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Jackson v. Steele

United States District Court, Sixth Circuit

August 26, 2013

TRAVIS STEELE, et al., Defendants.


DAVID L. BUNNING, District Judge.

This matter is before the Court on Plaintiff's objection (Doc. # 34, 35) to the Magistrate Judge's Order (Doc. # 33) excluding Plaintiff's expert witness because the witness' report was untimely disclosed in violation of Federal Rule of Civil Procedure 26(a)(2)(B) and the Court's scheduling order. Plaintiff has also moved the Court to stay discovery pending its decision on his objection. (Doc. # 34, 35). Defendants have not responded to Plaintiff's objection and motion, and the time do so has now passed. Thus, the matter is ripe for review. For the following reasons, the Court will overrule Plaintiff's objection to the Magistrate Judge's Order and deny as moot his motion to stay discovery.


Plaintiff filed this ยง 1983 action on July 8, 2011, principally alleging that he was subjected to excessive force in violation of the Fourth Amendment. On May 17, 2012, the Court entered a scheduling order requiring, inter alia, that Plaintiff identify any expert witness and provide the witness's report to Defendants on or before January 20, 2013. (Doc. # 16). Two days before the disclosure and report were due, Plaintiff moved to extend the deadline. (Doc. # 19). The motion was unopposed (Doc. # 21) and, therefore, granted by the Magistrate Judge. (Doc. # 24). Pursuant to an Amended Scheduling Order, Plaintiff was given until March 20, 2013 to identify his expert witness and provide the expert's report. ( Id. ).

On July 12, 2013, Defendants moved to exclude Dr. George Kirkham as Plaintiff's expert. (Doc. # 28). Defendants acknowledged that Plaintiff disclosed Dr. Kirkham as an expert and provided his curriculum vitae in a timely fashion, but Defendants asserted that Plaintiff had not provided Dr. Kirkham's report by the March 20, 2013 deadline. In fact, Defendants stated that they had not received the report as of the time they filed their motion to exclude Dr. Kirkham as an expert.

Rather than filing a response to Defendants' motion, Plaintiff filed a motion for extension of time to provide the expert report. (Doc. # 29). Because his motion failed to address the arguments raised by Defendants, the Magistrate Judge directly ordered Plaintiff to file a response to the motion to exclude Dr. Kirkham as an expert. (Doc. # 30). Plaintiff responded with a single paragraph explaining why the motion should be denied. (Doc. # 31). Specifically, he stated:

Comes now the Plaintiff, by and through counsel, and pursuant to the Court's Order and advises the Court that the Plaintiff has submitted his expert's report dated June 16, 2013, from Dr. George L. Kirkham to the Defendants in the above-styled action. As such, there is no prejudice whatsoever.

Thereafter, Plaintiff submitted a supplemental response advising that he had no objection to the Court extending Defendants' expert report deadline to allow the expert to review Dr. Kirkham's report. (Doc. # 32).

In his written Order, the Magistrate Judge denied Plaintiff's motion to extend the expert witness disclosure deadline and granted Defendants' motion to exclude Dr. Kirkham as a witness. (Doc. # 33). The Magistrate Judge concluded that Plaintiff had failed to disclose Dr. Kirkham's report by March 20, 2013 as required by Federal Rule of Civil Procedure 26(a)(2)(B) and the Court's scheduling order. Additionally, the Magistrate Judge concluded that Plaintiff's failure could not be excused under Federal Rule of Civil Procedure 37(c) because he did not provide substantial justification for failing to meet the deadline, nor did he establish that the failure to provide the report was harmless.

Plaintiff now objects to the Magistrate Judge's decision and asks the Court to give the decision de novo review. (Doc. # 34, 35). He asserts that the Magistrate Judge erred in concluding his failure to timely disclose Dr. Kirkham's report was neither substantially justified or harmless. He explains that he Dr. Kirkham was unable to complete his report until he had an opportunity to review the transcripts from Defendants' depositions, and suggests-without saying-that this review took place after the disclosure deadline. Additionally, Plaintiff contends that the late disclosure will not impact Defendants' ability to prepare for trial. This is particularly so, Plaintiff asserts, because Defendants have known the subject of Dr. Kirkham's testimony since May 29, 2012, when Dr. Kirkham was identified as an expert. As Plaintiff explains, Defendants should have known from the disclosure that Dr. Kirkham was a criminologist who "would be testifying that the Defendants deviated from property [sic] police techniques and committed extremely serious violations of well established law enforcement standards and procedures." (Doc. # 35 at 5).


A. Standard of Review

Plaintiff baldly asserts that this Court must give de novo review to the Magistrate Judge's Order, though he does not explain why. The Court disagrees. Pursuant to Federal Rule of Civil Procedure 72(a), Magistrate Judges are permitted to review nondispositive pre-trial matters and enter a written order stating their decision. If an objection is timely raised, the district court then reviews the objection and determines whether the Magistrate Judge's order is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). Plaintiff concedes in his objection that the motion to exclude his expert is nondispositive. (Doc. # 35 at 2-3). Other courts have agreed with Plaintiff's concession. See Wendorf v. JLG Industries, Inc., No. 08-cv-12229, 2010 WL 148255, at *1 (E.D. Mich. Jan. 11, 2010) (holding that motion to exclude expert's testimony is not a dispositive motion); Nikkal Industries, Ltd. v. Salton, Inc., 689 F.Supp. 187, 189 (S.D.N.Y. 1988) (same). Because the motion is nondispositive, the Magistrate Judge appropriately entered ...

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