its predecessors in interest. After the lease expired, Lenexa 95 filed this lawsuit in which it alleges that Kohl's breached the lease agreement by failing to properly maintain and repair the premises and surrendering the premises in a deteriorated condition. Kohl's disputes this and contends that it kept the premises in the condition required by the lease and surrendered the premises with only ordinary wear and tear.

When the parties submitted their proposed pretrial order, Kohl's sought to assert two defenses: (1) a failure-to-mitigate defense based on Lenexa 95's alleged failure to take reasonable actions to prevent damage to the Leased Premises, and (2) a waiver and estoppel defense based on Lenexa 95's alleged failure to give Kohl's notice of default and an opportunity to cure defects in the property's condition. Lenexa 95 objected to these defenses on the grounds that Kohl's did not properly disclose them in discovery. In order to expedite briefing on this dispute given the late stage of the case, the court directed the parties to file cross-motions that would eliminate the need for replies. This matter is therefore now before the court on Lenexa 95's motion to strike Kohl's waiver and mitigation defenses (ECF 110), and Kohl's motion for leave to serve supplementary interrogatory responses (ECF 109). For the reasons explained below, the court grants in part and denies in part Lenexa 95's motion to strike and denies Kohl's motion to supplement its interrogatory responses. Specifically, the court will strike the mitigation defense but will allow the waiver defense, which was sufficiently disclosed.

I. KOHL'S MITIGATION DEFENSE

Kohl's answer asserted an affirmative defense that Lenexa 95's "claims are barred or must be reduced due to [Lenexa 95's] failure to mitigate and/or prevent damages, or by the absence of cognizable damages." (ECF 5 ¶ 2.) During discovery, Lenexa 95 propounded a contention Interrogatory No. 18, which required Kohl's to identify the facts supporting this failure-to-mitigate defense. (ECF 110-1, at 15-16.) Kohl's responded, in sum and substance, that Lenexa 95 had earlier opportunities to sell or lease the property to another user, or to redevelop the property for a different user. (Id.) Then, when the parties submitted their proposed pretrial order, Kohl's asserted a different factual theory in support of its failure-to-mitigate defense—namely, that Lenexa 95 failed to take reasonable actions to prevent damage to the leased premises. Lenexa 95 therefore moved to strike this revised failure-to-mitigate theory from the pretrial order. In response, Kohl's contends that it was not required to supplement its interrogatory response or, alternatively, Kohl's seeks leave to supplement the response via a motion the court required Kohl's to file so that the court could better understand the contours of this proposed defense.

A. Kohl's did not comply with Rule 26(e)(1)(A).

A party must supplement its discovery responses "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect[.]" FED. R. CIV.P. 26(e)(1). Comparing Kohl's response to Interrogatory No. 18 to its proposed contentions in the pretrial order shows that Kohl's interrogatory response is incomplete or incorrect. Interrogatory No. 18 asked Kohl's to identify the facts supporting its mitigation defense. (ECF 110-1, at 15.) Kohl's response pointed to Lenexa 95's opportunities to lease, sell, or redevelop the property for other users who would not need the repairs, replacements, and maintenance at issue. (Id. at 15-16.) Kohl's asserted a different factual theory in the draft pretrial order—that is, that Lenexa 95 failed to take reasonable actions to prevent damage to the premises.

Kohl's does not dispute that its response to Interrogatory No. 18 was incomplete or incorrect, but instead takes the position that it was not required to supplement. Kohl's relies on the rule that a party need not supplement a discovery response "if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]" FED. R. CIV. P. 26(e)(1). Kohl's says that Lenexa 95 "was aware of [Kohl's] failure to mitigate damages defense, and was further aware of [Lenexa 95's] failure to take steps to prevent further damage to the premises after the lease term ended." (ECF 113, at 2.) According to Kohl's, the source of this information was the deposition testimony of Lenexa 95's own corporate representative, David J. Christie.

Kohl's argument misconstrues the information sought by Interrogatory No. 18. It is a contention interrogatory that required Kohl's to identify the facts supporting its failure-to-mitigate defense. Contention interrogatories serve the important purpose of "helping to discover facts supporting the theories of the parties" and "narrowing and sharpening the issues thereby confining discovery and simplifying trial preparation." Woods v. DeAngelo Marine Exhaust, Inc., 692 F.3d 1272, 1280 (Fed. Cir. 2012) (citing Fed. R. Civ. P. 33 advisory committee's note to the 1970 amendment). It would be uncommon for the "otherwise made known" exception in Rule 26(e) toapply to a contention interrogatory because discovering relevant information is not the same as discovering that the opposing party intends to rely on that information in support of its claims or defenses—which is what a contention interrogatory aims to flesh out. See U.S. ex rel. Nat'l Res. Def. Council v. Lockheed Martin Corp., No. 5:99-CV-170, 2014 WL 6909652, at *6 (W.D. Ky. Dec. 8, 2014) ("Knowing of the statement and its factual context, however, is different from knowing that one's opponent alleges the statement was false."). Generally, information is "otherwise made known" if it is "in such a form and of such specificity as to be the functional equivalent of a supplemental discovery response." L-3 Commc'ns Corp. v. Jaxon Eng'g & Maint., Inc., 125 F. Supp. 3d 1155, 1168-69 (D. Colo. 2015). "[P]ointing to places in the discovery where the information was mentioned in passing is not sufficient." Id.; see also In re Celexa & Lexapro Mktg. & Sales Pracs. Litig., 915 F.3d 1, 17 (1st Cir. 2019) (describing the inquiry as hinging on the relevance of the information in the would-be supplemental response).

Here, Christie's deposition testimony is not the functional equivalent of a supplemental interrogatory response. Kohl's counsel asked Christie a variety of questions about whether Lenexa 95 had performed maintenance on certain parts of the property after Kohl's lease expired in January of 2020. Christie testified that Lenexa 95 did not undertake any substantial work to shore up the roof, parking lot, or HVAC units after Kohl's lease term ended other than preventative maintenance to make sure the roof is watertight and the heating components of the HVAC system work, and blocking off the parking lot to keep traffic off of it. (ECF 109-4; 113-4.) Kohl's did not correlate these passing references to repairs and maintenance to its failure-to-mitigate theory. Kohl's reasoning would effectively render contention interrogatories meaningless. Indeed, Kohl's original response to Interrogatory No. 18 served only to mislead Lenexa 95 into believing that the response was complete. Kohl's stated that its failure-to-mitigate theory was based on Lenexa 95'sopportunities to sell, lease, or redevelop the property for another user, and Kohl's stated that it would "supplement as further facts are developed during discovery." (ECF 110-1, at 16.) But then Kohl's never supplemented. And Kohl's corporate representative testified that he had reviewed Kohl's interrogatory responses and did not see any changes or amendments that Kohl's needed to make. (ECF 110-7, at 308:2-12.) As such, Kohl's failed to supplement its response to Interrogatory No. 18 as required by Rule 26(e).

C. Kohl's request to serve a supplemental response to Interrogatory No. 18 is denied as untimely.

As a fallback to Kohl's argument that its response to Interrogatory No. 18 was sufficient, it seeks leave to supplement the response. Its proposed supplemental response would add the following facts to support its failure-to-mitigate defense:

[Lenexa 95] failed to take reasonable steps to maintain the property and/or repair property conditions so as to prevent damage or deterioration, or to prevent further damage or deterioration, to the property, including with regard to HVAC, the roof, the concrete and asphalt, and aspects of the interior of the building such as alleged leaks. [Lenexa 95] has likewise failed to produce documentation to substantiate any claims that [it] maintained or repaired [those aspects of the premises].

(ECF 109-1, at 2.) Kohl's contends that this supplemental interrogatory response is timely because it first discovered that Lenexa 95 had undertaken little or no efforts to repair or maintain the premises so as to prevent damage at Christie's deposition on April 8.

A party must supplement a discovery response that is incomplete or incorrect "in a timely manner." FED. R. CIV. P. 26(e)(1)(A). Whether a supplement is timely depends on the facts and circumstances of each case. See Equal Emp. Opportunity Comm'n v. Dolgencorp, LLC, 196 F. Supp. 3d 783, 795 (E.D. Tenn. 2016), aff'd, 899 F.3d 428 (6th Cir. 2018). Supplementations after the close of discovery do not satisfy Rule 26(e) when the party was able to serve the supplemental response sooner. See generally id. (disclosure of witness declaration 28 days after obtaining it wastimely...