United States District Court, D. Nevada
before the court is defendant Smith's Food & Drug
Centers, Inc.'s (“defendant”) motion to
exclude plaintiff's claim for future medical expenses,
lost wages, and other miscellaneous damages. (ECF No. 27).
Plaintiff Ann Scott (“plaintiff”) filed an
untimely response (ECF No. 32), to which defendant replied
(ECF No. 41).
before the court is Magistrate Judge Ferenbach's report
and recommendation (“R&R”) regarding
defendant's motion to exclude. (ECF No. 31). Plaintiff
objected (ECF No. 33), and defendant responded (ECF No. 38).
instant action is a slip-and-fall case. (ECF No. 1-1). On
July 13, 2017, plaintiff slipped on a puddle of water that
collected in an indentation on the floor of aisle
the Smith's grocery store in Mesquire, Nevada. (ECF No.
43 at 2). As plaintiff fell, she hit her head on the metal
shelves, causing two subdural hematomas (brain bleeds), which
required emergency surgery. Id. Plaintiff filed the
instant action in Nevada state court in December 2017. (ECF
No. 1-1). Defendant timely removed the action to federal
court in February 2018. (ECF No. 1).
parties conducted their Rule 26(f) conference on February 19,
2018. (ECF No. 7). Pursuant to Rule 26(a)(1)(A)(iii),
plaintiff was obligated to make and disclose a reasonable
computation of her damages by April 2, 2018. (ECF No. 27 at
3); see also Fed. R. Civ. P. 26. Although plaintiff
included a “future medical” section in her
initial disclosure, she later withdrew it. (ECF No. 27 at
then moved to exclude plaintiff's claims for future
medical expenses, lost wages, and other miscellaneous damages
because plaintiff failed to disclose a computation of such
damages pursuant to Rule 26. See generally Id. The
deadline to respond to defendant's motion was October 19,
2018. (ECF No. 27 at 3). The day plaintiff's response was
due, plaintiff contacted defendant, who stipulated to extend
the deadline until October 25. (ECF No. 41 at 3).
the extension, plaintiff failed to respond. Judge Ferenbach
issued his R&R on November 2, 2018, granting
defendant's motion pursuant to Local Rule
(ECF No. 31). Five days after Judge Ferenbach's R&R
was entered, plaintiff finally responded (ECF No. 32) and
contemporaneously filed an objection to the R&R (ECF No.
may file specific written objections to the findings and
recommendations of a United States magistrate judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
LR IB 3-2. Where a party timely objects to a magistrate
judge's report and recommendation, the court is required
to “make a de novo determination of those
portions of the [report and recommendation] to which
objection is made.” 28 U.S.C. § 636(b)(1). The
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate.” Id. However, “a district
court may not reject the factual findings of a magistrate
judge on a motion to suppress without conducting a de novo
evidentiary hearing.” United States v.
Ridgway, 300 F.3d 1153, 1155 (citing United States
v. Bergera, 512 F.2d 391, 392-94 (9th Cir. 1975)).
to Local Rule IB 3-2(a), a party may object to the report and
recommendation of a magistrate judge within fourteen (14)
days from the date of service of the findings and
recommendations. Similarly, Local Rule 7-2 provides that a
party must file an opposition to a motion within fourteen
(14) days after service of the motion.
district court is vested with broad authority to impose
sanctions “as are just, ” so long as the court
does not abuse its discretion in doing so. Yeti by Molly,
Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th
Cir. 2001); Payne v. Exxon Corp., 121 F.3d 503, 507
(9th Cir. 1997); Stars' Desert Inn Hotel &
Country Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir.
1997); Sigliano v. Mendoza, 642 F.2d 309, 310 (9th
Cir. 1981). The Ninth Circuit “give[s] particularly
wide latitude to the district court's discretion to issue
sanctions under Rule 37(c)(1).” Yeti by Molly,
259 F.3d at 1106. Nonetheless, the Ninth Circuit has
identified five factors for the district court to consider
before imposing severe sanctions, which are instructive here:
“(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 other party; (4)
the public policy favoring the disposition of cases on their
merits; and (5) the availability of less drastic
sanctions.” Payne, 121 F.3d at 507 (discussing
dismissal and default); Hwang, 105 F.3d at 524.
full compliance with Rule 26(a) is not made, Rule 37(c)(1)
mandates some sanction, ‘the degree and severity of
which are within the discretion of the trial
judge.'” Cohen v. Hansen, No.
2:12-CV-01401-JCM-PAL, 2014 WL 1873968, at *11 (D. Nev. May
8, 2014) (quoting Keener v. United States, 181
F.R.D. 639, 641 (D. Mont. 1998)). Although information that a
party fails to timely disclose as required by Rule 26 is
ordinarily excluded, Rule 37 expressly carves out an
exception when “the failure was substantially justified
or is harmless.” Fed.R.Civ.P. 37(c)(1). Thus, the court
will consider the Payne factors and the express
language of Rule 37(c)(1) when determining the appropriate
sanctions in the instant case.
initial matter, Richard Harris Law Firm's failure to
disclose its computation of plaintiff's future damages is
not “substantially justified.” Nor is Richard
Harris Law Firm substantially justified in failing to respond
to the instant motion to exclude. To the contrary, after
defendant stipulated to extend the deadline for Richard
Harris Law Firm to respond the “new deadline was not
entered on [Richard Harris Law Firm's] master calendar
and an opposition to [defendant's] [m]otion for
[e]xclusion was not timely filed.” (ECF No. 32 at 2
n.1). Plaintiff's untimely response goes on to explain
the extensive disclosures that she made to defendant
regarding expert opinions, medical evidence, and damages.