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Greene v. Alan Waxler Group Charter Services, LLC

United States District Court, D. Nevada

March 18, 2014

ROBERT A. GREENE, et al., Plaintiff(s),


NANCY J. KOPPE, District Judge.

Pending before the Court is Defendants' motion for sanctions pursuant to Rule 37(c). Docket No. 149.[1] Plaintiffs filed a response and Defendants filed a reply. Docket Nos. 156, 157. The motion came on for hearing on February 28, 2014. See Docket No. 164. The Court also received supplemental briefing from parties. Docket Nos. 168, 169. For the reasons discussed more fully below, the Court hereby GRANTS the motion for sanctions in part and DENIES it in part.


This is a wage and hour lawsuit brought on behalf of limousine drivers, filed in April 2009. Although an exact date is not clear from the record, initial disclosures appear to have been due in early 2010.[2] The Court subsequently extended the discovery cutoff on two occasions, but discovery closed on June 30, 2011. See Docket No. 69. Significantly after the close of discovery, on August 16, 2012, Defendants filed a motion to re-open discovery. Docket No. 108. That motion argued that, inter alia, neither side had conducted meaningful discovery. See, e.g., id. at 2-3. The undersigned held a hearing on that motion, and denied it. Docket No. 121.[3] Defendants objected to that order, Docket No. 123, and Judge Mahan overruled the objections, Docket No. 131.

On October 25, 2013, Defendants filed the pending motion for sanctions seeking, inter alia, casedispositive sanctions against Plaintiffs for failing to provide initial disclosures. See Docket No. 149. The case is now set for trial for June 16, 2014. See Docket No. 161.


Rule 26(a)(1)(A) provides that parties must provide initial disclosures to the opposing parties without awaiting a discovery request. The disclosures must include: (i) the name of each individual likely to have discoverable information that the disclosing party may use to support its claims and defenses; (ii) a copy of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses; and (iii) a computation of each category of damages claimed by the disclosing party. See Rule 26(a)(1). In the event that a party learns that its disclosures are incomplete or inaccurate, it has a duty to supplement them "in a timely manner." See Rule 26(e).

When a party fails to meet its initial disclosure obligations, the Court turns to Rule 37(c) to determine whether sanctions are appropriate. Rule 37(c)(1) provides that a non-compliant party is "not allowed to use the information... at trial, unless the failure was substantially justified or harmless." The party facing the sanction has the burden of showing substantial justification or harmlessness. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001). Even where nondisclosure was neither harmless nor justified, however, the Court is not required in all instances to exclude evidence as a sanction. Jackson v. United Artists Theatre Circuit, Inc., 278 F.R.D. 586, 594 (D. Nev. 2011). Rule 37(c)(1) also enumerates a number of other potential sanctions, including payment of reasonable expenses incurred, an order that the movant may inform the jury of the opposing party's failure, and any other "appropriate" sanction, including those listed in Rule 37(b)(2)(A)(i)-(vi).

The court has wide discretion in determining the appropriate sanction. See Yeti, 259 F.3d at 1106. In determining the appropriate sanction, the Court looks to five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. See Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir. 1997). Moreover, where evidence exclusion "amount[s] to dismissal of a claim, the district court [is] required to consider whether the noncompliance involved willfulness, fault, or bad faith." R&R Sails, Inc. v. Insurance Co. Of Penn., 673 F.3d 1240, 1247 (9th Cir. 2012).


With the applicable standards in mind, the Court turns to its analysis.[4] Although Defendants assert that several categories of initial disclosures were not provided, see Docket No. 149 at 2 (asserting non-disclosure of witnesses and documents in Plaintiffs' possession, as well as a computation of damages), their arguments focus on the failure to provide a damages calculation. Accordingly, the Court similarly focuses its analysis on the damages calculation.[5]

A. Plaintiffs Failed to Timely Provide Initial Disclosures

Plaintiffs have conceded that they did not timely provide the initial disclosures. See Hearing Tr. 2/28/14 at 20:6-8 ("The Court: Well, you didn't do initial disclosures though. Mr. Smith: No, we didn't."); see also Docket No. 156 at 5. Nonetheless, in their supplemental brief, Plaintiffs assert that "Drivers did provide a Damage Calculation to AWG based upon the available wage records in January 2012." Docket No. 169 at 13 (emphasis omitted). The cited correspondence, however, is a "Confidential Settlement Discussion[]" in which Plaintiffs' counsel provided Defendants "with a settlement range based on how [he] value[d] the case to begin [] settlement discussions." See Docket No. 169-9. The Court finds this email does not show compliance with the initial disclosure obligations. First, it was provided more than six months after the discovery cut-off had already expired. See, e.g., Jackson, 278 F.R.D. at 593 (a party has "a duty to diligently obtain the necessary information and prepare and provide its damages computation within the discovery period"); see also Dayton Valley Investors, LLC v. Union P. R.R., 2010 U.S. Dist. Lexis 108232, *6-7 (D. Nev. Sept. 24, 2010) (finding party failed to comply with initial disclosure obligations notwithstanding disclosures made after the discovery cut-off). Second, Plaintiffs fail to explain how Defendants could rely on confidential settlement discussions to prepare their defenses in the same or similar manner as an ...

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