Old Country Toyota Corp. v. Toyota Motor Distributors, Inc.

168 F.R.D. 134, 1996 WL 490194
CourtDistrict Court, E.D. New York
DecidedAugust 26, 1996
DocketNo. CV 93-5768 (TCP)
StatusPublished
Cited by2 cases

This text of 168 F.R.D. 134 (Old Country Toyota Corp. v. Toyota Motor Distributors, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Old Country Toyota Corp. v. Toyota Motor Distributors, Inc., 168 F.R.D. 134, 1996 WL 490194 (E.D.N.Y. 1996).

Opinion

MEMORANDUM OPINION AND ORDER

BOYLE, United States Magistrate Judge.

This action was removed to the federal court in December, 1993. It involves claims by the plaintiffs, Old Country Toyota Corp. and John S. Bucalo, Jr., a new car dealership and its principal owner, respectively (hereinafter referred to as “Old Country”) for breach of contract arising out of new car allocations made by the defendant, distributors of new vehicles, Toyota Motor Distributors, Inc. and Toyota Motor Sales, U.S.A. (hereinafter called “Toyota Distributors”).

After approximately one and one-half years of litigation, by order dated June 30, 1995, the court set a discovery completion date of November 15, 1995 for fact witness discovery and April 1,1996 for expert discovery. Within this timetable the scheduling order further directed that Old Country serve its “Fed.R.Civ.P. 26(a)(2) material by January 10, 1996,” and that Toyota Distributors serve its expert materials by March 1, 1996.

By order dated April 15, 1996, the latter order was modified due to the fact that the parties had not completed document production. Old Country Toyota was granted until May 31, 1996 to provide “its expert report and all other expert disclosure in compliance with Rule 26(a)(2)____” However, Old Country failed to adhere to this schedule. By letter motion dated June 11, 1996 Toyota Distributors’ counsel requested sanctions in the form of preclusion of expert testimony by Old Country. By letter dated June 11, 1996 Old Country’s counsel responded stating that on May 14, 1996 Toyota Distributors had located 2900 pages of additional documents which had caused the delay. Old Country requested that the court address this and other issues at a scheduling conference set for July 11, 1996. By letter motion dated June 28,1996 Toyota Distributors—citing the above schedule—further advised the court that Old Country had still not filed its expert report and once again requested that the court impose sanctions in the form of precluding Old Country from introducing expert testimony at the trial.

This matter was fully discussed at the scheduling conference conducted on July 11, 1996. Old Country’s counsel made assurances that an adjournment to July 26, 1996 would enable him to provide a complete report. Based on these representations, the court extended expert discovery. Old Country was directed to serve their expert report in full compliance with Rule 26 no later than July 26, 1996. Toyota Distributors were di[136]*136rected to serve their expert report by September 27, 1996; expert depositions were directed to be completed by October 11,1996.

By letter motion dated August 1, 1996, Toyota Distributors counsel renews the request for sanctions based on Old Country’s failure to file a final report on July 26, 1996. Counsel for Toyota distributors states that on July 26, 1996, Old Country provided an expert report by Dr. Ernest H. Manuel, Jr. of The Fontana Group, Inc. The author of the report described it as his “preliminary assessment.” See Letter of Ernest H. Manuel, Jr., dated July 25, 1996 at 1. The report further states that “the calculations are draft and preliminary and subject to verification and possible correction.” Id. The report further states that “I may reach additional conclusions as my analysis continues and as discovery proceeds and additional documents and deposition testimony become available.” Id. at 1-2.

Old Country opposes the motion for sanctions stating that his clients have complied with the scheduling order “with one exception”. This exception is described as an “extremely expensive1 calculation for the expert to perform.” Letter of Scott A Brody, dated August 8, 1996 at 1. Mr. Brody further stated that if he were to proceed with the final calculations “all opportunity to settle this case would be eliminated.” Mr. Brody further states that he expected to know whether the case will settle or proceed to trial by Friday, August 9,1996.

Old Country’s counsel offers no explanation for the change in position with respect to the assurances made on the record on July 11, 1996. Moreover, Old Country makes no motion for a further extension of time to file a completed expert report. Instead, plaintiffs’ counsel appears to assume that he has the right to indefinitely extend the dates set for filing their final expert report. Although Old Country stated that it would know whether the case would settle by Friday, August 9, 1996, the court has received no further correspondence from Old Country. Thus, Old Country has never advised the court whether it is willing to undertake the “extremely expensive calculation” which they have been reluctant to undertake thus far. In the meanwhile Toyota Distributors is unable to go forward with their expert report since it has not received a final report to turn over to their expert. In effect, Old Country has imposed a de facto stay on discovery without court approval.

DISCUSSION

The court grants Toyota Distributors’ motion requesting preclusion to the following extent: Old Country’s expert report dated July 25, 1996, as supplemented by their August 8, 1996 correspondence and accompanying data, shall be deemed to constitute their final report. Fed.R.Civ.P. 37(b)(2)(B); see Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991) (holding that “[a] district court has wide discretion in imposing sanctions, including severe sanctions, under Rule 37(b)(2)”) (citing Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir.1990); John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir.1988)); see also Dimensional Sound, Inc., v. Rutgers University, 1996 WL 11244, at *3 (S.D.N.Y. Jan. 10, 1996) (stating that the purpose of Rule 37 sanctions are to ensure that a party does not benefit from noncompliance of discovery) (citing Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir.1994)).

Old Country is precluded from serving any further revisions or supplements except to the extent that they are under a continuing obligation, pursuant to § 11(B)(2) of the Civil Justice Expense and Delay Reduction Plan to supplement “if the party learns that the information disclosed is no longer correct” or “to contradict or rebut evidence on the same subject matter identifiable by another party, within 30 days after the disclosures made by such other party.”2 Sieck v. Russo, 869 F.2d 131, 134 (2d Cir.1989) (“We ... prefer to ... provide the teeth to enforce discovery orders by leaving it to the district court to [137]*137determine which sanction from among the available range is appropriate.”); see Quiles v. Beth Israel Medical Ctr., 168 F.R.D. 15, 17-18 (S.D.N.Y.1996); see also Fed.R.Civ.P. 37

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Akeva LLC v. Mizuno Corp.
212 F.R.D. 306 (M.D. North Carolina, 2002)
Southern Union Co. v. Southwest Gas Corp.
180 F. Supp. 2d 1021 (D. Arizona, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
168 F.R.D. 134, 1996 WL 490194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/old-country-toyota-corp-v-toyota-motor-distributors-inc-nyed-1996.