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Kasiah v. Crowd Systems, Inc

United States District Court, W.D. Missouri, Western Division

October 31, 2017

DAVID KASIAH, Plaintiff,
v.
CROWD SYSTEMS, INC., et. al, Defendants.

          ORDER

          BETH PHILLIPS, JUDGE.

         This case arises from injuries Plaintiff received while attending the “Buzz Beach Ball” concert. Plaintiff filed his suit against Crowd Systems, Inc., (“CSI”), the Kansas City Board of Police Commissioners, (“KCPD”), and Officer Gilbert Carter, (“Carter”). Plaintiff has settled with CSI, thus the only remaining defendants are KCPD and Carter. Pending is Plaintiff's Motion for Discovery Sanctions against KCPD and Carter. (Doc. 105.) Plaintiff seeks sanctions against Defendants for their failure to timely produce: (1) a September 28, 2013 police report by Officer James Gale; (2) emails between Carter and Sgt. Cynthia Sheldon; and (3) a January 11, 2016 letter from Fraternal Order of Police, (“FOP”), President Brad Lemon to FOP members. Plaintiff requests that the Court strike Defendants' pleadings, enter judgment in favor of Plaintiff, set the trial for damages, and award Plaintiff's counsel attorney's fees related to this motion. Plaintiff's Motion is DENIED.

         I. BACKGROUND

         On September 27, 2013, the Buzz Beach Ball concert took place at Berkley Riverfront Park in Kansas City, Missouri. CSI provided security services for the concert and hired Carter to assist in an off-duty capacity. (Doc. 92, ¶ 3.) During the event, a CSI representative informed Carter of a possible fight in the crowd. (Doc. 99, ¶ 5.) Carter motioned for Plaintiff to approach. (Doc. 92, ¶ 8.) Carter, with the help of another off-duty police officer working security, Kevin White, lifted Plaintiff over the barrier. (Doc. 92, ¶ 21.) While Carter was still holding on to Plaintiff's upper body, White lost his grip on Plaintiff's legs. (Doc. 92, ¶ 26.) Carter then lost his balance and he and Plaintiff began falling towards the ground. (Doc. 92, ¶ 27.) Plaintiff landed on his head and shoulder, (Doc. 99-4, pp. 96-97), and fractured two vertebrae at the base of his neck. (Doc. 92-2, p. 49.) Plaintiff was then transported to the hospital for medical treatment. (Doc. 99-1, p. 3.)

         Plaintiff's mother called the police after her son was admitted to the hospital. Officer Gale responded and took Plaintiff's statement. Plaintiff reported that after he bumped into a teenage girl at the concert she and her five friends attacked him. Plaintiff stated that “security guards” then grabbed him and tossed him over a barrier. (Doc. 105-3, p. 1.) The report goes on to state “[Plaintiff] stated he knew for sure it was a security guard and not a Police Officer.” (Doc. 105-3, p. 1.)

         On January 11, 2016, FOP President Brad Lemon wrote a letter to FOP members advising them to cancel their shifts with CSI because CSI refused to defend Carter in this lawsuit. (Doc. 105-1.) Lemon stated: “Our members simply cannot be placed in a position to perform duties for an off-duty employer and then be faced with that employer refusing to cover actions taken against our member.” In June 2016, Carter exchanged emails with Sgt. Sheldon regarding CSI's refusal to defend Carter and KCPD's position that CSI was responsible for defending Carter because it was an off-duty incident. (105-2.)

         Meanwhile, on September 27, 2015, Plaintiff filed a petition in Missouri state court. (Doc. 1-2.) On October 6, Defendants removed the case to federal court. On December 9, 2016, KCPD and Carter filed their Rule 26 disclosures. Those disclosures did not contain or mention the three pieces of evidence at issue. On December 12, the Court entered a Scheduling Order with a discovery deadline of May 30, 2017. The Scheduling Order was later amended and the discovery deadline was extended until June 30.

         On February 9, 2017, the Honorable Dean Whipple granted summary judgment to CSI on all but one of Plaintiff's claims against it. (Doc. 40.) Judge Whipple concluded that CSI could not be liable under the respondeat superior doctrine because the undisputed facts demonstrated that Carter was acting in his official capacity when he decided to arrest Plaintiff, which was before Plaintiff was injured. (Doc. 40, p. 5.) On May 25, 2017, Plaintiff settled with CSI on the remaining claim against it.

         On May 11, Plaintiff received the FOP letter from CSI. On June 20, KCPD produced the emails between Carter and off-duty supervisor, Sgt. Sheldon. On July 31, after discovery closed, Officer Gale's report was produced as an exhibit to Carter's Motion for Summary Judgment. (Doc. 105-3.) Plaintiff argues that the three pieces of evidence would have created a genuine dispute of material fact as to Carter's employer and summary judgment would not have been granted to CSI. Plaintiff argues that the documents establish that the Defendants were having a dispute among themselves as to who Carter was working for and who should provide insurance coverage. For the reasons set forth below, the Court concludes that this evidence does not create a dispute of material fact and would have had no impact on Judge Whipple's decision.

         II. DISCUSSION

         Plaintiff seeks sanctions pursuant to Fed. R. Civ. Pro. 37(c)(1). Rule 37(c) states in pertinent part:

(1) If a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless that failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, ...

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