The opinion of the court was delivered by: United States Magistrate Judge Robert C. Mitchell
Pending before this Court is Defendant's Motion to Strike Plaintiff's Supplemental Pre-Trial Statements. For the following reasons, Defendant's motion is denied.
II.Relevant Facts and Procedural History:
The instant case was removed to federal court by Defendant on November 30, 2009 (ECF 1), and Plaintiff was granted leave to file an Amended Complaint. Order of 4/2/2012; Am. Compl., (ECF No. 85). Plaintiff seeks damages for Defendant's allegedly deficient repair and replacement of the roofs of buildings owned by Plaintiff. Am. Compl., (ECF No. 85), ¶¶8-37. Plaintiff's claims against Defendant include: (1) breach of express warranties; (2) breach of implied warranties; (3) breach of the implied warranty of merchantability; (4) breach of warranty to perform in a workmanlike manner; (5) breach of contract; and, (6) fraudulent misrepresentation. Am. Compl., (ECF No. 85), 6-8.
On October 31, 2011, this Court scheduled expert discovery deadlines directing that expert reports were due November 30, 2011, fact discovery was to conclude by November 30, 2011, and expert discovery was to conclude by December 31, 2011. Minute Entry of 10/31/2011, (ECF No. 53). Plaintiff filed its Pretrial Statement on December 22, 2011, naming Kirby Hartman of Hartman Roofing, Inc. as a potential witness and indicated his expert report would be provided to Defendant. Pl.'s Pretrial Statement, (ECF No. 54) at 2, 9. On January 9, 2012, this Court extended the discovery deadline to February 29, 2012. Minute Entry of 1/9/2012, (ECF No. 69). Subsequently, upon Motion by Defendant, this Court extended the discovery deadline to July 9, 2012. Order of 5/7/2012, (ECF No. 100).
On September 13, 2012, Plaintiff filed a Supplemental Pretrial Statement indicating it would present John Bunton, or other agent of BARR Roofing Company, as a damages witness at trial, and included a Services Proposal intended to be relied upon as an exhibit for computing damages. First Supp. Pretrial Statement, (ECF No. 133) at 1. On September 18, 2012, Plaintiff filed a similar Supplemental Pretrial Statement indicating it would present Kirby Hartman of Hartman Roofing, Inc., as a damages witness at trial, and included Hartman's Services Proposal also intended to be relied upon as an exhibit for computing damages. Second Supp. Pretrial Statement, (ECF No. 134) at 1.
The present dispute involves the Pretrial Statements filed September 13 and 18, 2012, that untimely named Bunton and Hartman as expert witnesses, as general and expert discovery had closed. Defendant filed a Motion to Strike both Supplemental Pretrial Statements (ECF No. 138) on September 27, 2012 and corresponding brief in support (ECF No. 137). Defendant argues that Plaintiff is excluded from introducing Bunton or Hartman as expert witnesses because the time for identifying experts and providing reports has expired, Plaintiff was compelled to disclose the expert reports to Defendant without formal discovery requests, and Plaintiff failed to supplement its discovery in a timely fashion. Def.'s Brief in Support of Objections to Pl.'s Supp. Pretrial Statement, (ECF No. 137) at 3-7.
Rule 26 of the Federal Rules of Civil Procedure generally governs discovery procedures and dictates: "[A] party must, without awaiting a discovery request, provide to the other parties: the name and, if known, the address and telephone number of each individual likely to have discoverable information . that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 26 requires a party to timely supplement or correct its discovery disclosures, "if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and 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)(A).
Federal Rule of Civil Procedure 26(a)(2)(D) establishes the timing of required disclosures of experts' identities and reports, providing:
(D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation of a court order, the disclosures must be made:
(i) at least 90 days before the date set for trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within ...