United States District Court, D. Colorado
FORT COLLINS NISSAN, INC. D/B/A TYNAN'S KIA, a Colorado Corporation, Plaintiff,
KIA MOTORS AMERICA, INC., a California Corporation, Defendant.
ORDER ON MOTION TO STRIKE
Y. Wang United States Magistrate Judge.
matter comes before the court on Defendant Kia Motors
America, Inc.'s (“Defendant” or
“KMA”) Motion to Strike Second Amended Expert
Report of Kenneth R. Rosenfield (“Motion to
Strike” or “Motion”), filed October 25,
2018. [#60]. The undersigned considers the Motion
pursuant to 28 U.S.C. § 636(b), the Order Referring Case
dated March 30, 2017 [#4], and the Memorandum dated October
26, 2018 [#61]. Upon careful review of the Motion and
associated briefing, the comments offered at the October 4,
2018 Discovery Hearing, the applicable case law, and the
entire docket, this court DENIES the Motion
to Strike for the reasons stated herein.
court has discussed the background of this matter in its
prior Order, see [#43], and does so here only as it
pertains to the instant Motion. Plaintiff Fort Collins
Nissan, Inc. d/b/a Tynan's Kia (“Plaintiff”
or “Tynan's”), a franchised motor vehicle
dealer, operates a franchised motor vehicle dealership that
sells and services KMA products. [#1 at ¶¶ 1-2, 7].
Based on United States Census Tract data each dealer is
assigned a specific territory-known as the Area of Primary
Responsibility (“APR”)-that is used “for
measuring sales performance and assigning sales incentive
objectives, ” among other things. See
[id. at ¶¶ 11-12, 14]. Tynan's alleges
that KMA granted another dealership permission to relocate
seven miles closer to Plaintiff's dealership in 2012, but
did not adjust Plaintiff's APR until 2015, which led to
Tynan's not receiving “significant monies under the
Incentive Programs as a result of its failure to meet
unfairly inflated sales objectives.” See
[id. at ¶¶ 20-28]. KMA also allegedly
refused Plaintiff's proposal to establish a dealership in
Aurora, Colorado and denied Plaintiff's request to
relocate. See [id. at ¶¶ 29-34,
43-46]. Tynan's alleges that KMA's refusals, based on
faulty APR metrics, resulted in significant lost profits.
See [id. at ¶¶ 34, 45].
initiated this suit on March 29, 2017. [#1]. This court held
a Scheduling Conference with the Parties on June 20, 2017.
See [#24]. Relevant here, the Scheduling Order
originally set the affirmative experts deadline as January
19, 2018, the rebuttal experts deadline as February 16, 2018,
and the discovery deadline as April 2, 2018. See
[#25 at 7]. Following several requests for extensions of
time, the undersigned extended the affirmative experts
deadline to May 31, 2018, the rebuttal experts deadline to
July 2, 2018, and the discovery deadline to August 30, 2018.
31, 2018, Tynan's filed on the court's docket its
designation of affirmative experts; these included Edward
Stockton and Kenneth Rosenfield (“Mr.
Rosenfield”). See [#48 at 1]. Then, on
September 27, 2018, Plaintiff filed its Motion for Leave to
Supplement Expert Report of Kenneth Rosenfield and Supporting
Memorandum (the “Motion to Supplement”). [#52].
Because discovery had closed, Plaintiff moved to reopen
discovery for the sole purpose of providing Defendant with
Mr. Rosenfield's Second Amended Expert Report (the
“Second Amended Report”) see [#59 at
4-6; #64 at 2], explaining that Plaintiff learned at Mr.
Rosenfield's deposition that Mr. Rosenfield had used the
“wrong set of data” in compiling his affirmative
expert report. See [#52 at 1-5]. This court struck
the Motion to Supplement and set the Parties for an informal
discovery dispute conference. See [#54]. At the
October 4, 2018 informal discovery dispute conference, this
court directed Plaintiff to serve KMA with the Second Amended
Report and permitted KMA to file a Motion to Strike if, after
a robust meet and confer, Defendant believed the Second
Amended Report was not proper under Rule 26(e) of the Federal
Rules of Civil Procedure. See [#56]. The instant
KMA argues that the Second Amended Report is not proper under
Rule 26(e) because it is a “new, substitute report,
based on different data.” [#59 at 11]. KMA further
contends that even if the Second Amended Report is a
supplement, it is untimely under Rule 26 and Tynan's
untimeliness was not substantially justified or harmless
under Rule 37(c). See [id. at 13-16].
Plaintiff counters that the Second Amended Report is a proper
supplement that Plaintiff timely served and, if not,
Tynan's untimeliness was substantially justified and
harmless. See [#64 at 3-9]. The Motion is now ripe
26(a)(2) of the Federal Rules of Civil Procedure provides
that “a party must disclose to the other parties the
identity of any witness it may use at trial, ”
generally accompanied by a written report “if the
witness is one retained or specially employed to provide
expert testimony in the case.” Fed.R.Civ.P.
26(a)(2)(A)-(B). Like initial disclosures, “[t]he
parties must supplement these disclosures when required under
Rule 26(e), ” Fed.R.Civ.P. 26(a)(2)(E), if the party
discovers that the disclosure is “incomplete or
incorrect” in some “material respect, ”
see Caldwell-Baker Co. v. S. Illinois Railcar Co.,
No. CIV.A.00-2380-CM, 2001 WL 789389, at *1 (D. Kan. June 5,
2001). If incomplete or incorrect, the disclosing-party must
supplement its disclosures in a timely manner. See Cohen
v. Pub. Serv. Co. of Colorado, No. 13-cv-00578-WYD-NYW,
2015 WL 6446948, at *2 (D. Colo. Oct. 26, 2015) (discussing
timeliness of supplementation centers on when the
disclosing-party “reasonably should know” that
its disclosures are incomplete or incorrect. See Jama v.
City & Cty. of Denver, 304 F.R.D. 289, 299-300 (D.
Colo. 2014). But such supplementation must be made no later
than the time a party's pretrial disclosures are due
under Rule 26(a)(3). Fed.R.Civ.P. 26(e)(1)(a), (e)(2). Under
this District's Local Rules of Civil Practice,
disclosures under Rule 26(a)(3) of the Federal Rules of Civil
Procedure must be made by the deadline for the submission of
the Final Pretrial Order. D.C.COLO.LCivR 26.1(b); Auraria
Student Housing at the Regency, LLC v. Campus Vill.
Apartments, LLC, No. 10-cv-02516-WJM-KLM, 2015 WL 72360,
*3 (D. Colo. Jan. 5, 2015); Buben v. City of Lone
Tree, No. 08-cv-00127, 2010 WL 4810632, *2 (D. Colo.
Nov. 19, 2010). Nevertheless, even if made on or before the
deadline, the court will also consider a party's
diligence in obtaining the supplemental information, the
length of time to supplement once the party obtained the
supplemental information, and other relevant facts to
determine whether a party's course of conduct in
supplementing frustrates the purpose of Rule 26 to promote
full and orderly pretrial disclosure. See e.g.,
Jama, 304 F.R.D. at 299-300 (discussing timeliness
under Rule 26(e)); Harvey v. United States, Civil
Action No. 04-cv-00188-WYD-CBS, 2005 WL 3164236, *13 (D.
Colo. Nov. 28, 2005).
court finds a violation of Rule 26(e), it must consider the
imposition of an appropriate sanction. Unless substantially
justified or harmless, Rule 37(c)(1) precludes a party from
using information to supply evidence on a motion or at trial
if that party fails to disclose the information as required
by Rule 26(e). Fed.R.Civ.P. 37(c)(1). The court has broad
discretion in determining whether the Rule 26 violation was
substantially justified or harmless, and the court need not
make explicit findings in this regard. See
Woodworker's Supply, Inc. v. Principal Mut. Life Ins.
Co., 170 F.3d 985, 993 (10th Cir. 1999). Nonetheless,
several factors guide the court's determination,
including (1) the prejudice and surprise to the party against
whom the testimony is offered; (2) the ability of the party
to cure the prejudice; (3) the extent to which introducing
such testimony would disrupt the trial; and (4) the moving
party's bad ...