Pitts v. HP Pelzer Auto. Sys., Inc., CV 118-012

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Docket NumberCV 118-012
Decision Date10 June 2019

BRIAN PITTS, Plaintiff,

CV 118-012


June 10, 2019


Before the Court is Plaintiff's motion to strike. (Doc. 32.) For the following reasons, Plaintiff's motion is GRANTED IN PART, DENIED IN PART, and the Court RESERVES JUDGMENT IN PART.


The present action arises from Defendant's termination of Plaintiff's employment. (See Compl., Doc. 1.) Plaintiff alleges Defendant terminated him based on his race and in retaliation for highlighting Defendant's practice of discrimination in compensation and termination. (Id. ¶¶ 10-11, 14-32.) Plaintiff raised his concerns with Defendant on November 8, 2017, and was terminated on November 10, 2017. (Pitts Formal Compl., Doc. 18-17; Brian Pitts Dep., Doc. 29, at 98:24-99:1.)

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A. Defendant's Motion for Summary Judgment

Defendant moved for summary judgment as to both the discrimination and retaliation claims, and the motion is currently pending. (Mot. for Summ. J., Doc. 17.) In his response to Defendant's motion for summary judgment, Plaintiff argued the close proximity between his protected conduct and the adverse employment action created an issue of fact as to the "causal connection" requirement of his retaliation claim. (Resp. to Mot. for Summ. J., Doc. 25, at 27-28.) Plaintiff's argument continued that because he presented sufficient evidence as to the "causal connection" requirement — along with the other requirements to establish a prima facie case for retaliation - he survived summary judgment as to that claim. (Id. at 21, 29.)

Defendant filed its reply brief affixing two evidentiary exhibits in support. (Docs. 30, 30-3, 30-4.) The first attachment purports to show forecasted versus realized monetary production figures at Defendant's Thomson, Georgia plant ("Thomson Plant") through December 2017. ("Sales Chart," Doc. 30-3.) Defendant argues that it is entitled to summary judgment as to Plaintiff's racial discrimination claim because Plaintiff fails to show pretext as a matter of law. (Br. Supp. Mot. for Summ. J., Doc. 18, at 21-22; Reply Br. Supp. Mot. for Summ. J., Doc. 30, at 6-7.) Defendant offers the Sales Chart in support of its position

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that it legitimately terminated Plaintiff as part of a larger reduction in force. (Reply Br. Supp. Mot. for Summ. J., at 6-7.)

Defendant claims that the second attachment is an exchange of emails between Lynn Schnepp, Defendant's Regional Director of Human Resources, and Ginelda Lyons, Defendant's Human Resources Manager at the Thomson Plant. ("November 7, 2017 Emails," Doc. 30-4.) Defendant offers the November 7, 2017 Emails as evidence that Defendant decided to terminate Plaintiff on November 7, 2017, prior to his alleged protected conduct on November 8, 2017, in an effort to defeat the alleged causal connection between Plaintiff's protected conduct and his termination. (Reply Br. Supp. Mot. for Summ. J., at 7-8.) Plaintiff failed to file a sur-reply to Defendant's motion for summary judgment. As an alternative, Plaintiff filed his Motion to Strike Exhibits 2 & 3 to Defendant's Summary Judgment Reply ("Motion to Strike").1 (Doc. 32.)

B. Motion to Strike

Plaintiff first saw the Sales Chart and November 7, 2017 Emails attached to Defendant's reply brief. (Mot. to Strike, Doc. 32, at 1-4.) Defendant does not contest whether its omission of the documents during discovery violates Federal Rule of Civil Procedure 26. (See Resp. to Mot. to Strike, Doc. 35, at 2-6.)

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Instead, Defendant contends that its failure to disclose the November 7, 2017 Emails was harmless and its failure to disclose the Sales Chart was substantially justified and harmless. (Id. at 6-12.) Plaintiff disagrees and further asserts Rule 37 requires the Court to exclude the documents. (Mot. to Strike, at 4-9.)

To discuss unaddressed issues,2 the Court held a telephonic hearing on March 26, 2019. (Clerk's Minutes, Doc. 46.) In reaching the conclusions contained herein, the Court has considered the Parties' arguments in the hearing and the relevant briefing.


Plaintiff asserts exclusion is proper because exclusion is automatic and mandatory under Rule 37. Therefore, Plaintiff continues, the Court is prohibited from awarding lesser sanctions instead of exclusion.

A. Motion to Strike

As an initial matter, the Court addresses the procedural correctness of Plaintiff's Motion to Strike. After initially filing the Motion to Strike, Plaintiff refiled the motion to strike as a Notice of Objection to Exhibits 2 & 3 to Defendant's Summary Judgment Reply ("Notice of Objection"). (Doc. 34.) Plaintiff

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explains that he refiled the motion because a motion to strike is not the proper vehicle to exclude the exhibits to Defendant's reply brief. (Notice of Objection, Doc. 34, at 1 n.1.) Plaintiff is correct that a motion to strike is not the proper vehicle here.

Pursuant to Federal Rule of Civil Procedure 12(f), governing motions to strike, "The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." For purposes of Plaintiff's motion, the operative word is "pleading." "Pleadings" are a complaint, an answer to a complaint, an answer to a counterclaim designated as a counterclaim, an answer to a crossclaim, a third-party complaint, an answer to a third-party complaint, and a reply to an answer. FED. R. CIV. P. 7(a). "Pleading" does not encompass a motion for summary judgment. Polite v. Dougherty Cty. Sch. Sys., 314 F. App'x 180, 184 n.7 (11th Cir. 2008) (per curiam); see also Addison v. Ingles Mkts., Inc., No. 3:11-CV-3 (CAR), 2012 WL 3600844, at *1 (M.D. Ga. Aug. 21, 2012) ("[A] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence" and "there is no need to make a separate motion to strike.") (emphasis in original) (quoting FED. R. CIV. P. 56(c)(2); id., advisory committee's notes (2010)).

Plaintiff attempts to correct the procedural defect in his Notice of Objection. (Doc. 34.) It appears Plaintiff asks that the Court treat the motion as an evidentiary objection. See

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Addison, 2012 WL 3600844, at *2. But Plaintiff raises no evidentiary objections to the November 7, 2017 Emails. In actuality, Plaintiff seeks the exclusion sanction available under Rule 37. Therefore, Plaintiff's motion to strike is properly construed as a motion for sanctions pursuant to Federal Rule of Civil Procedure 37(c)(1). See Almond v. City of Canton, No. 1:05-CV-02748-CAP/AJB, 2006 WL 8432780, at *1-2 (N.D. Ga. Dec. 5, 2006).

B. Federal Rule of Civil Procedure 37

Plaintiff relies on Federal Rule of Civil Procedure 37(c)(1) as the authority demanding the Court exclude the disputed evidence:

If a party fails to provide information . . . as required by Rule 26 . . . (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the 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, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions . . . .

The Parties do not dispute that Rule 26(e) obligated Defendant to supplement its document production with the Sales Chart and November 7, 2017 Emails. Therefore, the first question under Rule 37(c)(1) is whether Defendant's omissions were substantially justified or harmless.

1. Substantial Justification and Harmlessness

Under Rule 37(c)(1), sanctions are required if the nondisclosing party's failure was substantially justified or

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harmless. "An individual's discovery conduct should be found 'substantially justified' under Rule 37 if it is a response to a 'genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.'" In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335, 1358 (N.D. Ga. Feb. 3, 2012) (quoting Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993)). On the other hand, a discovery mistake is harmless "if it is honest[] and is coupled with the other party having sufficient knowledge that the material has not been produced." Id. (quoting Go Med. Indus. Pty, Ltd. v. Inmed Corp., 300 F. Supp. 2d 1297, 1308 (N.D. Ga. 2003)). Whether the opposing party suffered prejudice underlies the harmlessness determination. See Hewitt v. Liberty Mut. Grp., Inc., 268 F.R.D. 681, 683 (M.D. Fla. 2010). The nondisclosing party bears "[t]he burden of establishing that a failure to disclose was substantially justified or harmless." Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)). At the same time, "[t]he district court has broad discretion in determining whether a violation is justified or harmless" under Rule 37. Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1359 (S.D. Ga. 2012) (citation omitted).

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a. November 7, 2011 Emails

As for the November 7, 2017 Emails, Defendant argues that its failure to locate and produce the evidence was harmless. Defendant claims that its discovery blunder was an honest mistake and it utilized search terms gathered from Plaintiff's discovery requests. (Resp. to Mot. to Strike, at 4.) The Court finds no evidence that Defendant intentionally harbored the November 7, 2017 Emails.3 Moreover, the Court cannot comprehend a reason why Defendant would consider concealing evidence so advantageous to its defense.4 Therefore, the first portion of the harmlessness test, an honest mistake, is met.

The Court, however, reaches a different conclusion as to the second prong. Defendant claims that Ms. Schnepp's testimony sufficiently informed Plaintiff of...

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