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Eighth Circuit Disallows New Evidence from FLSA Plaintiffs, First Proffered in their Summary Judgment Opposition Papers, and Grants Summary Judgment

ABSTRACT: When a plaintiff, in his summary judgment opposition papers, attempts to first introduce information that should have been part of his Rule 26 disclosures (or supplements to them), defendant should move to strike.

In Carmody v. Kansas City Board of Police Commissioners, - F.3d -, 2013 U.S. App. LEXIS 8128 (8th Cir. Apr. 23, 2013), Plaintiff police officers had filed a complaint under the Fair Labor Standards Act, alleging that the Kansas City Police Department’s “flextime” pay system for its officers was improperly administered, resulting in under-payment of statutorily required overtime compensation by the Department.

The city had issued interrogatories to plaintiffs about the particulars of their claims, and, in response, plaintiffs confirmed the flextime practice that was the subject of their complaint, and described occurrences when it was used; but did not suggest the number of uncompensated hours or the amount of money owed. Plaintiffs stated that they would need access to department documents, such as daily activity sheets and other records, in order to formulate more accurate responses.

The city furnished nearly 13,000 activity sheets, after action reports and other documents to plaintiffs by January 27, 2012, and another 165 documents by February 16th. The city deposed the officers between February 21 and March 2, 2012, and discovery closed on March 2nd. Plaintiffs did not update their Rule 26 disclosures, or their discovery responses.

On March 30, 2012, the city moved for summary judgment, asserting among other things that the officers could not, as a matter of law, satisfy their evidentiary burden. The officers attempted to defeat summary judgment by attaching affidavits to their response. These affidavits contained precise estimations, week by week, of hours owed. The city moved to strike the affidavits, and the federal district court struck the officers’ affidavits and granted the city’s motion for summary judgment, deciding the officers unjustifiably failed to comply with their discovery obligations and that, without the affidavits, the officers failed to satisfy their burden of production by showing “the amount and extent of their alleged overtime work.”

The Eighth Circuit affirmed, emphasizing that the Federal Rule of Civil Procedure 26(a)(1)(A)(iii) requires parties to make initial disclosures, including a computation of damages, which under Rule 26(e)(1)(A) must be supplemented when new information comes to light. The district court has discretion under Rule 37(c)(1) to apply sanctions against a party who has failed to satisfy initial or supplemental disclosure requirements; for example, excluding the evidence or testimony entirely.

Thus, the Court concluded that the district court had not abused its discretion by barring plaintiffs’ affidavits on the grounds they had “unjustifiably failed to comply with Rule 26(e)(1)(A),” and that without any admissible evidence from plaintiffs showing “the amount and extent of their alleged overtime work,” summary judgment was properly granted.

The Carmody decision should serve as a reminder to employers of an important part of their summary judgment “toolkit.” If the plaintiffs have been vague about the exact nature of their claims and how they have been damaged, and they attempt for the first time to present new information in their papers opposing summary judgment, the defendant should be ready to pounce. Information that should have been but was not made part of plaintiffs’ Rule 26 disclosures, or supplements thereto, may be excludable in a motion to strike, and this may make the difference between defendant winning or losing its summary judgment motion.