United States District Court, W.D. Missouri, Southwestern Division
JODELLE L. KIRK, Plaintiff,
SCHAEFFLER GROUP USA, INC., and FAG BEARINGS, LLC, Defendants.
ORDER GRANTING IN PART MOTION TO STRIKE
KAYS, CHIEF JUDGE
before the Court is Plaintiff's Motion to Strike New
Argument in Defendants' Response Brief Regarding Order
Granting in Part Motion for Reconsideration (Doc. 586). For
the following reasons, the motion is GRANTED IN PART.
events preceding this motion are as follows. The Court
previously issued an order (“the Order”) (Doc.
569) reconsidering a portion of an earlier order imposing
sanctions on Plaintiff's counsel for discovery
violations. The Order directed the parties to file a brief
and a reply addressing three questions: (1) what is an
appropriate sanction for the Rule 26(e) violations in this
case; (2) who should be sanctioned-Plaintiff, her counsel, or
both; and (3) what is the appropriate source of the
Court's power to sanction the violations here. With
respect to the third question, the Order specifically
directed the parties to submit briefs concerning the
Court's power to impose sanctions under Rule 37(c), Rule
26(g), or the Court's inherent authority. But the Order
failed to identify a fourth potential source of authority,
Rule 16. The Order also instructed the parties not to brief
any other issues. The Court included this directive because
it did not want the parties to re-litigate whether Plaintiff
violated Rule 26(e).
subsequently filed their initial brief (Doc. 577-1) and their
reply (Doc. 582). Both briefs argued that under Rule 16, the
Court must impose sanctions if a party or its attorney fails
to obey a scheduling order unless the noncompliance was
substantially justified or other circumstances make an award
of expenses unjust.
filed her initial brief (Doc. 576) and a reply (Doc. 583).
Neither discussed Rule 16. She then filed the pending motion
arguing Defendants violated the Order. For relief, Plaintiff
requests the Court strike the Rule 16 argument and hold an
evidentiary hearing. Plaintiff writes that as it stands now,
she and her counsel “have been denied an opportunity to
be heard on Rule 16. Even if this section is struck from
Defendants' brief, however, the only way to guarantee a
full and fair opportunity [to be heard] in light of the
severe sanctions sought is to grant an evidentiary
hearing.” Pl.'s Br. at 3.
Court rules as follows. With the benefit of hindsight, the
Court notes it erred in directing the parties to limit their
argument to the Court's ability to impose sanctions under
Rule 37(c), Rule 26(g), or its inherent authority. The Court
meant to solicit the parties' views as to any source of
authority under which the Court might impose sanctions.
Unfortunately, its Order did not say that.
strictly speaking, Plaintiff is correct: Defendants' Rule
16 argument violated the Order. The Court writes
“strictly speaking” though, because while
Defendants' violated the letter of the Order, they did
not violate its spirit. Defendants' observation that Rule
16 might apply here is a valid one.
question is, what should the Court do to cure any unfairness
here? Striking the argument as Plaintiff suggests is
problematic because Defendants have cited a possibly
applicable rule, and it would be difficult or unfair for the
Court to ignore that rule simply because it failed to cite it
in the Order. A better solution is to allow both parties
to thoroughly brief the issue, so that each side has an ample
opportunity to be heard.
Plaintiff's request for an evidentiary hearing, it is
denied. The question before the Court is essentially a legal
one, whether Rule 16 possibly applies here. An evidentiary
hearing would serve no useful purpose. If Plaintiff believes
there is a disputed question of fact related to this legal
question, she can attach an affidavit to her initial brief.
Plaintiff's motion is GRANTED IN PART. Plaintiff may file
a brief on or before April 7, 2017, responding to
Defendants' argument that Rule 16 “authorizes the
Court to impose sanctions against Plaintiff's
counsel.” Defs.' Br. at 6. This brief shall not
exceed five pages. If Plaintiff files such a brief,
Defendants shall have until April 21, 2017, to file a
response which shall not exceed five pages. If Defendants
file a response, Plaintiff shall have until May 5, 2017, to
file a reply brief which shall not exceed three pages. All of
the parties' briefing shall not incorporate any argument
by reference; all argument must be contained within the four
corners of the brief.
 The Court previously ruled Plaintiff
“patently violated Rule 26(e) by failing to identify
additional theories of exposure and nineteen specific
locations of exposure until after the close of
discovery.” Order Granting ...