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Tyus v. Wendy's of Las Vegas, Inc.

United States District Court, D. Nevada

July 17, 2017

LATONYA TYUS, an individual; DAVID HUNSICKER, an individual; LINDA DAVIS, an individual; TERRON SHARP, an individual; COLLINS KWAYISI, an individual; LEE JONES, an individual; RAISSA BURTON, an individual; JERMEY MCKINNEY, an individual; and FLORENCE EDJEOU, an individual, all on behalf of themselves and all similarly situated individuals, Plaintiffs,
v.
WENDY'S OF LAS VEGAS, INC., an Ohio corporation; CEDAR ENTERPRISES, INC., an Ohio Corporation; and DOES 1 through 100, inclusive, Defendants.

          ORDER DEFENDANTS' RENEWED MOTION TO STRIKE PLAINTIFFS' EXPERT DECLARATION, STRIKE PLAINTIFFS' PURPORTED EXPERT WITNESS, AND FOR SANCTIONS (ECF NO. 88)

          Cam Ferenbach United States Magistrate Judge.

         Before the Court is Defendants Wendy's of Las Vegas, Inc. and Cedar Enterprises, Inc.'s Renewed Motion to Strike Plaintiffs' Expert Declaration, Strike Plaintiffs' Purported Expert Witness, and for Sanctions (ECF No. 88). Plaintiffs Latonya Tyus, David Hunsicker, Linda Davis, Terron Sharp, Collins Kwayisi, Lee Jones, Raissa Burton, Jermey McKinney and Florence Edjeou filed a Response to Defendants' Renewed Motion to Strike (ECF No. 89) and Defendants filed a Reply (ECF No. 90). For the reasons stated below, Defendants' Motion to Strike is denied.

         I. Background

         This case arises from a class action brought by Plaintiffs regarding Nevada's Minimum Wage Amendment (“MWA”) to the Nevada Constitution. In 2006, Nevada voters approved the MWA, which “guaranteed to each Nevada employee … a particular hourly wage.” See ECF No. 3 at 2. Plaintiffs were employees of Defendants, who are owners and operators of Wendy's Restaurants in southern Nevada. Id. Plaintiffs allege that Defendants paid employees “below the upper-tier hourly minimum wage level” in violation of the MWA. Id. Plaintiffs filed the instant action on May 9, 2014. See ECF No. 1.

         On September 11, 2014, the parties submitted a proposed Joint Discovery Plan and Scheduling Order, which this Court approved one day later. See ECF Nos. 16, 17. Because this matter involved a putative class action, discovery was split into two phases: (1) the Class Certification Phase I; and (2) the Damages and Liability Phase II. See ECF No. 17 at 3. Under the Scheduling Order, the last day to disclose experts was January 2, 2015, and rebuttal experts was February 2, 2015. Id. at 4. For dispositive motions, the deadline was April 1, 2015. Id. The Scheduling Order stated that “[e]ach phase will be marked at its close by dispositive motions on the issues of the respective phase.” Id. at 3, 9 (“The Parties agree to limit their discovery in each Phase to the particular aims and subject matter of each respective Phase ….”).

         After the District Court decides the class certification motion, the parties may begin the process of setting deadlines and dates for Phase II of discovery (Damages and Liability). Id. at 4. In particular, the Scheduling Order requires a status conference be held 14 days after the District Court's ruling on class certification to set deadlines and dates for Phase II discovery. Id. On December 19, 2014, the parties submitted a joint stipulation to amend the original discovery plan and scheduling order, which was approved by this Court on December 23, 2014. See ECF No. 33. Under the Amended Scheduling Order, the deadline to disclose experts was extended from January 2, 2015 to March 3, 2015; the deadline to disclose rebuttal experts was extended from February 2, 2015 to April 3, 2015; the close of Phase I discovery was extended from March 2, 2015 to May 1, 2015; and the deadlines to file a motion for certification and dispositive motions was extended from April 1, 2015 to June 1, 2015. See ECF No. 33 at 3-4.

         On March 12, 2015, Defendants filed a Motion for Partial Judgment on the Pleadings Pursuant to FRCP 12(C) With Respect to Punitive Damages, (ECF No. 43), and on April 30, 2015, Plaintiffs filed a Motion for Partial Summary Judgment on Liability as to Plaintiff Collins Kwayisi's First Claim for Relief, (ECF No. 48). On May 13, 2015, Plaintiffs filed a Motion for Class Certification. See ECF No. 51. On the following day, Defendants filed a Motion for Summary Judgment. See ECF No. 52. Plaintiffs filed a Response to Defendants' Motion for Summary Judgment on June 22, 2015. See ECF No. 60. Plaintiffs attached as an Exhibit to their Response a Declaration of Matthew T. Milone (“Milone”), an expert witness retained by Plaintiffs' counsel. See ECF No. 60-2. On July 9, 2015, Defendants filed a Motion to Strike Plaintiffs' Expert Declaration, Strike Plaintiffs' Purported Witness, and for Sanctions. See ECF No. 64.

         On August 21, 2015, United States District Court Judge Gloria Navarro issued an Order on the Defendants Motion for Partial Judgment on the Pleadings (ECF No. 43) and Plaintiffs' Motion for Partial Summary Judgment (ECF No. 48), among other things, certifying a question of law to the Nevada Supreme Court about interpreting the MWA. See ECF No. 71 at 11. Judge Navarro denied all other pending motions without prejudice with permission to re-file upon resolution of the Court's certified question to the Nevada Supreme Court. Id. at 12. On May 2, 2016, Plaintiffs served a seventh supplemental disclosure of documents, which disclosed the expert declaration of Milone. See ECF No. 88-7 at 8-10 (“Plaintiffs may use the following … to support their claims … Plaintiffs' Merits and Liability-Phase Expert Report of Milone dated May 1, 2016 and current Curriculum Vitae (TYUS 000882 - TYUS 000905)[.]”).

         On October 27, 2016, the Nevada Supreme Court answered the certified question. See MDC Rests., LLC v. Eighth Judicial Dist. Court of State in & for County of Clark, 383 P.3d 262, 265 (Nev. 2016); see also ECF No. 81 at 2. In light of this ruling, Plaintiffs filed a Renewed Motion for Class Certification on December 15, 2016. See ECF No. 76. The next day, Defendants filed a Renewed Motion for Summary Judgment. See ECF No. 77. On May 22, 2017, Plaintiffs filed a Response to Defendants' Renewed Motion for Summary Judgment, again attaching as an exhibit a declaration of Milone, an expert witness. See ECF No. 84-2. Defendants object to the Plaintiffs' designation of Milone as an expert witness and the expert declaration. As a result, on June 5, 2017, Defendants brought the instant Motion to Strike under Fed.R.Civ.P. 26(a)(2)(A)-(B) and 37(c)(1).

         II. Discussion

         A. Arguments

         Defendants' Motion requests that this Court strike Plaintiffs' designation of Milone as an expert and the declaration of Milone that Plaintiffs attached as an exhibit to their Response to Defendants' Motion for Summary Judgment for two reasons. First, Defendants assert that Plaintiffs' expert disclosure through a deficient and untimely declaration violates the Federal Rules of Civil Procedure and the Amended Scheduling Order. See ECF Nos. 88 at 2; 90 at 2. Second, Defendants claim the Plaintiffs' expert declaration is improper and highly prejudicial because it sets “forth legal conclusions that are exclusively in the province of this Court.” Id. at 2, 12.

         Defendants first direct the Court to the Amended Scheduling Order. Under that Order, the deadline to disclose experts was March 3, 2015. See ECF Nos. 88 at 8-9; 90 at 3-4. Defendants argue that the Plaintiffs “missed that deadline by two years and there is no excuse for their delay.” See ECF Nos. 90 at 3; 88 at 10 (“Plaintiffs' expert designation … failed to comply with Rule 26(a)(2)(D)'s requirement that the expert be disclosed at the time ordered by the Court in its Amended Scheduling Order.”). And “[d]ue to Plaintiffs' failure to designate any experts, Defendants had no cause to retain rebuttal experts on April 3, 2015 and no reason to conduct any additional discovery regarding expert opinions.” See ECF No. 88 at 9. This “untimely and non-compliant expert disclosure, ” Defendants argue, is “highly prejudicial.” Id.

         In addition to being untimely under Fed.R.Civ.P. 26(a)(2)(D) and the Amended Scheduling Order, Defendants assert that the Milone declaration fails to comply with the substantive requirements under Fed.R.Civ.P. 26(a)(2)(B). See ECF Nos. 88 at 9-10; 90 at 8. According to Defendants, the Plaintiffs have not provided an expert's written report under Fed.R.Civ.P. 26(a)(2)(B). Defendants also argue that even if the Plaintiffs' expert declaration is construed as the written report mandated under Rule 26, it is deficient and incomplete. Id. Defendants point to language in the Milone expert declaration which states that “the opinions in this Declaration are my preliminary opinions and are subject to the opinions in my final report.” See ECF Nos. 88 at 9; 84-2. The Declaration, Defendants assert, “provides no further elucidation as to when this ‘final report' will be forthcoming or how it will supplement or supersede his Declaration.” Id. at 9-10. Defendants also argue that the Declaration does not contain “(i) a complete statement of all opinions to which the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them” and a “list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition.” See ECF Nos. 88 at 9-10. Therefore, because Plaintiffs have failed to “provide information or identify a witness as required by Rule 26(a), ” Defendants argue that under Rule 37(c)(1) “Plaintiffs' Declaration from Milone should be struck” and “Plaintiffs should not be allowed to use Milone to supply evidence on a motion, at a hearing or at trial.” Id. at 10-11; see also ECF No. 90 at 8. Defendants further assert that the Court should strike Plaintiffs' expert declaration because it “has opined on legal conclusions that are the exclusive province of this Court.” Id. at 12; see also ECF No. 90 at 9. Defendants seek their reasonable costs, including attorneys' fees, as a sanction against Plaintiffs. Id. at 2, 13.

         Plaintiffs' Response argues that the designation of Milone as an expert and Milone's declaration were not untimely because Milone is their Phase II Damages and Liability expert. See ECF No. 89 at 5, 10. Plaintiffs claim that Phase II discovery or disclosure deadlines have not yet been set, including any expert disclosure deadlines. Id. at 2. Thus, their expert declaration “was filed well ahead of any Phase II discovery or disclosure deadlines.” Id. According to Plaintiffs, all of the dates governing expert disclosures thus far in this case are “regarding Phase I of discovery (Class Certification).” Id. at 3. Plaintiffs assert that “Defendants' motion for summary judgment has nothing to do with class certification or Phase I; it is a Phase II motion, designed to be dispositive of the merits of the case.” Id. at 5. Plaintiffs maintain that they “did not discern the need for expert opinion regarding the issue of class certification” so they “did not retain or disclose a class certification expert.” Id. at 5. The Milone declaration “came in response to [the] Phase II liability motion filed by Defendants.” Id. Plaintiffs argue that “[n]o one forced Defendants to file a liability-phase summary judgment motion before class certification was decided, ” and they “should not be penalized.” Id. at 6, 10. Plaintiffs also dispute that the expert declaration opines on ultimate issues of law in this case because “he offers straightforward summaries and reflections upon otherwise technical health plans that are of use to the Court an[d]-at the some future point-the jury.” See ECF No. 89 at 9-10.

         B. ...


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