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Trekell v. Target Corp.

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

December 16, 2019



          GREG KAYS, JUDGE

         This personal injury case arises from a vehicular accident. Plaintiff Kenneth Trekell alleges that the driver of a tractor-truck pulling a Target-branded trailer caused an accident that resulted in his foot being fractured. The tractor-truck and trailer involved in the accident drove away without stopping, and the driver has not been identified. Defendant Target Corporation denies any liability stemming from the accident.

         Now before the Court is Plaintiff's Motion to Strike Defendant's Supplemental Rule 26 Disclosures and Expert Designation, or in the Alternative, Motion to Amend Scheduling Order to Extend Discovery Deadlines and Motions to Strike Expert Designations (Doc. 43). Plaintiff argues Defendant's Rule 26 supplemental disclosures served on the last day of discovery are untimely and prejudiced him. Plaintiff asks the Court to strike the disclosures, or alternately, amend the scheduling order to allow him to conduct additional discovery and file Daubert motions. Defendant opposes the motion, contending the disclosures were timely and Plaintiff was already aware of the information.

         The Court finds Defendant violated Rule 26 by failing to identify potential witnesses by name in the supplemental disclosure. These witnesses are excluded pursuant to Rule 37. For good cause shown, the Court also amends the scheduling order. This requires the trial date be reset, which the Court will do in a subsequent order.

         Plaintiff's motion is GRANTED IN PART.


         Federal Rule of Civil Procedure 26 imposes various duties on litigants to search for and disclose information during discovery, several of which are relevant here.[1] Rule 26(a) states that a party must provide “the name . . . of each individual likely to have discoverable information- along with the subjects of that information-that the disclosing party may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i). The rule also requires the disclosing party to provide “a copy-or a description by category and location-of all documents . . . that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed.R.Civ.P. 26(a)(1)(A)(ii). Further, Rule 26(e) requires a party to supplement or correct these disclosure “in a timely manner if the party learns that in some material respect the disclosure . . . is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A).

         Rule 37 provides the consequences for failure to follow these rules. Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018) (“The disclosure mandates in Rule 26 are given teeth by the threat of sanctions in Rule 37.”) “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The burden is on the potentially sanctioned party to prove harmlessness or justification. Vanderberg, 906 F.3d at 705. “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, caused by the failure” or impose other appropriate sanctions. Fed.R.Civ.P. 37(c)(1). This means a party must move for an alternative sanction before the court can consider an alternative sanction. Fed.R.Civ.P. 37(c)(1); Vanderberg, 906 F.3d at 705.

         The Eighth Circuit stressed recently that “Rule 37(c)(1) makes exclusion of evidence the default, self-executing sanction for the failure to comply with Rule 26(a).” Vanderberg, 906 F.3d at 705. “[E]xclusion occurs automatically by operation of the rule; the rule permits, but does not require, the imposition of an alternative sanction on party's motion.” Id. “In other words, ” if a party does not comply with the disclosure requirements in Rule 26(a), the information “is excluded unless the failure was substantially justified or harmless.” Id. at 703. But the district court may, if either party moves for it, “impose an additional or alternative sanction.” Id.

         If a party moves for an alternative sanction, the district court enjoys wide discretion to fashion a remedy or sanction appropriate for the circumstances. Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). In fashioning an alternate remedy, the court must consider “the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony.” Id. The court's discretion, however, narrows as the effective severity of the sanction increases. Id. If the sanction is tantamount to dismissal or would result in a one-sided trial, the district court “may need to first consider the possibility of lesser sanctions.” Vanderberg, 906 F.3d at 704; Doe v. Young, 664 F.3d 727, 734 (8th Cir. 2011).


         Because the Court's decision turns on Defendant's conduct during discovery, the Court must recount that history in some detail.

         On July 6, 2018, Plaintiff filed suit in the Circuit Court of Jackson County, Missouri. His petition alleged that at the time of the accident, the driver of the truck that hit him was driving in the course and scope of his employment with Defendant or at Defendant's direction and control. Pet. ¶ 9 (Doc. 1-1). Thus, Plaintiff argues Defendant was responsible for the driver's actions based on either a master/servant relationship, the doctrine of respondeat superior, and/or as joint-venturers. Id. ¶ 10.

         Plaintiff served Defendant with his opening interrogatories and first request for production of documents on July 25, 2018, contemporaneously with the initial petition and summons. On August 22, 2018, Defendant removed the case to federal court.

         On October 22, 2018, Defendant served its initial Rule 26 disclosures (Doc. 43-1). Defendant identified five witnesses: (1) the Plaintiff; (2) Connor Donaldson, an eyewitness to the accident; (3) Corey Sanders, a police officer who appears to have worked the accident scene; (4) Melissa Jolley, a claim manager for Hogan Transports, Inc. (“Hogan”) who “may have” information about the location of Hogan trucks that were hauling Defendant's trailers at the time of the accident; and (5) Brian Beets, a manager for Ruan Transportation (“Ruan”) who “may have” information about the location of Defendant's trucks that were hauling Target trailers at the time of the accident.[2] Def.'s Rule 26 Initial Disclosures at 1-2. As for documents, Defendant disclosed Hogan and Ruan's GPS data. Id. at 2.

         Plaintiff re-served his opening interrogatories and first request for production of documents on October 24, 2018. Over the following months, Plaintiff diligently pursued discovery but graciously agreed to defense counsel's repeated requests for extensions of time to produce discovery or to delay taking depositions. Plaintiff also waited patiently for Defendant to provide discovery and identify dates for depositions. For example, Plaintiff's counsel advised defense counsel of her intention to take a corporate representative deposition on December 20, 2018. Over the following four months, Plaintiff's counsel contacted defense counsel no fewer than eighteen times by email and phone attempting to get a date to depose Defendant's corporate representative. On April 16, 2019, defense counsel selected May 23 and 24, 2019, as possible dates for the corporate deposition. Defendant designated Maria Olson as the corporate representative.

         On April 1, 2019, the parties filed a joint motion to amend the scheduling order, which the Court granted on April 5, extending Defendant's deadline to designate experts to June 30, 2019, and moving the deadline to complete discovery to July 10, 2019.

         Plaintiff deposed Ms. Olson on May 23, 2019. During her deposition, she identified three carriers with whom Defendant contracts to make deliveries in the Kansas City area, testified that each carrier has on-site managers, and testified that Chris Prater was Defendant's market logistics manager. Ms. Olson also clarified and confirmed the ownership of the tractors and trailers Defendant used to ship goods, the type of freight transported by Target trailers, and the Defendant's furnishing and use of Target logos on trailers. Although Plaintiff had previously requested bills of ...

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