Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Prusin v. Canton'S Pearls, LLC

United States District Court, D. Maryland

August 15, 2017

KRISTOFER L. PRUSIN Plaintiff
v.
CANTON'S PEARLS, LLC, Defendants

          MEMORANDUM OPINION

          Stephanie A. Gallagher United States Magistrate Judge

         On March 2, 2016, Plaintiff Kristofer Prusin filed a complaint against Canton's Pearls, LLC (t/a “Canton Dockside”) and its owner, Eric K. Hamilton, (collectively, “the Defendants”) under the Fair Labor Standards Act (“FLSA”) and Maryland State law. [ECF No. 1]. The case has been referred to me for all discovery and related scheduling matters. [ECF No. 18]. Presently pending is Plaintiff's Motion to Exclude Defendants' Supplemental Expert Report, as well as the opposition and reply thereto. [ECF Nos. 66');">66');">66');">66, 70');">70');">70');">70, 76]. No hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth herein, Plaintiff's motion will be DENIED.

         I. BACKGROUND

         On July 28, 2016, Judge Bredar ordered, in relevant part, that the Defendants' Rule 26(a)(2) expert disclosures were due on October 1, 2016. [ECF No. 12]. On October 3, 2016, the Defendants produced an expert report from Anthony Pelura, a CPA candidate. [ECF No. 66');">66');">66');">66-1]. In his report, Mr. Pelura opined that Canton Dockside owed Plaintiff $108.06 in unpaid minimum and overtime wages. Id. Following other extensions, on March 28, 2017, this Court entered a revised scheduling order that modified Plaintiff's rebuttal expert report deadline to May 1, 2017, the parties' supplementation deadline to May 19, 2017, and the discovery deadline to May 31, 2017. [ECF No. 52]. On May 1, 2017, Plaintiff produced rebuttal expert reports from Mr. Joel Heiserman and Mr. Alan Hayman. [ECF No. 66');">66');">66');">66-22, pp. 1-55]. In their rebuttal reports, Mr. Heiserman and Mr. Hayman opined that Canton Dockside's service charges did not qualify as wages under the FLSA. Id. On May 15, 2017, Plaintiff produced a supplemental expert report from Mr. Hayman. Id. at p. 56. On May 19, 2017, the Defendants produced a supplemental expert report from Mr. Pelura. [ECF No. 66');">66');">66');">66-23');">23]. In his supplemental report, Mr. Pelura opined that Canton Dockside's mandatory service charges were included in its gross receipts, and therefore constituted wages under the FLSA. Id. On May 30, 2017, one day before the close of discovery, Plaintiff filed the instant motion to exclude Mr. Pelura's expert report and his supplemental expert report. [ECF No. 66');">66');">66');">66].

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 26(a)(2)(A) requires a party to disclose “the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 70');">70');">70');">702, 70');">70');">70');">703, or 70');">70');">70');">705.” Fed.R.Civ.p. 26(a)(2)(A). In addition, Rule 26(a)(2)(B) requires parties to produce written reports for any witness who is “retained or specially employed to provide expert testimony in the case” or “whose duties as the party's employee regularly involve giving expert testimony.” Fed R. Civ. P. 26(a)(2)(B). An expert's report must be detailed and complete, and must include “a complete statement of all opinions the witness will express and the basis and reasons for them [and] the facts or data considered by the witness in forming them.” Id.; see also Osunde v. Lewis, 1 F.R.D. 250');">281 F.R.D. 250, 257 (D. Md. 2012) (“[T]he report must contain ‘a complete statement of all opinions the witness will express, ' as well as the basis and reasons for those opinions and the facts or data considered by the witness in forming his opinions.”); Fed.R.Civ.p. 26 advisory committee note (1993) (noting that the report “should be written in a manner that reflects the testimony to be given” by the expert witness).

         Federal Rule of Civil Procedure 26(e) requires that a Rule 26(a)(2) disclosure be supplemented “in a timely manner if the party [making the disclosure] learns that in some material respect the disclosure or response is incomplete.” Fed.R.Civ.p. 26(e)(1)(A). “[F]or an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition.” Fed.R.Civ.p. 26(e)(2). This required supplementation, however, “does not create a right to produce information in a belated fashion.” EEOC v. Freeman, 1 F.Supp.2d 783');">961 F.Supp.2d 783, 797 (D. Md. 2013). “To construe supplementation to apply whenever a party wants to bolster or submit additional expert opinions would [wreak] havoc on docket control and amount to unlimited expert opinion preparation.” Campbell v. United States, 70');">70');">70');">70 Fed.Appx. 153');">470');">70');">70');">70 Fed.Appx. 153, 157 (4th Cir. 2012) (citations and internal quotation marks omitted).

         III. ANALYSIS

         Although his motion is only entitled “Motion to Exclude Supplemental Expert Report, ” Plaintiff appears to argue that Mr. Pelura's original expert report should be excluded because it is untimely and incomplete. [ECF No. 66');">66');">66');">66, p17');">p. 17-20]. Plaintiff also contends that Mr. Pelura's supplemental expert report should be excluded because it “contains entirely new and different information and opinions” based on previously available materials in violation of Rule 26(e)(2).[1" name= "FN1" id="FN1">1]Id. In opposition, the Defendants argue that Mr. Pelura's expert report is timely and complete, and that his supplemental expert report is proper under Rule 26(e). [ECF No. 70');">70');">70');">70, 17');">p. 17].

         A. Mr. Pelura's Original Expert Report

         First, Plaintiff contends that Mr. Pelura's expert report should be excluded because it is untimely. [ECF No. 66');">66');">66');">66, p17');">p. 17-20]. Plaintiff correctly notes that the Defendants' expert report deadline was October 1, 2016. [ECF No. 12]. However, because October 1, 2016 was a Saturday, the Defendants' deadline was modified to October 3, 2016. Fed.R.Civ.P. 6(a)(1)(C) (holding that “if the last day [of a period] is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”). On October 3, 2016, then, the Defendants timely filed Mr. Pelura's expert report. [ECF No. 66');">66');">66');">66-1].

         Second, Plaintiff contends that Mr. Pelura's expert report should be excluded because it is incomplete. [ECF No. 66');">66');">66');">66, pp. 17-20]. As noted above, an expert's report must be detailed and complete, and must include “a complete statement of all opinions the witness will express and the basis and reasons for them [and] the facts or data considered by the witness in forming them.” Fed R. Civ. P. 26(a)(2)(B); see also Osunde v. Lewis, 281 F.R.D. 250, 257 (D. Md. 2012). Specifically, Rule 26 requires that an expert report contain: (1) the opinions a witness will express and their basis; (2) the data considered by the witness; (3) any exhibits used to support the witness; (4) the witnesses qualifications, including all publications authored in the last ten years; (5) a list of all other cases that the witness testified as an expert; (6) and a statement of compensation. See Fed. R. Civ. p. 26(a)(2)(B). In this case, Mr. Pelura's report is complete under Rule 26(a)(2)(B). Mr. Pelura opines that Canton Dockside's service charge payments counted towards the Defendants' wage obligations under the FLSA. [ECF No. 66');">66');">66');">66-1]. Specifically, Mr. Pelura opines that Plaintiff was “owed $108.06 for a minimum wage adjustment for period of 3/25/2013 to 4/7/2013.” Id. To support his conclusion, Mr. Pelura provides the basis for his opinion, notes the methodology he employed, and cites the data he considered. Id. Moreover, Mr. Pelura notes his qualifications, lists the only other case in which he has testified as an expert, and provides a statement of his compensation in accordance with Rule 26(a)(2)(B). Id. Although Mr. Pelura's report is admittedly brief, it provides sufficient information to satisfy Rule 26's completeness requirement. Accordingly, exclusion of Mr. Pelura's expert report is unwarranted.

         B. Mr. Pelura's Supplemental Expert Report

         Plaintiff also moves to exclude Mr. Pelura's supplemental expert report because it “contains entirely new and different information and opinions” based on previously available evidence in violation of Rule 26(e)(2). [ECF No. 66');">66');">66');">66, pp. 16-22]. Rule 26(e)(2) confers a duty on all parties to supplement or correct any expert reports required to be disclosed under Rule 26(a)(2)(B). See Fed. R. Civ. p. 26(e)(2). Specifically, the rule requires that a Rule 26(a)(2)(B) disclosure be supplemented “in a timely manner if the party [making the disclosure] learns that in some material respect the disclosure or response is incomplete or incorrect.” Fed.R.Civ.p. 26(e)(1)(A). “Supplementation under the Rules means correcting inaccuracies, or filling the interstices of a[n] incomplete report based on information that was not available at the time of the initial disclosure.” Keener v. United States, 181 F.R.D. 639');">181 F.R.D. 639, 640 (D. Mont. 1998); Congressional Air, Ltd. v. Beech Aircraft Corporation, 176 F.R.D. 513');">176 F.R.D. 513, 516 (D. Md. 1997) (same). This required supplementation, however, “does not create a right to produce information in a belated fashion.” EEOC v. Freeman, 1 F.Supp.2d 783');">961 F.Supp.2d 783, 797 (D. Md. 2013) (citation omitted). Indeed, “[t]o construe ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.