Rybolt v. Carrington Mortgage Services, LLC

550 B.R. 422, 2016 Bankr. LEXIS 2148
CourtUnited States Bankruptcy Court, N.D. Indiana
DecidedJanuary 22, 2016
DocketCASE NO. 08-13079; PROC. NO. 14-1075
StatusPublished

This text of 550 B.R. 422 (Rybolt v. Carrington Mortgage Services, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rybolt v. Carrington Mortgage Services, LLC, 550 B.R. 422, 2016 Bankr. LEXIS 2148 (Ind. 2016).

Opinion

DECISION AND ORDER ON MOTION IN LIMINE

Robert E. Grant, Chief Judge, United States Bankruptcy Court

On January 22,2016.

The plaintiff has filed a motion in limine, asking the court to preclude the defendant from offering into evidence exhibits and from calling three witnesses it has included on the parties’ joint pretrial order. Although the federal rules do not explicitly authorize such motions, the practice has developed as part of the court’s inherent authority to manage trials, Luce v. U.S., 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), and is a matter committed to the court’s discretion. See, David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003); Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir.2002); Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996). Unlike many motions in limine, this one is not based upon the Federal Rules of Evidence. It is, instead, based upon Rules 26(a), (e) and 37(c)(1) of the Federal Rule of Civil Procedure. Plaintiff contends the defendant failed to make a proper or timely disclosure of the documents and witnesses in issue and, as a consequence, is not allowed to use them at trial.

Rule 26 of the Federal Rules of Civil Procedure requires a party to voluntarily provide the name, address and telephone number of individuals and a copy (or description) of the documents it may use at trial, and to timely supplement those initial disclosures if it learns that they were incomplete or incorrect in some material respect, unless the information had otherwise been made known to the opposing party during the discovery process or in writing. Fed.R.Civ.P. Rule 26(a), (e). The purpose of the rule is to expedite the discovery process, make it more efficient and less expensive, and to prevent unfair surprise at trial. See, In re FedEx Ground Package System, Inc. Employment Practices Litigation, 2007 WL 2128164 *2-3 (N.D.Ind.2007); Gorman v. Chicago Housing Authority, 1991 WL 10893 *2 (N.D.Ill.1991); In re Eisaman, 503 B.R. 95, 96 (Bankr.N.D.Ind.2013); Sender v. Mann, 225 F.R.D. 645, 650, 651 (D.Colo.2004), It is not an obligation to be taken lightly. “Counsel who make the mistake of treating Rule 26[] disclosures as a technical formality, rather than as an efficient start to relevant discovery, do their clients no service and ... risk the imposition of sanctions.” Sender, 225 F.R.D. at 650. Those sanctions are found in Rule 37. If a party fails to make the required disclosures, it may not “use that [425]*425information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. Rule 37(c)(1). The burden of proving substantial justification or harmlessness is on the disobedient party. Finley, 75 F.3d at 1230; Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir.1998). See also, Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir.2008); Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir.2001).

This case began in July 2014. The original scheduling order required the initial disclosures to be made by November 14, 2014 and all discovery to be completed March 15, 2015. Scheduling Order, dated October 14, 2014. At the behest of the parties and for various reasons, some deadlines were changed so that, ultimately, the deadline for making the initial disclosures was December 15, 2014, and the deadline for completing all discovery became September 22, 2015. See, Scheduling Stipulation, approved November 3, 2014; Amended Scheduling Stipulation; approved January 28, 2015; Joint Motion for Pre-Trial Conference, filed June 2, 2015; Order Revising Litigation Schedule, dated June 24, 2015. A joint pre-trial order was then to be filed by October 15, 2015. Order Revising Litigation Schedule, dated June 24, 2015.

When it came to identifying individuals the defendant might use to support its position at trial, Carrington’s initial disclosures listed: the plaintiff, Heidi Rybolt; witnesses identified by the plaintiff; and “any individuals later designated under Fed.R.Civ.P. 30(b)(6).” Carrington Mortgage Services, LLC’s Initial Disclosures, filed December 15, 2014, ¶A(l)-(4). That initial disclosure was never supplemented. Then, in its portion of the pretrial order, Carrington identified the three individuals it intends to call as witnesses: Mark Madden, Clay Gordon and Mike Caballero. See, Joint Pre-Trial Order, filed October 15, 2015, ¶ J(2). That revelation helped prompt the present motion.

Carrington’s disclosure did not comply with its obligations under the rule and was obviously incomplete. Rule 26(a)(1)(A)© clearly requires disclosure of an individual’s “name and, if known address and phone number.” If job titles and generic descriptions will not do, see, Ballinger v. Casey’s General Store, Inc., 2012 WL 1099823 * 1-2 (D.S.D.Ind.2012); Walton v. Best Buy Co., Inc., 2010 WL 1494612 *5 (E.D.Mich.2010), to refer to an unnamed individual who may be identified later certainly will not. Moreover, that original, inadequate disclosure was never supplemented. So the question becomes whether the identity of those individuals had “otherwise been made known ... during the course of discovery,” thereby relieving Carrington of the duty to supplement its disclosure. Fed. R. Civ P. Rule 26(e)(1)(A).

As to Mike Caballero, the plaintiff was made aware of his identity during the course of discovery; in fact he was scheduled to be deposed. Prior to that deposition, the plaintiff received an audio file of the conversation about which they wished to depose him, and decided the deposition was not necessary. Given this, there was no need to supplement the disclosures as to him, no violation of Rule 37(c)(1), and the defendant will be permitted to call him as a witness.

As for the remaining two witnesses— Mark Madden and Clay Gordon — their identities were never disclosed to the plaintiff prior to the pretrial order. That is curious because they “are the 2 individuals Carrington uses for trial work.” Car-rington’s Objection to Plaintiffs Motion in Limine, ¶35. That being the case, the [426]*426court sees no reason why this information was not included in defendant’s initial disclosure; but it was not.

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Related

Luce v. United States
469 U.S. 38 (Supreme Court, 1984)
Wilson v. Bradlees of New England, Inc.
250 F.3d 10 (First Circuit, 2001)
Terence Tribble v. Nicholas Evangel
670 F.3d 753 (Seventh Circuit, 2012)
Salgado v. General Motors Corporation
150 F.3d 735 (Seventh Circuit, 1998)
Lori David v. Caterpillar, Incorporated
324 F.3d 851 (Seventh Circuit, 2003)
Torres v. City of Los Angeles
548 F.3d 1197 (Ninth Circuit, 2008)
Finley v. Marathon Oil Co.
75 F.3d 1225 (Seventh Circuit, 1996)
Tolerico v. Home Depot
205 F.R.D. 169 (M.D. Pennsylvania, 2002)
Sender v. Mann
225 F.R.D. 645 (D. Colorado, 2004)
Hard Surface Solutions, Inc. v. Sherwin-Williams Co.
271 F.R.D. 612 (N.D. Illinois, 2010)
RBS Citizens, N.A. v. Husain
291 F.R.D. 209 (N.D. Illinois, 2013)

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Bluebook (online)
550 B.R. 422, 2016 Bankr. LEXIS 2148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rybolt-v-carrington-mortgage-services-llc-innb-2016.