Steven Johnson, Plaintiff, v. Hooters, Inc., et al., Defendant Case No. 2:18-cv-01381-RFB-BNW United States District Court, D. Nevada Filed April 16, 2020 Counsel Andrew Williams, Pro Hac Vice, South Miami, FL, David Lee Phillips, David Lee Phillips & Associates, Las Vegas, NV, for Plaintiff. Christopher Ammon Lund, Thomas E. McGrath, Tyson & Mendes, LLP, Henderson, NV, for Defendant. Weksler, Brenda, United States Magistrate Judge ORDER Before the Court is defendants HILV Fee, LLC and NAV-115 E. Tropicana, LLC's (the “defendants”) motion to exclude damages, filed February 6, 2020. ECF No. 66. On February 21, 2020, plaintiff Steven Johnson filed a motion to strike or, in the alternative, response to defendants' motion. ECF No. 69. Defendants filed a response to Johnson's motion to strike (ECF No. 71) and reply in support of their motion to exclude damages (ECF No. 72).[1] On April 2, 2020, the parties' motions came on for hearing before this Court. ECF No. 75. During oral argument, Johnson introduced new arguments and relied on cases not previously raised in his papers. Defendants objected. In turn, this Court asked Johnson to provide a written supplement and asked defendants to both respond and brief whether this Court should entertain arguments not previously raised in Johnson's papers. Plaintiff filed his supplement on April 3, 2020 and Defendants on April 6, 2020. ECF Nos. 77 and 78. I. Background and procedural posture. Johnson alleges that in the early morning hours of July 25, 2016, he was assaulted in his room by security at Hooters Hotel. ECF No 1 at 3. The asserted causes of action are negligence, assault, and battery. Id. at 4–5. As mentioned, defendants filed the underlying motion on February 6, 2020. In their motion, defendants explain that on November 8, 2019, Johnson made initial disclosures that lacked a calculation of damages and copies of medical records, as required by Federal Rules of Civil Procedure 26(a)(1)(A)(ii)–(iii). ECF No. 66-1. On December 3, 2020, defendants propounded requests for production, admissions,[2] and interrogatories, designed in part to gain information about Johnson's purported damages. ECF Nos. 66-3 and 66-4. Johnson requested, and was granted, an extension until January 27, 2020, to comply with these requests. ECF No. 66-2. But he did not comply by that date. ECF No. 66 at 6. As a result, defendants filed the instant motion requesting that this Court exclude evidence of damages pursuant to Rule 37. See FED. R. CIV. P. 37(c)(1). Defendants argued that Johnson was not substantially justified in failing to comply with the disclosure requirements of Rules 26(a)(1)(A)(ii)–(iii) and that this failure was not harmless. First, defendants argue that Johnson's injury took place on July 25, 2016, and he sought medical treatment that same day. Thus, Johnson had more than three years to gather documentation prior to the initial disclosure deadline. ECF No. 66 at 7. In addition, defendants sought this information by way of interrogatories and requests for production, but Johnson failed to respond to these requests, even after defendants granted him an extension. Id. Defendants even requested that Johnson execute a medical release, which would have enabled them to obtain Johnson's medical records; Johnson did not provide one. Id. at 8. Defendants claim this failure is not harmless, given they have no information at all about Johnson's claimed injuries or damages. Id. At the time defendants filed the instant motion, the expert disclosure deadline was twelve days away. Id Yet, they did not have any medical information to provide to any such potential expert, and nor did they know what other kinds of experts, if any, might be needed. Id. On February 21, 2020, Johnson filed a motion to strike, or in the alternative, a response to defendants' motion. ECF No. 69. In his motion, Johnson did not dispute the timeline provided by defendants. Neither did he dispute the failure to provide a calculation of damages and copies of medical records in his initial disclosures, or that he failed to respond to the other discovery requests. Id. Instead, Johnson argued only that defendants were required, under LR IA 1-3(f) and LR 26-7, to meet and confer before filing their motion.[3] In essence, Johnson argued that as a result of failing to meet and confer, defendants' motion should be stricken or denied. Id. In their response to Johnson's filing, defendants argued that there exists no meet-and-confer requirement for motions for sanctions under Rule 37. ECF No. 71. In addition, defendants argued that to the extent Johnson's filing was a response to defendants' motion, the response was one day late. Id. Because the filing was late, defendants argued that this Court should deem their motion unopposed and grant it under LR 7-2(d). Id. Lastly, Defendants argued that motions to strike are proper only when pleadings are involved, which is not the case here. Id. During oral argument on the parties' motions, defendants repeated much of what had been asserted in writing. They noted that Johnson provided a computation of damages on the day before the hearing. Nevertheless, defendants reasserted that they had been precluded from mounting a defense: expert disclosures deadlines had passed and, having no information regarding damages, they were unable to provide any pertinent information to any experts and were unable to determine which experts would be appropriate to retain. Defendants also emphasized that even considering the information that Johnson recently provided, the discovery deadline was a mere fifteen days away, undercutting their ability to fully investigate and propound discovery based on this new information. For the first time at oral argument, Johnson raised substantive arguments as to why evidence of damages should not be excluded. He explained that he did not have that information at the time initial disclosures were due, that his counsel had been ill earlier in the year, and he cited certain cases that he believed supported his position precluding exclusion. This Court inquired as to why Johnson had not raised these issues in his papers. Johnson's counsel responded he had a small firm, was running out of time to respond to defendants' motion, and chose to rely on his argument that defendants failed to meet and confer, instead of raising substantive arguments. When prompted, Johnson admitted that it was not until forty-eight hours prior to the hearing that he started researching cases supporting his position. This court voiced its displeasure with Johnson's lack of preparation and told his counsel that it expected better. In the end, this Court allowed Johnson to supplement the record with the cases and arguments he relied upon during oral argument. This Court also allowed defendants to respond to Johnson's supplement and argue whether this Court should consider Johnson's newly raised arguments. The crux of Johnson's supplement is that he did not have the documents to disclose the damage computation at the time initial disclosures were due. He explained that he provided damages information as well as the remaining responses to defendants' discovery requests on March 31, 2020—“well before the close of discovery.” ECF No. 77 at 16. Johnson claims that, based on the authorities he relied upon in his supplement, his belated disclosure was substantially justified and harmless because it was made before the close of discovery and because no trial date had yet been set. In addition to renewing some of their previous arguments, defendants argue in their supplement that the Court should not consider Johnson's untimely arguments. Ultimately, they argue that Johnson has shown neither substantial justification nor harmlessness and that damage evidence should be excluded. II. Discussion. A. Preliminary matters. Defendants raise valid arguments for why this Court should not consider Johnson's untimely arguments. Still, the Court finds there are good reasons to consider them: the sanctions sought are onerous, fairness encourages decisions based on the merits, and a proper analysis as to whether there is “substantial justification” or “harmlessness” favors weighing Johnson's proffered information. Further, defendants were given the opportunity to respond, in writing, to Johnson's arguments. As a result, this Court will exercise its discretion to consider on the merits an argument that would otherwise have been waived. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 926 (9th Cir. 1988) (district court's decision whether to consider an untimely argument is reviewed for abuse of discretion).[4] B. Meet and confer. Defendants moved to exclude evidence of Johnson's damages under Rule 37(c) because Johnson failed to make disclosures required by Rules 26(a)(1)(A)(ii)–(iii). The Ninth Circuit has made clear that Rule 37(c) does not contain a meet-and-confer requirement. Hoffman v. Construction Protective Services, Inc., 541 F.3d 1175, 1179 (9th Cir. 2008). In Hoffman, the Ninth Circuit noted that California's local rules required a meet and confer prior to filing motions relating to discovery. Id. It concluded, however, that motions for sanctions are not “motions relating to discovery.” Id. Nevada's Local Rules contain a meet-and-confer requirement analogous to California's. See LR 26-7(c). And like in Hoffman, Nevada's meet-and-confer requirement applies to “discovery motions”—not to motions for sanctions under Rule 37. Further, the Ninth Circuit has explained that if a local rule required a conference prior to filing a motion under Rule 37(c), it would be unenforceable. Hoffman, 541 F.3d at 1179. As a result, given that defendants filed the underlying motion pursuant to Rule 37(c), no meet and confer was required. Therefore, the Court will deny Johnson's motion to strike. C. Rule 37 sanctions. Rule 26 requires parties to provide initial disclosures to the opposing parties without awaiting a discovery request. FED. R. CIV. P. 26(a)(1)(A). These disclosures must include a computation of each category of damages claimed by the disclosing party. FED. R. CIV. P. 26(a)(1)(A)(iii). Rule 26's disclosures requirement accelerates the exchange of information and assists the parties in focusing and prioritizing their organization of discovery. See R&R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1246 (9th Cir. 2012). Courts recognize that a “computation of damages may not need to be detailed early in the case before all relevant documents or evidence has been obtained by the plaintiff.” LT Game Int'l Ltd. v. Shuffle Master, Inc., No. 2:12-cv-01216-GMN, 2013 WL 321659, *6 (D. Nev. Jan. 28, 2013)). But a party's initial disclosures should provide “the best information then available to it concerning that claim, however limited and potentially changing it may be.” MOORE'S FEDERAL PRACTICE, § 26.22 [4][c][i] (3d ed. 2016). In addition, Rule 26(e)(1) requires a party making initial disclosures to supplement or correct those disclosures in a timely manner. FED. R. CIV. P. 26(e). When a defendant believes that a plaintiff has failed to timely comply with Rule 26's disclosure requirements, that defendant may move for sanctions under Rule 37(c). FED. R. CIV. P. 37(c). Rule 37 “gives teeth” to Rule 26(e)'s disclosure requirements. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The party requesting discovery sanctions bears the initial burden of establishing that the opposing party failed to comply with the disclosure requirements. Silvgani v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 241–42 (D. Nev. 2017). If the movant meets its burden, the court must then, using its discretion, determine whether the failure to comply with the initial disclosure requirements was either substantially justified or harmless. Id. The burden is on the party facing sanctions to show substantial justification or harmlessness. Id. Even if the party facing sanctions fails to establish substantial justification or harmlessness, exclusion sanctions are not required. Jackson v. United Artists Theatre Circuit, Inc., 278 F.R.D. 586, 594 (D. Nev. 2011). Instead, Rule 37(c) permits the court to impose other sanctions in addition to or instead of exclusion sanctions, including payment of attorneys' fees, informing the jury of the party's failure, and “other appropriate sanctions.” FED. R. CIV. P. 37(c)(1)(A)-(C). When deciding whether to impose exclusion sanctions, courts look at various factors, including: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the other parties; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less-drastic sanctions. Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). Under the fifth factor, in assessing whether less-drastic sanctions are available the court considers whether it has previously issued or considered lesser sanctions and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions. Id. This “test” is not mechanical. It provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow. Id. When an exclusion sanction is equivalent to dismissing a claim, the court must also consider whether the non-compliance involved willfulness, fault, or bad faith. R&R Sails, Inc., 673 F.3d at 1247. The Ninth Circuit has noted that district courts are entrusted with wide latitude in exercising their discretion to impose Rule 37(c) sanctions. See, e.g., Yeti by Molly, Ltd., 259 F.3d at 1106. Exclusion is a harsh sanction and should be imposed only in rare instances. Silvgani, 320 F.R.D. at 243. Absent a showing of bad faith or misconduct, courts are wary of imposing exclusion sanctions unless the movant can demonstrate a significant possibility of prejudice as a result of the untimely disclosure. Id. Further, while courts are more likely to exclude damages evidence when a party first discloses its computation of damages shortly before trial or substantially after discovery has closed, courts are hesitant to impose exclusion sanctions even in cases where the disclosure of damages is very belated. Jones v. Wal-Mart Stores, Inc., No. 2:15-cv-1454-LDF-GWF, 2016 WL 1248707, at *7 (D. Nev. Mar. 28, 2016). In short, courts have a strong preference for deciding cases on the merits whenever reasonably possible. See, e.g., Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). Here, defendants met their initial burden of establishing that Johnson failed to comply with Rule 26's disclosure requirements. Defendants represent that initial disclosures were provided on November 18, 2019, without a computation of damages or medical documents. ECF No. 66 at 1. Johnson does not contest that representation. ECF Nos. 69 and 77. In fact, Johnson admits he did not provide this information to the defense until March 31, 2020. ECF No. 77 at 16. Johnson has not met his burden of showing that his conduct was substantially justified. The fact that he may have not had the information available at the time initial disclosures were due is not a justification, given the facts of this case. First, the injuries took place over three years prior to the time initial disclosures were due. Even though Johnson may not have had exact figures to provide—which is questionable given the date of the injury—the rules require that he provide his best estimate, even if he later needs to revise those figures. Instead, Johnson provided no information. Johnson also failed to respond in a timely manner to requests for productions and interrogatories, which could have provided defendants with the information they sought. As to Johnson's duty to supplement, he first provided damages information to defendants 16 days before the close of discovery. This is hardly a timely supplement under Rule 26(e)(1)(A). While Johnson's counsel represents that he has a small firm and that he was ill in early January (and later on that month), there is no justification—leave alone substantial justification—for waiting until March 31, 2020, to provide information that, even if not available at the time of initial disclosures, should have been produced shortly thereafter considering the injury took place in 2016. Johnson also failed to meet his burden of establishing that his conduct was harmless. At the time that defendants filed the instant motion, expert disclosures deadlines were around the corner. Those have now passed and defendants were unable to retain any experts. Defendants had no information to provide any potential expert and nor did they know whether other kinds of experts would be necessary in the case. This has unquestionably prejudiced defendants. Discovery closed on April 15, 2020; this left defendants with 15 days to determine what other information they needed to seek, based on Johnson's claimed damages and responses to defendants' discovery requests. Johnson's conduct is not harmless, especially considering he seeks $1.5 million dollars in damages. The two main cases that Johnson relies on, Allstate Ins. Co. v. Nassiri, No. 2:08-cv-00369-JCM-GWF, 2010 WL 5248111 (D. Nev. 2010), and Jackson v. United Artist Theatre, 278 F.R.D. 586, 594 (D. Nev. 2011), are distinguishable. Nassiri involved a case in which the plaintiff failed to disclose a damages computation with his initial disclosures. Nassiri, 2011 WL 2977127 at *6. The court found that failure to provide a timely computation of damages was harmless in that case for several reasons. First, the opposing party could glean the extent of plaintiff's damages from the complaint, which included a detailed account of medical and chiropractic treatment, and specific descriptions of the diagnoses and treatment. Id. at *5. Second, the parties had engaged in previous settlement negotiations, which requires a discussion of damages. Id. The complaint in this case, while stating that Johnson had a broken jaw and received several surgeries, lacks the kind of detail present in Nassiri. See ECF No. 1. There is no indication that the parties engaged in settlement negotiations or that the defense was aware of the amount of damages claimed by Johnson prior to March 31, 2020. Importantly, unlike the circumstances here, the case in Nassiri had been stayed for months at a time, and, ultimately, plaintiff supplemented his disclosures with a computation of damages before the deadline for expert disclosures lapsed. Thus, the defense in Nassiri did not suffer the kind of prejudice defendants have suffered here. Jackson also involved a plaintiff's failure to provide a computation of damages in his initial disclosures. In that case, the court found the defense suffered only little harm because it had been aware Plaintiff was seeking close to $1 million dollars in damages from the time he filed the removal petition. Jackson, 278 F.R.D. at 594–95. In addition, the plaintiffs' initial disclosures and answers to interrogatories identified almost all the medical providers who allegedly provided medical care or treatment for her injuries. Id. Lastly, the defense was able to obtain medical records needed to depose plaintiff's physicians and to provide records to their experts for review in preparing their opinions. Id. at 595. As discussed earlier, here the defense did not learn Johnson was claiming $1.5 million dollars in damages, and nor did they have responses to their discovery requests, until 16 days prior to the close of discovery. These belated disclosures and responses hindered defendants' ability to fully propound additional discovery. Further, unlike the defense in Jackson, the defense here had nothing to turn over to any potential expert and, in any event, did not retain any. Expert disclosure deadlines have passed. In short, unlike the plaintiff in Jackson, Johnson here cannot demonstrate harmlessness. Applying the factors delineated in Conn. Gen. Life Ins. Co. to this case, the first three factors clearly favor defendants while the last two favor Johnson. The public interest in the expeditious resolution of cases is best served by precluding evidence of damages. The Court's interest in managing its docket is also best served by precluding evidence of damages: Johnson's conduct has led to unnecessary litigation which has nothing to do with the merits of this case and has interfered with this Court's ability to efficiently manage its docket in a manner fair to all parties with pending cases. As discussed, Johnson's conduct has prejudiced the defense. However, turning to the final two factors, courts always favor the disposition of cases on their merits. Here, exclusion of damages would be tantamount to dismissing the negligence claim and would severely limit the recoverable amount of compensatory damages as to the other claims.[5] As a result, precluding the introduction of this evidence would be particularly harsh. Further, up to this point, Johnson has not been previously warned that his failure to comply with discovery may result in claim-dispositive sanctions, and nor has this Court entered any other sanctions against Johnson. Let this serve as a warning to Johnson: this Court is fully prepared to take more drastic measures should he continue his recalcitrant behavior. This Court is troubled by what could amount to a pattern of failing to properly prosecute a case. Johnson's damages evidence was turned over almost 4 months after it was due and 15 days prior to the close of discovery, despite the fact that the defense specifically requested it earlier and accommodated Johnson's request for additional time. As mentioned, courts are more likely to exclude damages evidence when a party first discloses its computation of damages shortly before trial or substantially after discovery has closed. Here, no trial date has been set and Johnson disclosed the information within the discovery period. The prejudice to the defense can be cured with the extension of certain deadlines, which will allow defendants to retain experts if deemed appropriate and propound additional discovery based on the information received on March 31, 2020. Therefore, in its discretion, this Court finds that lesser sanctions are appropriate in this case. Instead of precluding the evidence of damages, Johnson's counsel—not Johnson himself—will be required to pay reasonable attorneys' fees and costs to the defense for drafting the underlying motion, reply, and supplement, and for preparation for oral argument on April 2, 2020. For reasons already mentioned, this Court finds there is no substantial justification for Johnson's failures to comply with court rules and the award of expenses to defendants is just. III. Conclusion. IT IS THEREFORE ORDERED that defendants' motion (ECF No. 66) is granted in part and denied in part. Plaintiff will not be precluded from introducing evidence of damages but plaintiff's counsel will be sanctioned by way of paying the defense reasonable attorneys' fees for the briefing of defendants' motion to exclude evidence of damages, reply, supplement, and for oral argument giving rise to this order. IT IS FURTEHR ORDERED that parties are to meet and confer on the issue of reasonable attorneys' fees. Defendants are free to file a motion for fees in the event the parties cannot come to an agreement. IT IS FURTHER ORDERED that Plaintiff's motion to strike (ECF No. 69) is denied. IT IS FURTHER ORDERED discovery deadlines are re-set as follows: discovery cut-off is July 15, 2020; Initial expert disclosures are due May 15, 2020; rebuttal expert disclosures are due June 15, 2020; dispositive motions are due August 15, 2020; a pre-trial order is due September 15, 2020, but if dispositive motions are filed, then the deadline is suspended until 30 days following a decision on those motions. Footnotes [1] ECF Nos. 71 and 72 are a single document docketed twice by the Clerk of Court in accordance with the Local Rules. See LR IC 2-2(b). [2] Defendants filed a separate motion requesting the court to deem admitted the request for admissions to which Plaintiff failed an answer. ECF No. 67. This Court has separately ruled on that issue. ECF No. 79. [3] While not necessarily justifying his failure to comply with discovery requests, Johnson's counsel's declaration explains that counsel was ill for an entire week starting January 6, 2020 as well as later that month. ECF No. 69-1. Although it is not too clear, counsel seems to suggest that he may have neglected to calendar the new January 27, 2020 deadline to comply with discovery requests. Id. [4] The defense also argues that Johnson's motion to strike/response was filed one day late and that the court should grant defendants' request as unopposed under LR 7-2(d). ECF No. 71 at 7. This is a moot issue given this Court is considering a supplement which reiterates some of the same arguments made in the motions to strike/ response filed at ECF No 69. [5] To establish an assault claim, a plaintiff must show that the actor (1) intended to cause harmful or offensive physical contact, and (2) the victim was put in apprehension of such contact. Switzer v. Rivera, 174 F. Supp. 2d 1097, 1109 (citing Restatement (Second) of Torts, § 21 (1965)). To establish a battery claim, a plaintiff must show that the actor (1) intended to cause harmful or offensive contact, and (2) such contact did occur. Id. §§ 13, 18. To state a claim for negligence, a plaintiff must plead: (1) the existence of a duty of care; (2) breach of that duty; (3) legal causation; and (4) damages. Prescott v. Slide Fire Solutions, LP, 410 F. Supp.3d 1123, 1140 (D. Nev. 2019).