United States District Court, D. Nevada
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,
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.
Ferenbach United States Magistrate Judge.
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.
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.
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
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.
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.
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
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).
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.
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.”
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.
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.