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Hobbs v. Martin

United States District Court, D. Maryland

August 23, 2018

GARY HOBBS, Plaintiff,
SEAN ST. MARTIN, Defendant.



         Gary Hobbs (“Plaintiff”) brought an action against Sean St. Martin (“Defendant”) for Money Had and Received (Count I) and Unjust Enrichment (Count II). (Am. Compl., ECF No. 29.) Now pending before the Court is Plaintiff's Motion to Strike Defendant's Expert. (ECF No. 47.) The Motion has been briefed (ECF Nos. 47-1, 52, and 54) and no hearing is required, see Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Plaintiff's Motion will be granted.

         I. Background

         Both parties have submitted lengthy briefs and factual narratives in support of their arguments regarding Defendant's expert witness. However, the issue presented is in fact narrow and straightforward. The instant dispute can be summarized as follows: The Court entered an Order with which neither party complied and now each attempts to cry foul over the other's noncompliance.

         On February 10, 2017, the Court entered a Scheduling Order. (ECF No. 34.) That Order set a deadline by which each party was required to make his Rule 26(a) disclosures, to include the disclosure of any expert witness and that witness's report. Plaintiff's expert disclosures were due on or before May 29, 2017, and Defendant's expert disclosures were due on or before June 26, 2017.

         On May 30, 2017, one day after the due date, Plaintiff served Defendant with a document titled “Plaintiff Gary Hobbs's Disclosure of Expert Witness.” (ECF No. 52-2.) The Disclosure identified Anthony D. Hulbert, a Certified Public Accountant (“CPA”), as Plaintiff's expert witness who was “expected to testify as to the financial and accounting records . . . of Defendant, Stag Mountain, LLC, Tamarack, and any other entity in which Defendant and/or Richard Hagen are or were members or held an interest.” (Id. at 2.) The Disclosure did not include an expert report. According to Plaintiff, he was unable “to produce an expert report or further disclose [his] expert's testimony at th[e] time” because Defendant had yet to produce “numerous financial and accounting records” that were the subject of a motion to compel. (Id.) Plaintiff never provided a report from Mr. Hulbert.

         Defendant served Plaintiff with his expert disclosure on June 26, 2017. Defendant's disclosure, like Plaintiff's, identified a single expert-Joel B. Charkatz, a CPA. (Defendant Sean St. Martin's Disclosure of Expert Witness, ECF No. 47-4.) Also like Plaintiff, Defendant failed to include an expert report with his Disclosure. Defendant stated that he had not included an expert report because he had not received a report from Plaintiff's expert “to which Mr. Charkatz may respond.” (Id. at 2.) Defendant, however, “reserve[d] the right to produce an expert report and supplement []his disclosure upon the receipt of a report from Plaintiff.” (Id.)

         The parties apparently resolved the discovery disputes referenced in Plaintiff's Disclosure, and they filed a Joint Stipulation to Modify Discovery on July 21, 2017. (ECF No. 38.) The Joint Stipulation requested an additional ninety days to complete discovery, making November 13, 2017, the date for completion of discovery. Notably, the parties did not seek to extend the deadline-which had already passed-for their Rule 26(a) disclosures. On July 24, 2017, the Court granted the parties' request and modified the schedule accordingly. (ECF No. 39.)

         Somewhat mystifyingly, the parties apparently never discussed each other's failure to provide an expert report. Nor did either party ever inquire of the other as to whether he still intended to rely on the expert he had disclosed. Then, on November 13, 2017, the last day of discovery, Defendant provided a report from his expert Mr. Charkatz. Plaintiff, understandably surprised by this last second (and long overdue) report, sought to depose Mr. Charkatz; however, Defendant refused to make his expert available for a deposition because discovery had closed. Plaintiff then filed the instant motion to preclude Defendant from using his expert's opinions in support of summary judgment or at trial.

         In the meantime, the Court denied Defendant's Motion for Summary Judgment. Defendant did not rely on Mr. Charkatz's opinion in that Motion. However, he presumably intends to do so at trial.

         II. Standard for Excluding Evidence Under Rule 37(c)(1)

         Rule 37(c)(1) provides that a party who “fails to provide information or identify a witness as required by Rule 26(a) . . . 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.” To determine whether a party's nondisclosure of information required by Rule 26(a) is “substantially justified” or “harmless” courts in this Circuit are guided by the following five factors:

(1) the surprise to the party against whom the evidence would ...

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