Hathaway v. Idaho Pac. Corp.
| Decision Date | 02 June 2020 |
| Docket Number | Case No. 4:15-cv-00086-DCN |
| Parties | ROSS HATHAWAY Plaintiff, v. IDAHO PACIFIC CORPORATION Defendant. |
| Court | U.S. District Court — District of Idaho |
Pending before the Court are Plaintiff Ross Hathaway's Motion for Terminating Sanctions (Dkt. 227), Defendant Idaho Pacific Corporation's ("IPC") Motion to File Excess Pages (Dkt. 236), IPC's Motion to Strike Plaintiff's Motion for Terminating Sanctions (Dkt. 238), and IPC's Motion for Leave to File Sur-Reply (Dkt. 245). Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motions without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).
Upon review, and for the reasons set forth below, the Court grants Hathaway's Motion for Terminating Sanctions (Dkt. 227), grants IPC's Motion to File Excess Pages (Dkt. 236), grants in part and denies in part IPC's Motion to Strike Plaintiff's Motion for Terminating Sanctions (Dkt. 238), and denies IPC's Motion for Leave to File a Sur-Reply (Dkt. 245).
This employment discrimination case was originally filed on March 12, 2015, over five years ago. A five-day jury trial was held in mid-December 2017. The Court submitted three claims to the Jury via a special verdict form: (1) discrimination under the Americans with Disabilities Act ("ADA"); (2) retaliation under the ADA; and (3) wrongful discharge under Idaho state law. During deliberations, the Jury sent a note to the Court indicating that its members had "reached a point of aggressive disagreement." Dkt. 118, at 2. In response, the Court gave the Jury an Allen instruction.2 The Jury then returned to its deliberations. A few hours later, the Jury sent another note to the Court stating that it had reached a "unanimous decision on only one claim" and that it was unable to agree on the other two claims. Id.
The Court permitted the Jury to return a verdict on the sole claim on which it was able to reach a unanimous decision. The Jury found in favor of Hathaway on the Idaho wrongful discharge claim and awarded him $34,302 in lost wages. The Jury did not answer any of the questions on the verdict form regarding the ADA retaliation claim. As to the ADA discrimination claim, the Jury determined that Hathaway had a disability and that hewas a qualified individual under the ADA. However, the Jury failed to answer any other questions regarding the ADA discrimination claim.
After several post-trial motions, the Court ultimately declared a mistrial on June 11, 2018, and ordered retrial on all claims. Dkt. 118. On May 3, 2019, Hathaway moved for leave to amend his complaint to add punitive damages on the grounds that IPC produced new evidence at trial. Dkt. 145. Finding good cause, the Court granted Hathaway leave to amend. Dkt. 204. The retrial was ultimately set for October 28, 2019.3
On October 24, 2019, IPC disclosed a relevant document to Hathaway for the first time. The same day, the Court held a status conference on the late disclosure. During the status call, Hathaway asked for the retrial to be vacated and for discovery to be reopened. The Court granted Hathaway's request and reopened discovery ("Second Discovery Period") for the limited purpose of Hathaway briefing the Court on the issues "specifically including, but not limited to, potential terminating sanctions and the admissibility of the late-disclosed document." Dkt. 220, at 1-2.
Hathaway subsequently filed the pending motion for terminating sanctions on January 10, 2020, based on both IPC's previous late disclosures as well as newly disclosed documents IPC had revealed during the Second Discovery Period. Dkt. 227. On January 31, 2020, IPC filed its motion to file excess pages in its response to Hathaway's motion. Dkt. 236. The same day, IPC also filed its motion to strike Plaintiff's motion forterminating sanctions. Dkt. 238. On March 6, 2020, IPC filed a motion for leave to file a sur-reply to Hathaway's motion for terminating sanctions. Dkt. 245. The pending motions are now ripe.
As the subsequent motions filed by IPC affect the facts and legal arguments the Court will consider in ruling on Hathaway's motion for terminating sanctions, the Court shall review the pending motions in reverse order.
District courts have the discretion to either permit or preclude a surreply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) () (overruled on other grounds by U.S. ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121, 1129 (9th Cir. 2015)); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) ().
However, surreplies "are highly disfavored, as they usually are a strategic effort by the nonmoving party to have the last word on a matter." Sims v. Paramount Gold & Silver Corp., No. CV 10-356-PHX-MHM, 2010 WL 5364783, at *8 (D. Ariz. Dec. 21, 2010) (quoting In re Enron Corp. Sec., 465 F. Supp. 2d 687, 690 n.4 (S.D. Tex. 2006)); see also Garcia v. Biter, 195 F. Supp. 3d 1131, 1133-34 (E.D. Cal. 2016) (). District courts deny motions for surreplies absent extraordinary circumstances. See Sims, 2010 WL 5364783, at *8 () (quoting Beckner v. Astrue, No. 06-1012-JTM, 2007 WL 2013608, at *1 (D. Kan. July 9, 2007)); Atlin v. Mendes, 2008 WL 5422871 *3 (N.D. Tex. 2008) (); Starr v. Cox, 2008 WL 1914286 *2 (D.N.H. 2008) (); Gen. Elec. Co. v. Latin Am. Imports, S.A., 187 F. Supp 2d 749, 752 n.1 (W.D. Ky. 2001) (). Typically, extraordinary circumstances are when a party raises new issues or evidence in its reply brief. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (). In those cases, the district court may allow a surreply by the non-moving party to ensure it has a full and fair opportunity to brief the issues in the case.
Ultimately, the question is whether IPC had sufficient notice of the issues in Hathaway's motion for terminating sanctions to fully and fairly brief them without a surreply brief. Here, IPC argues that Hathaway raised a new issue in his reply brief because he specifically cited to subsection (c) of Federal Rule of Civil Procedure 37 for the first time. IPC argues it had no notice under what legal authority Hathaway was seeking sanctions. Yet IPC itself noted in its surreply briefing that Plaintiff "expressly state[d] that Hathaway broadly seeks sanctions 'pursuant to the court's inherent power and Rule 37.'" Dkt. 248, at 2 (quoting Dkt. 227-1) (emphasis added). Further, IPC knew, and Hathawayreminded it, the Court had vacated trial and reopened discovery due to IPC's very late disclosure of a relevant document. Dkt. 227-1, at 2 (citing Dkt. 220).4 Thus, IPC knew that Hathaway was seeking sanctions pursuant to the Court's inherent power and Rule 37 on the grounds that IPC had repeatedly and seriously failed to produce relevant documents.
IPC had sufficient notice to know, or research, the possible sanctions available under Rule 37 given the legal and factual facts Hathaway expressly described in his motion for terminating sanctions. Such sanctions include those under Rule 37(c), which is titled "Failure to Disclose, to Supplement an Earlier Response, or to Admit." Fed. R. Civ. P. 37(c). Under Rule 37(c), sanctions for failing to disclose information as required under Rule 26(a) or (e) include appropriate sanctions, such as those listed under Rule 37(b)(2)(A)(i)-(vi),5 the very sanctions the Court also notified IPC that it could be subject to.6
IPC chose to argue in its response to Hathaway, despite knowing the above, that "Rule 37 does not apply in this case, as IPC has not violated a court order . . . ." Dkt. 237, at 17.7 To support this proposition, it cites Halaco Eng'g Co. v. Costle,8 843 F.2d 376, 380 (9th Cir. 1988). Yet the court in Halaco explicitly stated that a court order was required in order for Rule 37(b)(2)(C) to apply; it did not broadly hold that a court order was always required for Rule 37 to apply. Id. ().
Here, Hathaway's failure to cite to the specific subsection of Rule 37 is not an extraordinary circumstance warranting a surreply. IPC knew the factual and legal grounds Hathaway was seeking sanctions under. Knowing this, if it failed to review Rule 37 prior to submitting its response to the Court, that failure rests on it. IPC filed an overlength response to Hathaway's motion, so it had more than sufficient opportunity to respond to Hathaway's grounds for moving for sanctions under the Court's inherent authority and Rule 37. It chose to make the legal conclusion that "Rule 37 does not apply to this case." Hathaway raised no new issues in his reply that warrant a surreply. Rather, IPC's motion seems to be a strategic effort by it as the nonmoving party to have the last word on a matter.The Court DENIES Hathaway's motion to file a surreply.9
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