DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
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MARGUERITE A. TWEED,
5
5
Plaintiff,
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2004-CV-0142
v.
5
5
METRO MOTORS S.C., INC.,
5
5
Defendant.
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__________________________________________5
TO: 
Natalie Nelson Tang How, Esq.
Johanna Harrington, Esq.
ORDER REGARDING DEFENDANT’S MOTION FOR DISCOVERY SANCTIONS
THIS MATTER is before the Court upon Defendant’s Motion for Discovery
Sanctions (Docket No. 52).  Plaintiff filed an opposition, to which Defendant filed a reply.
Pursuant to Federal Rule of Civil Procedure 37, Defendant requests that the Court
(1) exclude from consideration all of Plaintiff’s expert witnesses and their associated
testimony, (2) exclude from consideration all of Plaintiff’s untimely produced documentary
evidence, and (3) award it the costs and attorney’s fees associated with Plaintiff’s discovery
failure(s).  Defendant also makes a fourth request, pursuant to Local Rule 37.3, that the
Court award it the costs and attorney’s fees associated with the preparation of its portion
of the proposed joint stipulation required under Local Rule 37.2.
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Tweed v. Metro Motors
2004-CV-0142
Order Regarding Defendant’s Motion For Discovery Sanctions
Page 2
According to the scheduling order of August 25, 2006 (Docket No. 26), Plaintiff’s
experts were to be named and copies of their opinions provided by October 31, 2006.
Experts’ depositions were to have been completed by February 15, 2007.  Trial, originally
scheduled for June 4, 2007, has been continued to August 13, 2007.  Plaintiff’s opposition
claims that she has only one expert witness, Richard Moore, and that her corresponding
expert report is to be expected shortly; however, Plaintiff has still not filed an expert report
as of the date of this order.  Plaintiff previously named a second expert witness, Chester
Copemann, but, as stated in Plaintiff’s opposition, Plaintiff subsequently named the second
expert witness as a fact witness in her Witness List (Docket No. 54).  The Court will address
Defendant’s four requests in the order presented above.
When considering motions to exclude, the Court weighs the factors outlined in
Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894 (3d Cir. 1977), overruled on
other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656
(1987).  The four Meyers factors are:
(1) the prejudice or surprise in fact of the party against whom the excluded
witnesses would have testified, (2) the ability of that party to cure the
prejudice, (3) the extent to which waiver of the rule against calling unlisted
witnesses would disrupt the orderly and efficient trial of the case or of other
cases in the court, and (4) bad faith or willfulness in failing to comply with
the court’s order.
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Tweed v. Metro Motors
2004-CV-0142
Order Regarding Defendant’s Motion For Discovery Sanctions
Page 3
Meyers, 559 F.2d at 904-05.
With trial scheduled less than a month from the date of this order, Defendant would
suffer prejudice if the Court were to allow Plaintiff to submit an expert report at this late
juncture and call that expert to testify at trial.  As the trial date is fast approaching,
Defendant would hardly be able to cure the effects of such prejudice.  Allowing Plaintiff
to submit an expert report, now, would disrupt the orderly and efficient trial of the case,
since the case would have to be continued again in order to accommodate full and fair
discovery.  Plaintiff does not seem to have demonstrated any bad faith or willfulness in
failing to comply with the August 25, 2006 scheduling order.  However, the first three
Meyers factors all weigh in favor of exclusion and, combined, they outweigh the fourth
factor.  Therefore, the Court, having conducted a Meyers analysis, will grant Defendant’s
first request, to exclude Plaintiff’s expert witnesses and associated testimony.  Richard
Moore may not testify; Chester Copemann may not provide any expert testimony, and
therefore, he may not provide any testimony outside of his capacity as a fact witness.
As Plaintiff has not untimely produced any documentary evidence at this point, the
Court will deny Defendant’s second request as not ripe.
Regarding Defendant’s third request, for costs and attorney’s fees associated with
Plaintiff’s discovery failures, Federal Rule of Civil Procedure 37 provides, in pertinent part:
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Tweed v. Metro Motors
2004-CV-0142
Order Regarding Defendant’s Motion For Discovery Sanctions
Page 4
[I]f a party fails to obey [a scheduling order], the court in which the action is
pending may make such orders in regard to the failure as are just . . . .  In lieu
of any of the [suggested] orders or in addition thereto, the court shall require
the party failing to obey the order or the attorney advising that party or both
to pay the reasonable expenses, including attorney’s fees, caused by the
failure, unless the court finds that the failure was substantially justified or
that other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(b)(2).
Plaintiff failed to abide by the scheduling order of August 25, 2006.  The Court does
not find either that Plaintiff’s discovery failure(s) were substantially justified or that other
circumstances make an award of expenses unjust.  Therefore, the Court is bound by Rule
37 to order Plaintiff to reimburse Defendant for the reasonable expenses, including
attorney’s fees, caused by Plaintiff’s discovery failure(s).
Finally, the Court turns to Defendant’s fourth request, for an award of costs and
attorney’s fees associated with the preparation of its portion of the proposed joint
stipulation required under Local Rule 37.2.  Defendant notified the Court that it had served
Plaintiff with Defendant’s portion of the proposed joint stipulation (Docket No. 48), but
Defendant never filed said joint stipulation with the Court.  Instead, Defendant filed the
present motion, pursuant to Local Rule 37.2(d), with a declaration from Defendant’s
counsel establishing that opposing counsel thwarted the filing of a joint stipulation.
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Tweed v. Metro Motors
2004-CV-0142
Order Regarding Defendant’s Motion For Discovery Sanctions
Page 5
Local Rule 37.3 states: “The failure of any counsel to comply with or cooperate in the
foregoing procedures[, a Local Rule 37.1 conference or a Local Rule 37.2 preparation of a
joint stipulation,] may result in the imposition of sanctions.”  LRCi 37.3.  Defendant has
established that Plaintiff’s counsel failed to comply with the preparation of the proposed
joint stipulation.  Therefore, the Court will grant Defendant’s fourth request and order
Plaintiff to reimburse Defendant for the reasonable expenses, including attorney’s fees,
associated with the preparation of Defendant’s portion of the proposed joint stipulation.
Accordingly, it is now hereby ORDERED:
1.
Defendant’s Motion For Discovery Sanctions (Docket No. 52) is GRANTED
IN PART and DENIED IN PART.
2.
Plaintiff’s expert witnesses and associated testimony are excluded from
consideration.  Richard Moore is precluded from testifying.  Plaintiff may call
Chester Copemann as a fact witness only.  He is precluded from providing
any expert testimony; that is, he may not provide any testimony outside of
his capacity as a fact witness.
3.
Plaintiff shall pay Defendant its reasonable expenses, including attorney’s
fees, associated with the preparation and filing of the said motion for
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Tweed v. Metro Motors
2004-CV-0142
Order Regarding Defendant’s Motion For Discovery Sanctions
Page 6
sanctions and the preparation of its portion of the proposed joint discovery
stipulation.
4.
Counsel for Defendant shall file, within five (5) days from the date of entry
of this order, an affirmation or other certification of Defendant’s costs and
attorney’s fees associated with the preparation and filing of Defendant’s
Motion For Discovery Sanctions and Defendant’s portion of the proposed
joint discovery stipulation.
ENTER:
Dated: July 17, 2007
                                /s/                                   
GEORGE W. CANNON, JR.
U.S. MAGISTRATE JUDGE
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