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Hillesheim v. Holiday Stationstores, Inc.

United States District Court, D. Minnesota

August 31, 2017

Zach Hillesheim, Plaintiff,
v.
Holiday Stationstores, Inc., Defendant.

          Padraigin L. Browne, Browne Law, LLC, Counsel for Plaintiff.

          Tamara L. Novotny, Cousineau, Van Bergen, McGee & Malone, P.A., Counsel for Defendant.

          MEMORANDUM OPINION AND ORDER

          Michael J. Davis, United States District Court.

         This matter is before the Court on Defendant's motion for summary judgment and Plaintiff's motion to strike the Baregi Affidavit and motion to strike Defendant's untimely response to Plaintiff's motion to strike the Baregi Affidavit.

         I. Background

         Plaintiff commenced this action against Defendant Holiday Stationstores, Inc. (“Holiday”) alleging that Holiday violated the ADA and the MHRA at its store located at 255 Triangle Lane, Jordan, Minnesota. Specifically, Plaintiff alleges that the access aisle adjacent to the accessible parking space for the handicapped parking was not level, and the curb ramp providing access to the sidewalk adjacent to the store projected into the access aisle. (Compl. ¶ 13.)

         In response to Plaintiff's complaint, Holiday asserts it took prompt action to upgrade the parking lot and address the specific issues raised by Plaintiff. Holiday asserts that the upgrade was temporary, because it had already planned to remodel the store prior to the commencement of this lawsuit, including the parking lot. Such remodel of the parking lot was completed in April 2017.

         II. Standard for Summary Judgment

         Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party seeking summary judgment bears the burden of showing that there is no disputed issue of material fact. Celotex, 477 U.S. at 323. “A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)). The party opposing summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).

         III. ADA Claim

         A. Motion to Strike

         In support of its motion to dismiss Plaintiff's ADA claim, Holiday has submitted the affidavit of John Baregi, Vice President of Engineering. In his affidavit, Baregi addressed the temporary upgrade of the handicapped parking at the store, and also discussed the complete parking lot remodel. Attached to the affidavit are photographs of the temporary upgrade and the permanent remodel of the parking lot, which shows ADA compliant handicapped parking. Accordingly, Holiday argues the ADA claim should be dismissed as moot.

         Plaintiff argues the Baregi affidavit is not properly before the Court because neither Baregi or the photographs attached to his affidavit were disclosed to Plaintiff prior to the date on which Holiday filed its motion for summary judgment. Plaintiff argues that Rule 26(a) of the Federal Rules of Civil Procedure imposes affirmative disclosure obligations, including the disclosure of each individual likely to have discoverable information. Because Holiday did not disclose the identity of Baregi prior to moving for summary judgment, the Court should strike his affidavit pursuant to Rule 37(c)(1)[1].

         When a party fails to disclose a witness properly, the Court may exclude the testimony unless the party's failure to comply is substantially justified or harmless. Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). In determining the proper remedy or sanction, the Court should consider, among other things, “the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony.” Id. Exclusion of evidence is a harsh penalty that should be used sparingly. Id.

         Holiday responds that it did not violate Rule 26 disclosure requirements. The Rule recognizes that as a party prepares its case, new disclosures may come to light and requires the party to supplement its earlier disclosures in a timely manner. In this case, Holiday asserts it planned to seek dismissal based on Plaintiff's failure to provide proper pretrial notice, which would not require witness disclosures. As the case progressed, Holiday determined that it could also argue for dismissal based on the affirmative defense that it remedied the violation identified in Plaintiff's complaint. When seeking information on when it upgraded the parking lot, Holiday determined that John Baregi could provide the necessary information. It then disclosed Baregi to Plaintiff as required by Rule 26. It is thus Holiday's position that it did not violate the Rules.

         Holiday further argues that even if the late disclosure violated Rule 26, exclusion of the Baregi affidavit is not required because Plaintiff cannot claim surprise or prejudice. In addition, counsel for Holiday offered to allow Plaintiff the opportunity to depose Baregi if counsel thought it necessary in order to respond to Holiday's motion. (Supp. Novotny Aff. Ex. 9.) Holiday ...


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