S.E.S. v. Galena Unified Sch. Dist. No. 499
| Citation | 446 F.Supp.3d 743 |
| Decision Date | 11 March 2020 |
| Docket Number | Case No. 18-2042-DDC |
| Parties | S.E.S., AS NEXT FRIEND and mother OF minor, J.M.S., Plaintiff, v. GALENA UNIFIED SCHOOL DISTRICT NO. 499, Defendant. |
| Court | U.S. District Court — District of Kansas |
Arthur A. Benson, II, Jamie Kathryn Lansford, Law Office of Arthur Benson, II, Kansas City, MO, for Plaintiff.
Gregory P. Goheen, McAnany, Van Cleave & Phillips, PA, Kansas City, KS, for Defendant.
Plaintiff S.E.S. brings this action against defendant Galena Unified School District No. 499 on behalf of her minor son J.M.S., asserting sex or gender harassment violating Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681 – 1688 ("Title IX"). Defendant has filed a Motion for Summary Judgment (Doc. 71). It contends the uncontroverted facts do not support J.M.S.'s Title IX claim that defendant discriminated against him because he did not conform to stereotypical expectations of masculinity. Doc. 72 at 1. Plaintiff has filed a Response in Opposition to defendant's motion (Doc. 75). And, defendant then filed a Reply Memorandum (Doc. 80).
This matter also comes before the court on defendant's Motion to Strike Certain Declarations Submitted in Connection with Plaintiff's Response to Defendant's Motion for Summary Judgment (Doc. 78). Defendant asks the court to strike two declarations submitted by plaintiff, arguing that plaintiff failed to identify them timely in her Rule 26 disclosures. Doc. 79 at 1. Plaintiff has filed a Memorandum in Opposition (Doc. 81) and defendant has filed a Reply (Doc. 82).
These matters thus are fully briefed, and the court is prepared to rule. Because the court considers the two declarations in the statement of facts and summary judgment analysis below, the court first addresses defendant's motion asking the court to strike the declarations. Then, the court addresses defendant's arguments for summary judgment. For reasons explained below, the court denies defendant's Motion to Strike Certain Declarations (Doc. 78) and the court denies defendant's Motion for Summary Judgment (Doc. 71).
Defendant moves to strike the declarations of two individuals—S.D.K. and A.R.D.—submitted by plaintiff with her Response to defendant's summary judgment motion. Doc. 78. Defendant argues the court should exclude S.D.K. and A.R.D.'s declarations because these individuals were not identified timely as witnesses in plaintiff's Rule 26 disclosures or supplements. Doc. 79 at 1.
Under the Initial Order Regarding Planning and Scheduling, the parties' initial Rule 26(a) disclosures were due September 10, 2018. Doc. 20 at 2. And, under the Scheduling Order, the court ordered the parties to serve all supplemental disclosures no later than "40 days before completion of all discovery." Doc. 28 at 3. Any "supplemental disclosures served 40 days before the deadline for completion of all discovery must identify all witnesses and exhibits that probably or even might be used at trial." Id.
Plaintiff did not disclose S.D.K. or A.R.D. in her September 10, 2018 initial Rule 26(a) disclosures. Plaintiff also did not identify them in her June 3, 2019 supplemental Rule 26(a) disclosures.1 On June 10, 2019, plaintiff emailed defendant providing the two declarations and noting that plaintiff would "at some early point supplement [her] disclosures [of] these two witnesses." Doc. 79-3 at 2. Plaintiff supplemented her Rule 26 disclosures for a second time on June 28, 2019. This second supplemental disclosure—made the last business day before the close of discovery—identified S.D.K. and A.R.D. But, plaintiff did not provide any address or telephone number for these witnesses in her disclosure.2 Doc. 79-4 at 2. However, the declarations provided to defendant on June 10, 2019 did provide addresses for S.D.K. and A.R.D. Doc. 75-2; Doc. 75-3. Discovery closed on July 1, 2019. Doc. 28 at 4.
Plaintiff now uses the two declarations to oppose defendant's motion for summary judgment. Defendant argues the court should strike these declarations under Fed. R. Civ. P. 37(c)(1) and Fed. R. Civ. P. 26(e). The intent of the disclosure deadlines is to place the "opposing party and counsel ... in a realistic position to make judgments about whether to take a particular deposition or pursue follow up ‘written’ discovery before the time allowed for discovery expires." Doc. 28 at 3. Indeed, the Scheduling Order warned: "[s]hould anything be included in the final disclosures under Fed. R. Civ. P. 26(a)(3) that has not previously appeared in the initial Rule 26(a)(1) disclosures or a timely Rule 26(e) supplement thereto, the witness or exhibit probably will be excluded from offering any testimony under Fed. R. Civ. P. 37(c)(1)." Id. at 3–4.
Under Fed. R. Civ. P. 26(e)(1)(A), parties are required to supplement or correct their disclosures "in a timely manner if the party learns that in some material respect the disclosure or response 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. 37(c)(1) provides that a party who "fails to provide information or identify a witness as required by Rule 26(a) or (e) ... is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless."
Defendant contends that plaintiff's disclosures were untimely, and the court should preclude plaintiff from using the declarations as evidence. Plaintiff provided the declarations less than a month before discovery closed and after the scheduled deadline for supplemental disclosures. And, plaintiff formally disclosed the individuals as witnesses on the last business day before discovery closed. So, defendant argues, it was denied "an opportunity to discover information about these witnesses' testimony, including taking their deposition[s], if necessary." Doc. 79 at 5.
Plaintiff concedes that her disclosures failed to comply with the deadlines provided in the Scheduling Order. And plaintiff does not give a justification for the delay. But, plaintiff argues the late disclosures were harmless, and thus the court should allow plaintiff to use the declarations to oppose defendant's summary judgment motion.
Jacobsen v. Deseret Book Co. , 287 F.3d 936, 953 (10th Cir. 2002) (internal quotation marks and citation omitted).
Defendant cited these factors in its brief, but didn't analyze them. The court now turns to that task, analyzing the four factors and finding they favor allowing plaintiff to use the evidence to oppose summary judgment. While plaintiff inexplicably failed to abide by the court's deadlines for the Rule 26(a) disclosures and supplements, the court is persuaded that the failure was harmless.
First , the court finds that defendant has sustained little prejudice or surprise from the late disclosure. Though defendant contends it did not have ample opportunity to discover information about or depose S.D.K. and A.R.D, defendant received the declarations along with notice that plaintiff planned to supplement plaintiff's disclosures three weeks before discovery closed. See Esparza v. Regent Ins. Co. , No. 17-1163-JTM-KGG, 2019 WL 3006436, at *2 (D. Kan. July 10, 2019) (). The declarations included the subjects of information from S.D.K. and A.R.D. that plaintiff would use to support plaintiff's claim, along with their names and addresses. Defendant never asserts that it took any action to conduct written discovery or schedule a deposition with S.K.D. or A.R.D. before discovery closed. Nor does defendant assert that it tried to work with plaintiff's counsel about extending the discovery deadline to conduct the needed discovery. And defendant never sought permission—from plaintiff or the court—to depose these witnesses after discovery closed.
The parties also participated in a final pretrial conference with Magistrate Judge Mitchell on July 26, 2019. Doc. 66. From the Pretrial Order, it does not appear defendant raised any objections to plaintiff's last-minute Rule 26(e) supplemental disclosures during that conference. See Doc. 67.3 Instead, defendant filed the motion to strike presently before the court after plaintiff responded to defendant's summary judgment motion. The dispositive motion deadline was set for August 16, 2019, which the court later extended to September 13, 2019 at defendant's request. Doc. 70. Defendant easily could have requested an opportunity to depose these witnesses before the deadline to file its summary judgment motion. It never did. In short, while plaintiff made the disclosures past the deadline in the Scheduling Order, the court finds that this tardiness did not inflict sufficient prejudice or surprise meriting...
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...Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1097 (D. Minn. 2000). See also S.E.S. ex rel. J.M.S. v. Galena Unified Sch. Dist. No. 499, 446 F. Supp. 3d 743 (D. Kan. 2020) (holding a rational trier of fact could find the discrimination was because of sex since student-harassers’ objectives we......