United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Defendant HansaWorld USA, Inc.'s Motion to Strike  and Motion for Summary Judgment . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the Motion to Strike should be granted and that the Motion for Summary Judgment should be granted in part and denied in part.
Plaintiff Kimberlee Davenport asserts several claims against her former employer, HansaWorld USA, Inc. ("HansaWorld"), in this action. HansaWorld is a software company. Davenport was employed by HansaWorld as its sales manager for the United States and Canada prior to her termination. ( See Davenport Dep. [173-2] 138:2-5.) Davenport was also HansaWorld's corporate secretary. ( See Davenport Dep. [173-2] 118:8-18.) Davenport became an employee of HansaWorld Ireland, a related entity of HansaWorld, in May of 2009. ( See Davenport Aff. [15-3] at ¶ 5; Davenport Dep. [173-2] 47:8-18, 48:5-12.) In January of 2011, Davenport executed a written Contract of Employment (the "Contract") [173-4] with HansaWorld. The Contract has an effective date of January 1, 2011, but also provides that Davenport's "period of employment with the Company is counted from 25 May 2009." (Contract [173-4] at ¶ 1.2.) The Contract specifies "an at will' relationship": there is no fixed termination date and either "party may terminate the relationship and the employment with or without notice for any reason whatsoever." (Contract [173-4] at ¶ 1.4.) HansaWorld terminated Davenport's employment on or about October 18, 2012. ( See Davenport Dep. [173-2] 152:2-10, 164:2-12.)
On January 10, 2014, Davenport filed her Second Amended Complaint  against HansaWorld and HansaWorld Holding Limited ("HHL"). Davenport alleges that HansaWorld is the alter ego and subsidiary of HHL. Davenport further claims that she experienced sexual harassment by several individuals, and that Karl Bohlin, her direct and immediate supervisor, was the primary perpetrator of the harassment. Purportedly, Davenport was wrongfully terminated after complaining about the sexual harassment and about HansaWorld's disregard of U.S. tax and immigration laws pertaining to employee pay. Based on these and other allegations, the Complaint asserts the following counts: (1) defamation; (2) intentional and negligent infliction of emotional distress; (3) discharge in violation of public policy; (4) breach of contract; (5) breach of good faith and fair dealing; (6) discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); and (7) negligent supervision and training.
On January 16, 2014, HansaWorld moved for the dismissal of Davenport's Title VII cause of action. ( See Mot. to Dismiss .) On March 5, 2014, HHL sought dismissal for lack of personal jurisdiction and insufficient service of process. ( See Mot. to Dismiss .) The Court subsequently dismissed HHL from the action for lack of personal jurisdiction and dismissed Davenport's Title VII claims. ( See Mem. Op. & Order .)
HansaWorld now seeks summary judgment on Davenport's remaining state law causes of action. ( See Mot. for SJ .) HansaWorld has also moved to strike Davenport's Supplemental Disclosures. ( See Mot. to Strike .) The Court has fully considered the subject motions and is ready to rule.
I. Motion to Strike 
On March 5, 2015, one day before the close of discovery and approximately three months subsequent to the Plaintiff's expert designation deadline, Davenport submitted her Supplemental Disclosures [171-2]. These disclosures identify Garrett D. Gregory, a tax attorney, as a potential witness and an individual likely to possess discoverable information. Davenport asserts that Gregory is a legal professional, who is familiar with the facts and circumstances regarding her "tax issues as a result of the Defendant's actions and omissions." (Suppl. Disclosures [171-2] at p. 1.) Davenport submitted a March 4, 2015 letter prepared by Gregory along with her Supplemental Disclosures. The letter states, in pertinent part, that Gregory was retained to represent Davenport before the Internal Revenue Service ("IRS") with respect to unfiled tax returns for the years 2010 through 2013; that Davenport "will be subject to significant penalties and interest" due to the delinquent nature of the tax returns; and, that "the overall amount due to the IRS could not be accurately estimated at this time" because, inter alia, the IRS has discretion to assess penalties and the underlying amount owed has yet to be determined. (Suppl. Disclosures [171-2 at ECF p. 5].)
HansaWorld argues that Davenport's last-minute disclosure of Gregory should be stricken to prevent undue prejudice. "The discovery deadline passed before Defendant could propound written discovery regarding Gregory, much less take Gregory's deposition." (Def.'s Mem. in Supp. of Mot. to Strike  at p. 4.) HansaWorld further argues that Gregory should be excluded because it appears Davenport intends to use him as an expert witness and she has failed to comply with the rules for expert witness disclosures.
A. Local Uniform Civil Rule ("Local Rule") 37
As an initial matter, Davenport contends that the Motion to Strike should be denied because HansaWorld failed to comply with Local Rule 37. This rule requires counsel to confer in good faith to attempt resolution of a discovery dispute prior to the filing of a discovery motion. See L.U.Civ.R. 37(a). The rule also requires a party filing a discovery motion to include a Good Faith Certificate, advising that counsel have attempted to resolve the dispute informally and whether the motion is unopposed by any party. See id.
This Court rejected a substantially similar argument in Gerald v. University of Southern Mississippi, No. 2:12cv147, 2013 WL 5592454 (S.D.Miss. Oct. 10, 2013). In that case, the Defendants moved to strike the Plaintiff's designation of a witness on the grounds of untimeliness and the expert witness disclosure requirements of the Federal Rules of Civil Procedure and the Local Rules. See Gerald, 2013 WL 5592454, at *2. Plaintiff argued that the Defendants' motion was improper because it lacked a Local Rule 37 Good Faith Certificate. See id. The Court found as follows with respect to this contention:
Plaintiff fails to cite, and this Court is unaware of any authority denying a motion to exclude untimely expert opinions on the basis that the moving party failed to comply with Local Rule 37. Perhaps, the scarcity of such precedent is due to the mandatory nature of the expert witness disclosure requirements of the Federal Rules and Local Rules, and the Court's ability to exclude inadequately disclosed expert opinions sua sponte or on a motion. See Fed.R.Civ.P. 37(c)(1); L.U.Civ.R. 26(a)(2)(B). Perhaps also, it is unrealistic to expect a party to agree to the exclusion of its expert witness from trial in response to an informal request from an opposing party. In either event, the Local Rules are not jurisdictional and the Court determines that the absence of a Local Rule 37 Good Faith Certificate in support of the Motion to Strike  fails to preclude the consideration of Defendants' requested relief at this time. See Agee v. Wayne Farms, L.L.C., No. 2:07cv1010, 2008 WL 4849669, at *1 (S.D.Miss. Nov. 6, 2008) ("[E]ven if a Good Faith Certificate should have been filed along with the instant motions, this court has the authority and jurisdiction to consider the motion without it, as the Local Rules are not jurisdictional in nature, and the Court is free to rule on motions not served in precise compliance with them.") (citation and internal quotation marks omitted).
Id. at *3 (footnote omitted).
The Court finds it unreasonable to presume that Davenport would have agreed to the exclusion of Gregory had HansaWorld attempted to resolve the issue without a formal motion. Davenport's "Response in Opposition to Defendant's Motion to Strike"  evidences her disagreement with HansaWorld's requested relief. Thus, for essentially the same reasons stated in Gerald, Davenport's Local Rule 37 argument does not justify the denial of HansaWorld's Motion to Strike .
B. Whether Davenport Timely Disclosed Gregory
Davenport argues that she was not required to identify Gregory prior to the expiration of her expert designation deadline on December 1, 2014, because he has not been retained as an expert witness and he is expected to provide fact witness testimony at trial. It is hard to imagine how a tax attorney, specifically retained to represent Davenport before the IRS, could be expected to provide lay witness testimony regarding Davenport's damages. Nonetheless, the Court finds that Gregory was not timely disclosed whether he is considered a fact witness or expert witness. Under Federal Rule of Civil Procedure 26(a)(1)(A)(i), Davenport was required to disclose the identity of any individual she intends to use in support of her claims without awaiting a discovery request from HansaWorld. Federal Rule of Civil Procedure 26(e) requires the "timely" supplementation of initial disclosures. Fed.R.Civ.P. 26(e)(1)(A). The purpose of Rule 26(e) is to prevent prejudice and surprise. See Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir. 1994) (citation omitted).
Davenport's Initial Disclosures were served on October 25, 2013. ( See Doc. No. .) Davenport's Supplemental Disclosures, identifying Gregory, were served almost one year and five months later on March 5, 2015. There is no indication that HansaWorld knew or had reason to know of Gregory's existence or involvement in this case prior to that time. On the other hand, Davenport essentially controlled the timing of Gregory's disclosure since she apparently sought out and retained him to represent her before the IRS. Further, HansaWorld was deprived of any meaningful opportunity to conduct discovery regarding Gregory given his disclosure one day before the expiration of the discovery deadline. Under these circumstances, the Court finds that HansaWorld was unduly surprised by Davenport's last-minute supplementation and that the disclosure of Gregory was untimely even if he is merely considered a fact witness. Cf. Bennett v. GEO Group, Inc., No. 4:10cv133, 2011 WL 4625667, at *2 (S.D.Miss. Oct. 3, 2011) ("The purpose of requiring a listing of persons with knowledge, even early on during the discovery phase... is to allow the opposing party to interview or depose them, if desired, or to conduct other investigation, and to learn the facts before discovery closes.") (citation omitted).
Davenport's disclosure of Gregory is clearly inadequate if he is considered an expert witness under Federal Rule of Evidence 702. Under Federal Rule of Civil Procedure 26(a)(2)(A), "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." As to a retained expert witness, a party's disclosure must include a written report prepared by the witness containing, inter alia, "a complete statement of all opinions the witness will express and the basis and reasons for them; [and] the facts or data considered by the witness in forming them...." Fed.R.Civ.P. 26(a)(2)(B). Generally, non-retained expert witnesses are not required to submit written reports. As to these witnesses, however, a party's designation must state the subject matter on which the witness is expected to present testimony, and include "a summary of the facts and opinions to which the witness is expected to testify." Fed.R.Civ.P. 26(a)(2)(C). Expert disclosures are to be made in the sequence ordered by the court. See Fed.R.Civ.P. 26(a)(2)(D). Under the Court's Local Rules, absent a finding of just cause, a party's failure to make full expert disclosures by its "expert designation deadline is grounds for prohibiting introduction of that evidence at trial." L.U.Civ.R. 26(a)(2). A party seeking to designate an expert without providing full disclosure will not be considered to have met its expert designation deadline and the disclosure may be stricken upon motion or by the court sua sponte. L.U.Civ.R. 26(a)(2)(B); see also Fed.R.Civ.P. 37(c)(1). Davenport's identification of Gregory, without providing full expert disclosure, subsequent to her expert designation deadline runs afoul of the preceding requirements imposed by the Federal Rules of Civil Procedure and Local Rules.
C. Whether Gregory Should Be Excluded
Federal Rule of Civil Procedure 37 precludes a party from using at trial a witness or evidence that was untimely or inadequately disclosed "unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). District courts possess broad, considerable discretion in assessing discovery sanctions. See Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th Cir. 1996) (citations omitted). That discretion, however, is to be guided by the following four factors in determining whether to strike a late-designated witness: "(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential ...