United States District Court, D. Colorado
LISA M. JOHNSON, Plaintiff,
SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVER AND STATE OF COLORADO, and BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 1, Defendants.
ORDER ON MOTION FOR SANCTIONS
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Plaintiff's Motion for Sanctions for Defendants' Failure to Make Timely Identification of Witnesses [filed January 28, 2014; docket #90]. The motion is referred to this Court for disposition. (Docket #64.) The matter is fully briefed, and oral argument would not assist the Court in its adjudication of the motion. For the reasons that follow, the Court grants in part and denies in part the Plaintiff's motion.
Plaintiff Lisa Johnson ("Johnson") initiated this action on October 12, 2012 in Denver County District Court against School District No. 1 in the County of Denver and State of Colorado ("District") and the Board of Education of School District No. 1 ("Board") (collectively "Defendants"). (Docket # 4.) In essence, Johnson claims that Defendants violated her rights to freedom of speech under the First Amendment and to due process under the Fourteenth Amendment, and her rights under the Teacher Employment, Compensation and Dismissal Act ("TECDA"), Colo. Rev. Stat. § 22-63-101 et seq. by assigning her to unfavorable positions and placing her on unpaid leave at the commencement of the 2012-13 school year.
On November 9, 2012, Defendants removed the action to this Court pursuant to 28 U.S.C. § 1441(a) governing federal question jurisdiction. (Docket # 1.) Then, pursuant to Fed.R.Civ.P. 15(a), Plaintiff filed as a matter of course a First Amended Complaint and Jury Demand on December 4, 2012. (Docket # 13.) In response, Defendants filed a motion to dismiss the First Amended Complaint, which was referred to this Court for recommendation. (Dockets ## 21 and 25.) On March 18, 2013, this Court issued a Report and Recommendation that the District Court grant Defendants' motion to dismiss the First Amended Complaint based upon various grounds. (Docket # 37.)
Thereafter, on April 1, 2013, Plaintiff filed a motion for leave to amend the First Amended Complaint and attached a proposed Second Amended Complaint. (Docket # 40.) On May 16, 2013, based on the previous recommendation, this Court issued a recommendation that Plaintiff's motion to amend be granted as to the amendments to paragraphs 29 and 36 and denied as to the amendments to paragraphs 19 and 32. (Docket # 54.) On September 23, 2013, the Honorable Marcia S. Krieger adopted this Court's recommendation to dismiss the due process and TECDA claims, but permitted the First Amendment retaliation claim to proceed and granted the Plaintiff's motion for leave to amend all four paragraphs of the First Amended Complaint. (Order, docket # 65.) Accordingly, the Second Amended Complaint (docket # 66), minus the due process and TECDA claims, is the operative pleading in this case. ( See docket # 65 at 15-16.) The pleading alleges generally that Defendants engaged in a series of adverse employment actions culminating in her eventual termination as a teacher for the school district. ( See docket # 66.) Plaintiff claims that Defendants took these various adverse actions in retaliation for her May 6, 2010 testimony before the Colorado legislature opposing the passage of Senate Bill 10-191, which Defendants strongly supported. ( Id. )
Plaintiff filed the present motion on January 28, 2014 stating that, on December 30, 2013 (the discovery cutoff in this case), Defendants served their second supplemental disclosures identifying 10 new individuals as witnesses likely to have discoverable information. Plaintiff argues that she is prejudiced by these late disclosures because she is unable to take discovery through written requests or depositions of these individuals. Plaintiff contends Defendants' December 30, 2013 disclosures are untimely, and Defendants have failed to show their failure is substantially justified or harmless. Accordingly, pursuant to Fed.R.Civ.P. 37(c)(1), Plaintiff seeks an order prohibiting the 10 individuals from providing evidence in this case.
Defendants counter that the 10 individuals were previously identified in their disclosure documents and in their responses to Plaintiff's written discovery; Plaintiff knew these individuals because she interviewed with them; and Plaintiff cannot demonstrate an incurable prejudice. Specifically, Defendants first argue that the disclosures were timely, as they were filed "within" the discovery period. Second, Defendants contend that the 10 individuals are all administrators at the school district with whom Plaintiff had interviewed; in fact, Defendants disclosed nine administrators in documents submitted during discovery and learned of one administrator through Plaintiff's responses to interrogatories. Finally, Defendants state that Plaintiff unduly delayed the resolution of this issue by waiting nearly a month before raising the issue with opposing counsel and filing the present motion.
Plaintiff replies that the information possessed by the 10 administrators was reasonably available to the Defendants at the time of their initial disclosures and/or at least on February 21, 2013 when Defendants produced documents which indicated that the administrators interviewed the Plaintiff; thus, the second supplemental disclosures submitted December 30, 2013 are untimely. Further, Plaintiff argues that although these administrators' names might have appeared in documents (among the many other names appearing therein) submitted during discovery, there was no indication that they would be witnesses disclosed by Defendants pursuant to Rule 26. Finally, Plaintiff contends that her only means of learning information about the 10 administrators is through the formal discovery process in this case and, due to Defendants' untimeliness, she has been foreclosed from participating in that process. Plaintiff seeks an order prohibiting Defendants from using these administrators' information and testimony in support of a motion or at trial.
II. Legal Standards
Plaintiff brings her motion pursuant to Rule 37(c), which states in pertinent part:
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 on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Fed. R. Civ. P. 37(c)(1). "The imposition of sanctions for abuse of discovery under Fed.R.Civ.P. 37 is a matter within the discretion of the trial court." Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir.), cert. denied, 513 U.S. 1000 (1994). A district court abuses its discretion if the exclusion of testimony results in fundamental unfairness in the trial of the case. Id. (citing Smith v. Ford Motor Co., 626 F.2d 784, 794 (10th Cir. 1980), cert. denied, 450 U.S. 918 (1981)).
However, Rule 37 allows the Court to impose lesser sanctions than the prohibition of evidence. See Fed.R.Civ.P. 37(a)(1)(A)-(C). When determining the appropriate sanction, Rule 37 "require[s] the court to keep considerations of justice in mind when imposing sanctions for rule violations." Olcott v. Del. Flood Co., 76 F.3d 1538, 1555 (10th Cir. 1996). While the rule "provide[s] a list of potential options for the court's consideration, including costs and fee shifting, ...