Preuss v. Kolmar Labs., Inc.

970 F.Supp.2d 171

William PREUSS, Robert Bloomer, and Francis Xavier Cafiero, Plaintiffs,

v.KOLMAR LABORATORIES, INC., Defendant.

No. 10–CV–6375 (CS).

United States District Court, S.D. New York.

Sept. 4, 2013.

Phyllis Gelman, Avi Mermelstein, Gelman & Jones, LLP, New York, NY, for Plaintiffs.

Anthony DiOrio, Nina Massen, Jackson Lewis LLP, White Plains, NY, for Defendant.

OPINION AND ORDER

SEIBEL, District Judge.

Before the Court are the Motion for Summary Judgment of Defendant Kolmar Laboratories, Inc., (Doc. 45), and the Cross–Motion of Plaintiffs William Preuss, (“Preuss”), Robert Bloomer (“Bloomer”), and Francis Xavier Cafiero (“Cafiero”), (collectively, the “Plaintiffs”) to preclude certain affirmations submitted by Defendant, (Doc. 55). For the reasons stated below, Plaintiffs' Motion to Strike is GRANTED IN PART and DENIED IN PART and Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

I. Motion to Strike

In support of its Motion for Summary Judgment, Defendant has submitted the following documents:

• Affirmation of Thad Dussinger, (Massen MSJ Aff. Ex. I (“Dussinger Aff.”)) ¹;

• Affirmation of Clara Bock, (Massen MSJ Aff. Ex. J (“Bock Aff.”));

• Affirmation of Concita May, (Massen MSJ Aff. Ex. K (“May Aff.”));

• Affirmation of Richard Matyus, (Massen MSJ Aff. Ex. N (“Matyus Aff.”)); and

• Affirmation of Lisa Smith, (Massen MSJ Aff. Ex. P (“Smith Aff.”)).

As a preliminary matter, I must determine exactly what should and should not be part of the record on Defendant's Motion for Summary Judgment.

A. Legal Standard

Federal Rule of Civil Procedure 26(a) obligates each party to provide the opposing party with, inter alia, the name of “each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i). Moreover, where a disclosing party “learns that in some material respect the disclosure or response is incomplete or incorrect,” that party is required to supplement or correct the disclosure in a timely manner. Fed.R.Civ.P. 26(e)(1)(A). Federal Rule of Civil Procedure 37(c)(1) provides in relevant part that any “party [that] fails to provide information or identify a witness as required by Rule 26(a) ... is not allowed to use that information or witness to supply evidence on a motion ... unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The rule's purpose is to “prevent the practice of ‘sandbagging’ an opposing party with new evidence.” Ebewo v. Martinez, 309 F.Supp.2d 600, 607 (S.D.N.Y.2004); see Am. Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 93 (S.D.N.Y.2002) (“The purpose of these rules is to avoid surprise or trial by ambush.”) (internal quotation marks omitted).

A party may “defend non-disclosure on the basis that it was substantially justified or harmless.” U.S. Licensing Assocs., Inc. v. Rob Nelson Co., No. 11–CV–4517, 2012 WL 1447165, at *5 (S.D.N.Y. Apr. 26, 2012). Substantial justification is defined as “justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request.” Am. Stock Exch., 215 F.R.D. at 93 (internal quotation marks omitted). “The test of substantial justification is satisfied if there exists a genuine dispute concerning compliance.” Henrietta D. v. Giuliani, No. 95–CV–641, 2001 WL 1602114, at *5 (E.D.N.Y. Dec. 11, 2001) (internal quotation marks omitted). Failure to comply with Rule 37(c)(1) is harmless “when there is no prejudice to the party entitled to the disclosure.” Am. Stock Exch., 215 F.R.D. at 93.

Despite Rule 37(c)(1)'s self-executing nature, courts have broad discretion in determining whether and how to impose sanctions. See Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 68 (E.D.N.Y.2012); Kunstler v. City of N.Y., 242 F.R.D. 261, 265 (S.D.N.Y.2007). Further, “[p]reclusion of evidence is generally a disfavored action.” Am. Stock Exch., 215 F.R.D. at 93;see Lujan, 284 F.R.D. at 68 (“Preclusion is a harsh remedy that should only be imposed in rare situations.”) (internal quotation marks omitted). “While a finding of bad faith is not required to justify preclusion of evidence under Rule 37, a court may consider bad faith in its analysis.” Lujan, 284 F.R.D. at 68. In determining whether to preclude evidence under Rule 37(c)(1), courts examine: “(1) the party's explanation for the failure to comply with the disclosure requirement; (2) the importance of the testimony of the precluded witnesses; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir.2006) (alterations and internal quotation marks omitted); see Lujan, 284 F.R.D. at 68;U.S. Licensing Assocs., 2012 WL 1447165, at *5.

B. Analysis

Defendant concedes that the affiants were not identified in its initial Rule 26 disclosures as individuals likely to have discoverable information, ² nor were they identified in its numerous supplemental disclosures. ³ ( See Ps' Mem. 2; D's Opp. 2–3.) ⁴ Rather, Defendant contends that it was not obligated to supplement its disclosures with information about the affiants because either their existence was “made known to [Plaintiffs] during the discovery process,” or Plaintiffs were aware of the information contained in the affirmations, and thus Defendant's non-disclosure was harmless. (D's Opp. 1–2 (quoting Fed.R.Civ.P. 26(e)).)

1. The Dussinger, Matyus, and Bock Affirmations

Dussinger joined Defendant in 2007, and he became Manager of the Logistics Department in 2008. (Dussinger Aff. ¶ 5–6.) While Bloomer was employed in the Logistics Department, Keith Baker was his direct supervisor, and Dussinger was his department manager. ( Id. ¶ 6.) In January 2010, Dussinger transferred to the Purchasing Department as the Purchasing Costing Manager. ( Id. ¶ 3.) Cafiero was recalled to the Purchasing Department the same day, and Dussinger became his immediate supervisor. ( Id. ¶ 25; Massen MTS Aff. Ex. F., at 3.) Matyus, in turn, was Dussinger's direct supervisor. (Matyus Aff. ¶ 4.) Bock, a Purchasing Agent at the company, worked with Cafiero in the Purchasing Department until his termination and spoke with Cafiero “every day.” (Bock Aff. ¶¶ 3, 5; Massen MTS Aff. Ex. B, at 3–4.)

Defendant has submitted Dussinger's affirmation to explain: (1) the sequence of events leading up to Bloomer's layoff, (Dussinger Aff. ¶¶ 7–24); and (2) Cafiero's alleged unsatisfactory performance in the Purchasing Department, which culminated in his absence at an important meeting and his subsequent termination, ( id. ¶¶ 25–38).⁵ Matyus's affirmation echoes Dussinger's, and details Defendant's dissatisfaction with Cafiero's performance, his failure to report to work for the meeting, and Matyus's decision to terminate him. ( See generally Matyus Aff.) Likewise, Bock offers testimony to support Defendant's argument that Cafiero was insubordinate. (Bock Aff. ¶¶ 7, 11–13.)

Defendant contends that it was not obligated to disclose these individuals as potential witnesses because Plaintiffs should have been aware of their existence and significance, not only through discovery, but also from their respective relationships at the company. (D's Opp. 7.) In fact, Defendant alleges that Cafiero called Bock in March 2012 and attempted to influence her potential testimony. ( Id. at 9; Massen MTS Aff. Ex. C.) For these same reasons, Defendant argues that Plaintiffs were not prejudiced by Defendant's failure to disclose.

Of significance is the fact that Plaintiffs served document requests on Defendant seeking Dussinger's and Matyus's personnel files, as individuals who supervised Plaintiffs or participated in the decision to lay off or terminate Plaintiffs, and all documents within Dussinger's or Matyus's possession. ( See Massen MTS Aff. Ex. I, ¶¶ 3(a), (d), 13, 16.) Moreover, all three affiants' names were brought up several times in depositions, by Plaintiffs themselves as well as by some of Defendant's witnesses. ( See Massen MTS Aff. Exs. E–G.) Likewise, a memorandum written by Dussinger concerning Cafiero's conduct was entered as an exhibit at Cafiero's deposition. ( See id. Ex. D.)

Although Defendant should have complied more diligently with the discovery rules, its failure to disclose Dussinger, Matyus, or Bock as potential witnesses does not warrant the severe sanction of striking their testimony because Plaintiffs were well aware of their identities and the scope of their knowledge. See LaVigna v. State Farm Mut. Auto. Ins. Co., 736 F.Supp.2d 504, 511 (N.D.N.Y.2010) (motion to strike denied where affiant supervised plaintiff during period leading up to termination, plaintiff had awareness of affiant's role and involvement of events at issue, and several documents mentioning affiant were turned over); Morgenstern v. Cnty. of Nassau, No. 04–CV–58, 2008 WL 4449335, at *2 (E.D.N.Y. Sept. 29, 2008) (harmless error where plaintiff was aware of affiant's role in lawsuit, testified about affiant's role in deposition, and served document request on defendant seeking documents from affiant); Fleet Capital Corp. v. Yamaha Motor Corp., U.S.A., No. 01–CV–1047, 2002 WL 31108380, at *2 (S.D.N.Y. Sept. 23, 2002) (“[A] failure to disclose witness information is harmless if the other party was well aware of the identity of the undisclosed witness and the scope of their knowledge well before trial.”) (internal quotation marks omitted); cf. Marvel Worldwide, Inc. v. Kirby, 777 F.Supp.2d 720, 727 (S.D.N.Y.2011) (affidavits not stricken where non-disclosed affiants were mentioned at depositions), vacated in part on other grounds sub nom. Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir.2013).

Although this is not a case “where the disclosing party was unable to comply with its obligations...