Rodman v. Safeway Inc., No. 3:2011cv03003 - Document 354 (N.D. Cal. 2015)
Court Description: ORDER GRANTING SAFEWAY'S MOTION IN LIMINE NO. 3 TO EXCLUDE THE TESTIMONY OF ERIC FALSKEN by Judge Jon S. Tigar granting 335 Motion in Limine. (wsn, COURT STAFF) (Filed on 9/11/2015)
Download PDF
<![CDATA[
Rodman v. Safeway Inc. Doc. 354 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL RODMAN, Case No. 11-cv-03003-JST Plaintiff, 8 v. 9 10 SAFEWAY, INC., Defendant. ORDER GRANTING SAFEWAY'S MOTION IN LIMINE NO. 3 TO EXCLUDE THE TESTIMONY OF ERIC FALSKEN Re: Dkt. No. 335 United States District Court Northern District of California 11 12 Now before the Court is Defendant Safeway, Inc.’s motion in limine to exclude the 13 14 testimony of witness Eric Falsken. ECF No. 335. The Court will grant the motion. 15 I. 16 BACKGROUND This is a consumer class action about Safeway’s online grocery delivery business, which 17 operates through the Safeway.com website. ECF No. 1. The case concerns Safeway’s online 18 grocery delivery business, which operates through the Safeway.com website. Plaintiff alleges in 19 his complaint that Safeway promised Safeway.com customers that they would pay the same prices 20 online that Safeway charged in its physical stores, but that in fact Safeway marked up its online 21 prices without telling its online customers. Plaintiff filed his lawsuit on June 17, 2011. 22 The parties’ allegations and defenses are set forth in several other prior Court orders. In 23 those orders, the Court certified a class of Safeway.com customers; entered summary judgment in 24 favor of Plaintiff and the class regarding liability with regard to class members who registered 25 with Safeway.com on or after January 1, 2006; and entered summary judgment in Plaintiff’s favor 26 regarding damages during the same period. The Court denied summary judgment to Plaintiff with 27 regard to class members who registered prior to January 1, 2006, finding that disputes of material 28 fact remained concerning whether “class members who registered prior to 2006 ever assented to Dockets.Justia.com 1 [the] Special Terms” promising price parity between the online and physical stores. ECF No. 331 2 at 28. Trial with regard to Safeway’s liability, if any, for the pre-2006 period is scheduled to begin 3 on October 7, 2015. Of relevance to this motion, prior to 2006, Safeway participated in a joint venture called 4 5 GroceryWorks that operated the online portion of Safeway’s business. Safeway owned part of 6 GroceryWorks, but it was a separate entity from Safeway. ECF No. 273 at 4:8-10. On August 20, 2015, Plaintiff submitted a declaration from Eric Falsken in support of 7 8 Plaintiff’s motion for summary judgment as to the period before 2006. ECF No. 325. The 9 declaration was filed late, coming almost three weeks after the Court had taken the motion under submission after hearing. In it, Falsken stated that he was employed by GroceryWorks from 11 United States District Court Northern District of California 10 November 2001 to September 2002 as a software engineer, and that he wrote code related to the 12 user registration process for Safeway.com. ECF No. 325-2. He further stated that the code as 13 written required Safeway.com registrants to agree to certain “Terms and Conditions” before being 14 accepted by Safeway. Id. His declaration does not address whether registrants were required to 15 agree to the “Special Terms” at issue in this case, or whether the “Terms and Conditions” to which 16 he refers were the same as those “Special Terms.” Falsken is not alleged ever to have worked directly for Safeway. In its motion to exclude 17 18 Falsken’s testimony, and in its prior opposition to Plaintiff’s motion to permit the late filing of 19 Falsken’s declaration in connection with the pending summary judgment motions,1 Safeway states 20 without contradiction that it has no record of Falsken or his work, and that the Plaintiff’s 21 submission of Falsken’s declaration was the first time Safeway became aware of Falsken’s 22 existence. The only justification Plaintiff gave for his delay in providing this evidence was that 23 Plaintiff’s counsel did not “intensif[y] preparations for possible trial . . . including internet search 24 for potential rebuttal and/or impeachment evidence with respect all currently-unresolved issues” 25 until after the summary judgment hearing. ECF No. 325 at 2. It appears that Plaintiff located 26 27 28 The Court denied Plaintiff’s motion to submit Falsken’s untimely declaration in support of its summary judgment motion, but left for another day whether Falsken would be permitted to testify at trial. ECF No. 331 at 29 n.14. 2 1 1 Falsken by using an online search engine that he could have used at any time. ECF 344 at 2:4-7 2 (“In preparing for a trial concerning pre-2006 issues, including seeking to identify potential 3 rebuttal and/or impeachment evidence available online, Plaintiff’s counsel located the LinkedIn 4 webpage of Eric Falsken, which listed him as a former Software Engineer for GroceryWorks from 5 November 2001 through September 2002.”). The discovery deadline for summary judgment related discovery passed on June 23, 2014. 6 7 ECF No. 169 at 2. 8 II. 9 ANALYSIS Federal Rule of Civil Procedure 26(a)(1) requires a party to identify, without waiting for a discovery request, the identity of all potential witnesses and the purposes for which they may be 11 United States District Court Northern District of California 10 called. Rule 26(e)(1) further provides that a party has a duty to supplement its earlier disclosures 12 when they are incorrect or incomplete. When a party “fails to provide information or identify a 13 witness as required by Rule 26(a) or (e), the party is not allowed to use that information or 14 witness . . . at trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. Proc. 15 37(c)(1). 16 “Among the factors that may properly guide a district court in determining whether a 17 violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party 18 against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the 19 likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely 20 disclosing the evidence.” Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 21 2010). The burden to prove harmlessness is on the party facing sanctions. Yeti by Molly, Ltd. v. 22 Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). 23 The Court finds that Plaintiff’s late disclosure was not substantially justified. “Substantial 24 justification is justification to a degree that could satisfy a reasonable person that parties could 25 differ as to whether the party was required to comply with the disclosure request.” Hewitt v. 26 Liberty Mut. Grp., Inc., 268 F.R.D. 681, 682 (M.D. Fla. 2010) (internal quotation marks omitted). 27 Here, no one suggests that there was a legitimate dispute concerning Plaintiff’s discovery 28 obligations, Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir. 1981), or any other impediment to 3 1 Plaintiff’s having disclosed Felsken earlier, had Plaintiff timely searched for the information. The 2 case has been pending for four years. 3 The Court next turns to the question of whether the late disclosure was harmless. First, the 4 Court concludes that there will be “prejudice or surprise” to Safeway if Felsken is allowed to 5 testify. Discovery is closed; the parties’ pretrial disclosures have all been filed; and trial is 6 scheduled to begin in a few weeks. Safeway has been deprived of the opportunity to prepare for 7 trial by deposing Falsken, evaluating his testimony, gathering responsive evidence, and filing 8 motions concerning Falsken’s testimony. That prejudices Safeway. Garcia v. Qwest Corp., No. 9 CV-07-999-PHX-LOA, 2008 WL 4531657, at *5 (D. Ariz. Oct. 3, 2008); Elliott v. United Parcel Serv., Inc., No. C07-05453 RBL, 2009 WL 213004, at *2 (W.D. Wash. Jan. 28, 2009); Jones v. 11 United States District Court Northern District of California 10 Frazesn, No. 2:07-CV-02758 RCT, 2009 WL 3254905, at *2 (E.D. Cal. Oct. 8, 2009). 12 Next, the Court concludes that Plaintiff cannot cure that prejudice. Plaintiff argues that 13 there is still enough time for Safeway to take Falsken’s deposition, but that is unlikely to be the 14 end of Safeway’s need to respond. If the deposition goes forward, Safeway will likely ask to take 15 other formal and informal discovery to respond to Falsken’s testimony. It is very unlikely that this 16 work could be completed and incorporated into the parties’ pretrial preparations quickly enough to 17 begin trial on October 7, 2015, as currently scheduled. 18 For similar reasons, the Court also concludes that the likelihood of disruption of the trial, if 19 the Court were to allow Falsken’s testimony, is high. Safeway has stated its intention to seek not 20 only the right to fully investigate the new evidence, but to meet it with additional evidence. ECF 21 No. 335 at 3. This will disrupt the trial schedule to the prejudice of both Defendant and the 22 Court. “Disruption to the schedule of the court and other parties in that manner is not harmless. 23 Courts set such schedules to permit the court and the parties to deal with cases in a thorough and 24 orderly manner, and they must be allowed to enforce them, unless there are good reasons not to.” 25 Wong v. Regents of Univ. of California, 410 F.3d 1052, 1062 (9th Cir. 2005). 26 Lastly, the Court concludes that Plaintiff’s conduct was willful. The Ninth Circuit “has 27 stated that ‘disobedient conduct not shown to be outside the control of the litigant’ is all that is 28 required to demonstrate willfulness, bad faith, or fault.” Henry v. Gill Indus., Inc., 983 F.2d 943, 4 1 948 (9th Cir. 1993) (quoting Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1341 (9th 2 Cir. 1985)). Plaintiff may argue that its failure to discover Falsken’s identity earlier was the result 3 of simple negligence, not a calculated attempt to deprive Safeway of relevant evidence, but 4 “[i]nadvertent mistakes and unintentional oversights are not substantial justifications for delay.” 5 Baltodano v. Wal-Mart Stores, Inc., No. 2:10-CV-2062-JCM-RJJ, 2011 WL 3859724, at *2 (D. 6 Nev. Aug. 31, 2011). 7 In Baltodano, Plaintiff’s counsel failed to provide a complete and accurate estimate of the 8 future medical damages suffered by Plaintiff until after the expert disclosure deadline had passed. 9 Id. at *3. There was no evidence that counsel had affirmatively intended to frustrate defendant, merely that “while he had intended to [provide a complete estimate] at the outset of discovery,” he 11 United States District Court Northern District of California 10 failed to do so “despite having had nearly the entire discovery period within which to gather such 12 evidence.” Id. at *4. The court concluded that counsel’s failure was willful. Id. Here, the 13 evidence concerning Falsken was available to Plaintiff at any time he chose to look for it. It was 14 available before the Rule 26 disclosure deadline; indeed, it was available before Plaintiff filed his 15 complaint. Plaintiff simply did not look in time. The Court concludes that the failure to disclose 16 Falsken was willful. The Court recognizes that Falsken’s testimony is important, perhaps even central, to 17 18 Plaintiff’s claim that Safeway required assent to the Special Terms prior to January 1, 2006, and 19 that exclusion of this evidence will have a serious negative impact on Plaintiff’s claim. 20 Nonetheless, where late discovery has seriously prejudiced the Court and parties without 21 substantial justification, “discovery sanctions can be appropriate even where they preclude ‘a 22 litigant’s entire cause of action or defense.’” Jarritos, Inc. v. Reyes, 345 F. App’x 215, 217 (9th 23 Cir. 2009) (quoting Yeti, 259 F.3d at 1106). 24 /// 25 /// 26 /// 27 /// 28 /// 5 CONCLUSION 1 2 For all the foregoing reasons, the Court concludes that Plaintiff’s failure timely to disclose 3 Eric Falsken was neither substantially justified nor harmless. Safeway’s motion in limine to 4 exclude Falsken’s testimony is granted. 5 6 7 8 IT IS SO ORDERED. Dated: September 11, 2015 ______________________________________ JON S. TIGAR United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
