United States District Court, D. Minnesota
Padraigin L. Browne, Browne Law, LLC, Counsel for Plaintiff.
L. Novotny, Cousineau, Van Bergen, McGee & Malone, P.A.,
Counsel for Defendant.
MEMORANDUM OPINION AND ORDER
Michael J. Davis, United States District Court.
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
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. ¶
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.
Standard for Summary Judgment
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
Motion to Strike
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.
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
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.
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.
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 ...