Philip Petrone v. -- 2 of 21 -- -3- Werner Enterprises, Inc., doing business as Werner Trucking

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-1884
___________________________
Philip Petrone; Stewart Fisher; Jasbir Singh; Brian Pankz, on behalf of themselves
and all those similarly situated; Jason Dewayne Gunn; Ahmad Abdinasir; Adam F.
Akhalu; Latoshia Denise Anderson; Derek C. Anglero; Alan Blane Arthur;
Christopher Ayala; Timothy McCabe Bailey; Csaba G. Barabas; Henry Barentine;
Joseph E. Barker; Diego Barraza; Richard Clair Bash; Terry Lee Batko; Elizabeth
Baumgartel; Jeremy Alfred Bennett; Gary M. Bernstine; Stacy Lynn Bluebird;
Rafarel K. Boadu; Damien Marcus Boyer; Christina Bradley; Elias Bratcher; Justin
Bristol; Karl Matthew Emerson; Scott A. Larrow; Steve N. Neely; Tonya
McDonald; Micheal Anthony Brooks; Nicholas Brown; Olivia Bryant; Lawrence
F. Bunkowski; David Burgess; Steven Dale Burgess; Justin Burkholder; Richard
Calvert; Johnny Carter; Brett Carty; Joel Castaneda-Dominguez; Lawrence
Edward Cecil; Issac Houston Chase; Victor Chavarria; Paul Cleaver; Thomas
Ricky Coker; Kenya Dyone Collins; Michael Ray Combs; Kenneth Ray Cook;
Larry Nathaniel Clinton, Jr.; Kenneth B. Cloud; Richard Copley; Howard Corley,
Jr.; Jeffrey G. Crissman; Jimmy Carl Criswell; Thomas Cross; Francisco Cruz;
James Michael Cullity; Kabik Daam; Wilson M. Dagaye; David Davila; Michael
Scott Davis; Jermey Leonard Dawson; Perry A. Deeke; David Andrew Delisi;
Louis James Dietry; John Michael Doss; Steven Dubinsky; Luis Duran Saldivar;
Carl Eberhardt; Harcourt P. Edgecombe; Douglas Allen Elbon; Terry Lee Elkins;
Paul Terry Elliott, Jr.; Mark C. Eure; Seth Fezatte; Roscoe W. Forman; Anthony
Frank; Nathaniel Anthony Frazier, Jr.; Ernest G. Fulp, Jr.; Peter Liyayi Gaitano;
Jose Garcia-Gonzalez; JoAnna Hancock Geddings; Clair Henry Gilmore, Jr.; Fred
Glass, III; John Christopher Glover; Jean Marie Gogolin; Steven Scott Goodman;
Tamaro R. Graham; Eric Franklin Green; August William Grow; Gary Eugene
Gude; Debra Paula Gugle; Fardrel J. Guice; Shaun Phillip Guthrie; Randy
Halcomb; Kathleen M. Hallmark; D’Andre LeMare Handy; John Robert Hardin;
Robert William Herrmann; Gail Marie Hess; Annette Fay Holder; Charles Roy
Honacher; Michael Hossler; Robert Edward Howes; Brett Allen Huckstep; Byron
Huffin; Loman Hutchings; Delandos Jackson; Morris Jacobs, Jr.; Daniel Jefferson;
Ciera Lillian Jenkins; Darrell Wayne Johnson; David Allen Jones; Michael T.
Jones; Willie Lee Jones, Sr.; Michael A. Karpouskas; Behzad Kazemiseresht; Gary
Ward Kennerly; Kristopher Kibby; Ronald L. Kilpatrick; Nathan Phillip Koehler;

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Michael Kovacsi; Timothy Michael Kyser; Martha L. Lantz; Alonza David Lee;
Guertho Lemorin; Darran LaVan Lewis; Joshua Brooke Lipham; Russell E.
Lourwood; Paul Lowe; Stacey Marie Lowe; Krystel Lucas; Kevin L. Maehrer;
Jonathan Michael Magnuson; James Mancuso; Jeremy L. Maness; Thomas C.
Marchione; William Clyde Marks; David Jacob Marrs; Norrek McCarty; Matthew
Jay McDaniel; David Andrew McDevitt; Samuel Ray McMillian; Doug Anthony
McSwain; Jack Dean Michael; Steven Richard Milstead; Robert John Monroe;
Carl Montgomery; Gary C. Montgomery; Debra A. Moore; Michael W. Moore;
Clell Morgan, II; John Anthony Morris; Michael Wayne Murray; Lorene
Musabelli; Nathan Joel Nadell; Saleh M. Nasser; Chad Michael Newsome; Aaron
Jermain Nixon; Luis S. Ogando Colon; Peter B. Oh; Marcus Oscar Orr;
Christopher Otto; Donald Wade Owens; Charles D. Paglicco, Jr.; James G. Paige,
Jr.; Matthew Pereira; Michael Andrew Pertle; William James Petty, Jr.; Jarrod
Scott Pitts; James Matthew Potts; Bryan James Pratt; David Frank Pressley; John
Jason Pryor; Joseph Pusateri; Noel Ramirez; Steven M. Ramsey; John Manson
Ray; Heath Daniel Reams; Jasper U. Reaves; John Reddick; Benjamin Reno;
Oscar Reyes; Brandon Richard; Gregory Scott Vian Risdon; Clarence Robinson;
Rayo Emmiito Robinson; Barney Robson; Brandon Roldan; William Thomas
Roop; Curtis Ryals; Nickilas Sams; Franklin L. Schmidt, III; Barbara Ann Scoby;
Joseph Franklin Scott; Robert A. Scott, III; Vernon B. Seaborn, Jr.; Michael A.
Sederquist; Phillip Wayne Senecal; Guillermo Serrano-Lopez; Pablo A. Serrano-
Lopez; Charles Shackelford; Katherine P. Shoemaker; Howard Arthur Singer;
Harpal Singh; Dennis Dean Smith; Kyle Anthony Smith; Randy Shane Smith;
Timothy Leonardo Smith; Quitz Snider; Richard Adam Solomon; Roman Stelter;
Winston Stewart; Shawn Michael Stone; Derick Lynn Sullins; James Julian Alan
Surrency; Tim Swadley; George A. Tapia; Shannon Leigh Terry; Noulieng
Thisanakone; Dan Vilaythong; Erick Thompkins; Brennon Thompson; Stephen
Loyd Tillerson; David Wright Tillman; Kevin Toll; Richard F. Torrisi; Jeffrey S.
Torsrud; Gregory D. Trent; Jose Valentine; Luanne Santoro Voght; Wayne
Woodrow Waite; David C. Waldron; Marisa Sabrinda Walker; Robert Wallace;
Lance Wallace; Patrick Mark Walters; Steven Anthony Wasson; Joseph Kane
Weatherford; Derrick Earl Webb; Stacey Webb; Trey Anthony Webber; Keeley
Wheeler, Jr.; Johnny Keith White; Kacy Fonteze Williams; Tiffany Nicole
Williams; Steven M. Willis; Reia Winn; Marlon Dewayne Witcham; Devon
Terelle Wofford; William Wood; Mark Antonio Woods; Warren R. Wright;
Carisma Concetta Weiss; Robert Lee Plunkett
Plaintiffs - Appellants
v.

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Werner Enterprises, Inc., doing business as Werner Trucking; Drivers
Management, LLC
Defendants - Appellees
------------------------------
Philip Petrone; Brian Pankz, on behalf of himself and all those similarly situated;
Stewart Fisher, on behalf of himself and all those similarly situated; Jasbir Singh,
on behalf of himself and all those similarly situated
Plaintiffs - Appellants
v.
Werner Enterprises, Inc., doing business as Werner Trucking; Drivers
Management, LLC
Defendants - Appellees
___________________________
No. 23-2216
___________________________
Philip Petrone; Stewart Fisher; Jasbir Singh; Brian Pankz; Jason Dewayne Gunn;
Ahmad Abdinasir; Adam F. Akhalu; Latoshia Denise Anderson; Derek C.
Anglero; Alan Blane Arthur; Christopher Ayala; Timothy McCabe Bailey; Csaba
G. Barabas; Henry Barentine; Joseph E. Barker; Diego Barraza; Richard Clair
Bash; Terry Lee Batko; Elizabeth Baumgartel; Jeremy Alfred Bennett; Gary M.
Bernstine; Stacy Lynn Bluebird; Rafarel K. Boadu; Damien Marcus Boyer;
Christina Bradley; Elias Bratcher; Justin Bristol; Karl Matthew Emerson; Scott A.
Larrow; Steve N. Neely; Tonya McDonald; Micheal Anthony Brooks; Nicholas
Brown; Olivia Bryant; Lawrence F. Bunkowski; David Burgess; Steven Dale
Burgess; Justin Burkholder; Richard Calvert; Johnny Carter; Brett Carty; Joel
Castaneda-Dominguez; Lawrence Edward Cecil; Issac Houston Chase; Victor
Chavarria; Paul Cleaver; Larry Nathaniel Clinton, Jr.; Kenneth B. Cloud; Thomas
Ricky Coker; Kenya Dyone Collins; Michael Ray Combs; Kenneth Ray Cook;
Richard Copley; Howard Corley, Jr.; Jeffrey G. Crissman; Jimmy Carl Criswell;
Thomas Cross; Francisco Cruz; James Michael Cullity; Kabik Daam; Wilson M.

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Dagaye; David Davila; Michael Scott Davis; Jermey Leonard Dawson; Perry A.
Deeke; David Andrew Delisi; Louis James Dietry; John Michael Doss; Steven
Dubinsky; Luis Duran Saldivar; Carl Eberhardt; Harcourt P. Edgecombe; Douglas
Allen Elbon; Terry Lee Elkins; Paul Terry Elliott, Jr.; Mark C. Eure; Seth Fezatte;
Roscoe W. Forman; Anthony Frank; Nathaniel Anthony Frazier, Jr.; Ernest G.
Fulp, Jr.; Peter Liyayi Gaitano; Jose Garcia-Gonzalez; JoAnna Hancock Geddings;
Clair Henry Gilmore, Jr.; Fred Glass, III; John Christopher Glover; Jean Marie
Gogolin; Steven Scott Goodman; Tamaro R. Graham; Eric Franklin Green; August
William Grow; Gary Eugene Gude; Debra Paula Gugle; Fardrel J. Guice; Shaun
Phillip Guthrie; Randy Halcomb; Kathleen M. Hallmark; D’Andre LeMare Handy;
John Robert Hardin; Robert William Herrmann; Gail Marie Hess; Annette Fay
Holder; Charles Roy Honacher; Michael Hossler; Robert Edward Howes; Brett
Allen Huckstep; Byron Huffin; Loman Hutchings; Delandos Jackson; Morris
Jacobs, Jr.; Daniel Jefferson; Ciera Lillian Jenkins; Darrell Wayne Johnson; David
Allen Jones; Michael T. Jones; Willie Lee Jones, Sr.; Michael A. Karpouskas;
Behzad Kazemiseresht; Gary Ward Kennerly; Kristopher Kibby; Ronald L.
Kilpatrick; Nathan Phillip Koehler; Michael Kovacsi; Timothy Michael Kyser;
Martha L. Lantz; Alonza David Lee; Guertho Lemorin; Darran LaVan Lewis;
Joshua Brooke Lipham; Russell E. Lourwood; Paul Lowe; Stacey Marie Lowe;
Krystel Lucas; Kevin L. Maehrer; Jonathan Michael Magnuson; James Mancuso;
Jeremy L. Maness; Thomas C. Marchione; William Clyde Marks; David Jacob
Marrs; Norrek McCarty; Matthew Jay McDaniel; David Andrew McDevitt;
Samuel Ray McMillian; Doug Anthony McSwain; Jack Dean Michael; Steven
Richard Milstead; Robert John Monroe; Carl Montgomery; Gary C. Montgomery;
Debra A. Moore; Michael W. Moore; Clell Morgan, II; John Anthony Morris;
Michael Wayne Murray; Lorene Musabelli; Nathan Joel Nadell; Saleh M. Nasser;
Chad Michael Newsome; Aaron Jermain Nixon; Luis S. Ogando Colon; Peter B.
Oh; Marcus Oscar Orr; Christopher Otto; Donald Wade Owens; Charles D.
Paglicco, Jr.; James G. Paige, Jr.; Matthew Pereira; Michael Andrew Pertle;
William James Petty, Jr.; Jarrod Scott Pitts; Robert Lee Plunkett; James Matthew
Potts; Bryan James Pratt; David Frank Pressley; John Jason Pryor; Joseph Pusateri;
Noel Ramirez; Steven M. Ramsey; John Manson Ray; Heath Daniel Reams; Jasper
U. Reaves; John Reddick; Benjamin Reno; Oscar Reyes; Brandon Richard;
Gregory Scott Vian Risdon; Clarence Robinson; Rayo Emmiito Robinson; Barney
Robson; Brandon Roldan; William Thomas Roop; Curtis Ryals; Nickilas Sams;
Franklin L. Schmidt, III; Barbara Ann Scoby; Joseph Franklin Scott; Robert A.
Scott, III; Vernon B. Seaborn, Jr.; Michael A. Sederquist; Phillip Wayne Senecal;
Guillermo Serrano-Lopez; Pablo A. Serrano-Lopez; Charles Shackelford;
Katherine P. Shoemaker; Howard Arthur Singer; Harpal Singh; Dennis Dean
Smith; Kyle Anthony Smith; Randy Shane Smith; Timothy Leonardo Smith; Quitz

-- 4 of 21 --

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Snider; Richard Adam Solomon; Roman Stelter; Winston Stewart; Shawn Michael
Stone; Derick Lynn Sullins; James Julian Alan Surrency; Tim Swadley; George A.
Tapia; Shannon Leigh Terry; Noulieng Thisanakone; Dan Vilaythong; Erick
Thompkins; Brennon Thompson; Stephen Loyd Tillerson; David Wright Tillman;
Kevin Toll; Richard F. Torrisi; Jeffrey S. Torsrud; Gregory D. Trent; Jose
Valentine; Luanne Santoro Voght; Wayne Woodrow Waite; David C. Waldron;
Marisa Sabrinda Walker; Robert Wallace; Lance Wallace; Patrick Mark Walters;
Steven Anthony Wasson; Joseph Kane Weatherford; Derrick Earl Webb; Stacey
Webb; Trey Anthony Webber; Keeley Wheeler, Jr.; Johnny Keith White; Kacy
Fonteze Williams; Tiffany Nicole Williams; Steven M. Willis; Reia Winn; Marlon
Dewayne Witcham; Devon Terelle Wofford; William Wood; Mark Antonio
Woods; Warren R. Wright; Carisma Concetta Weiss
Plaintiffs - Appellees
v.
Werner Enterprises, Inc., doing business as Werner Trucking; Drivers
Management, LLC
Defendants - Appellants
------------------------------
Philip Petrone; Brian Pankz, on behalf of himself and all those similarly situated;
Stewart Fisher, on behalf of himself and all those similarly situated; Jasbir Singh,
on behalf of himself and all those similarly situated
Plaintiffs - Appellees
v.
Werner Enterprises, Inc., doing business as Werner Trucking; Drivers
Management, LLC
Defendants - Appellants
____________
Appeal from United States District Court
for the District of Nebraska - Omaha

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____________
Submitted: March 13, 2024
Filed: June 24, 2024
____________
Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
This case, a class action involving claims by commercial truck drivers that
they were not paid proper amounts while working for Werner Enterprises, Inc., and
Drivers Management, LLC, (collectively Defendants) returns to us a third time. In
the first appeal, we vacated a jury verdict in favor of Plaintiffs because the district
court improperly amended the scheduling order to allow Plaintiffs to submit an
expert report after the deadline. See Petrone v. Werner Enters., Inc. (Petrone I), 940
F.3d 425 (8th Cir. 2019). On remand, the district court entered judgment in favor of
Defendants. In the second appeal, we vacated the judgment and remanded to the
district court to conduct the requisite analysis regarding whether the expert report
should be excluded as a discovery sanction and whether the district court should
appoint an independent expert. See Petrone v. Werner Enters., Inc. (Petrone II), 42
F.4th 962 (8th Cir. 2022). On remand, the district court1 conducted this analysis and
concluded that exclusion of Plaintiffs’ expert report was the appropriate sanction for
its belated disclosure and that appointment of an independent expert was not
appropriate. It then entered judgment in favor of Defendants. Plaintiffs now appeal,
asserting that the district court erred in this analysis. Defendants cross-appeal,
asserting that Plaintiffs’ notice of appeal is untimely, requiring dismissal of the
appeal. Having jurisdiction under 28 U.S.C. § 1291, we reject Defendants’
contention on cross-appeal, and we affirm the judgment of the district court.
1 The Honorable Brian C. Buescher, United States District Judge for the
District of Nebraska.

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I.
The underlying facts of this class action and its procedural history have been
discussed at length in the earlier iterations of this case on appeal. As Petrone II
detailed:
Plaintiffs filed this action alleging violations of the Fair Labor
Standards Act (FLSA) and Nebraska law stemming from an eight-week
student-driver training program run by Defendants. Plaintiffs alleged
that they were not properly compensated for off-duty time spent on
short rest breaks and time spent resting in their trucks’ sleeper-berths.
After a three-day trial, the jury awarded Plaintiffs $779,127.00 on the
short-term break claims and found in favor of Defendants on the
sleeper-berth claims. Plaintiffs appealed, challenging various post-trial
rulings, while Defendants cross-appealed, challenging the district
court’s pre-trial rulings, specifically its ruling extending Plaintiffs’
deadline to disclose expert reports, which allowed Plaintiffs to submit
an otherwise untimely expert report.
As relevant here, Plaintiffs had previously timely submitted an
expert report, but after “Defendants’ deposition of Plaintiffs’ expert
‘reveal[ed] considerable flaws in the methodology [used by Plaintiffs’
expert] for computing the allegedly uncompensated break and
sleeper-berth time,’” Plaintiffs moved, pursuant to Rule 16(b) of the
Federal Rules of Civil Procedure, to modify the scheduling order to file
a supplemental expert report. Determining first that the belated expert
report was not a supplemental report and was more appropriately
considered a new expert report, the district court then concluded that
there was no good cause to amend the scheduling order to allow
disclosure of the new report, and the failure to timely file the report was
neither substantially justified nor harmless. . . . Nevertheless, the
district court noted that “Rule 1 of the Federal Rules of Civil Procedure
counsels against complete exclusion of the new information” because
it provides “that the rules ‘should be construed and administered to
secure the just, speedy, and inexpensive determination of every action
and proceeding’” and “indicate[s] a preference for determination of
cases on the merits.” Further, because “[t]he corrected information
[was] useful and necessary to the disposition of the case on the merits,”
the district court stated that it was “inclined to invoke the discretion

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granted by Rule 37(c) [of the Federal Rules of Civil Procedure] to
fashion a lesser sanction than exclusion.” The district court thus
granted Plaintiffs’ motion to extend the disclosure deadline and allowed
the new expert report to be timely submitted pursuant to the amended
scheduling order.
We resolved Defendants’ cross-appeal only, concluding that it
was dispositive to the resolution of both appeals. We determined that
the district court abused its discretion when it granted Plaintiffs’ Rule
16(b) motion to amend the scheduling order to extend the disclosure
deadline, pursuant to Rule 26(a) of the Federal Rules of Civil
Procedure, for expert reports without good cause. We concluded that
the district court erred in relying on Rules 1 and 37(c)(1) to extend the
deadline for expert disclosures because “by its terms, Rule 37(c)(1)
applies only when a party fails to comply with Rule 26(a) and then
seeks to use the information ‘on a motion, at a hearing, or at a trial[,]’”
and “Rule 37(c)(1) says nothing about its applicability when a court
considers a motion, pursuant to Rule 16(b), to amend a progression
order and extend the deadline for Rule 26 disclosures.” Further,
because “[t]he jury clearly relied on Plaintiffs’ expert’s opinion in
reaching its $779,127.00 damages award,” we could not “say that its
award would have been the same without the new information and,
therefore, the district court’s error was not harmless.” Thus, “we
vacat[ed] the judgment and remand[ed] the case to the district court for
proceedings consistent with [our] opinion.”
On remand, Plaintiffs moved for a new trial, asserting that, even
without the expert report, they could prove their damages through
individual pay and time records. Plaintiffs also sought, pursuant to Rule
37(c)(1), to admit the untimely expert report, asserting that our mandate
left the district court with the discretion to do so on remand. In the
alternative, Plaintiffs sought a court-appointed expert pursuant to Rule
706 of the Federal Rules of Evidence. Defendants filed a motion for
judgment on the mandate, asserting that the only possible outcome in
light of the mandate was dismissal with prejudice. The district court
denied Plaintiffs’ motion, granted Defendants’ motion, and dismissed
the case with prejudice. The district court concluded that the only
evidence of damages that Plaintiffs presented was based on the
improperly admitted new expert report, rejected Plaintiffs’ contention
that they could prove damages through a Rule 1006 of the Federal Rules

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of Evidence exhibit summarizing pay and time records for 55,000 class
members without expert testimony, and found that the discovery
deadlines had lapsed more than 6 years previously and there was not
good cause to amend the scheduling order to allow disclosure of the
new expert report. The district court also noted that “Plaintiffs have not
submitted a Rule 1006 exhibit, nor identified a witness who would
prepare it, nor have Defendants deposed this witness about the
preparation of the Rule 1006 exhibit.” In closing, the district court
stated, “Plaintiffs could not have proved damages but for the admission
of [the] untimely expert report. Therefore, the only proceeding
consistent with the opinion of the Court of Appeals is dismissal of this
action with prejudice.”
42 F.4th at 966-67 (third alteration added) (citations omitted). In resolving the
second appeal, we concluded:
[W]hile the district court properly determined that Plaintiffs could not
present evidence of damages through summary evidence pursuant to
Rule 1006, it failed to conduct an analysis pursuant to Rule 37(c)(1)
and failed to address Plaintiffs’ request for appointment of an expert
pursuant to Rule 706. These latter two points amount to an abuse of
discretion, which requires reversal and vacatur of the judgment.
Id. at 969. Following our remand order, the district court reopened Plaintiffs’ motion
for a new trial and ordered the parties to submit supplemental briefing regarding
whether Plaintiffs’ expert report should be excluded pursuant to Federal Rule of
Civil Procedure 37(c)(1) and whether an expert should be appointed pursuant to
Federal Rule of Evidence 706.
After the parties submitted additional briefing, the district court denied
Plaintiffs’ motion for a new trial, concluding that exclusion of Plaintiffs’ untimely
expert report was the appropriate sanction under Fed. R. Civ. P 37(c)(1), that the
appointment of an expert pursuant to Federal Rule of Evidence 706 was not
appropriate, and that Plaintiffs’ case must be dismissed with prejudice because they
could not prove damages without the expert testimony. With respect to the Federal
Rule of Civil Procedure 37(c)(1) analysis, the district court first stated that Rule 37

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provides sanctions for an untimely disclosure unless the untimely disclosure was
substantially justified or was harmless, before concluding that neither was true. The
district court determined that the untimely disclosure was not substantially justified
because Plaintiffs’ expert could have developed the proper methodology for the
expert report before the deadline and also found that the late disclosure was not
harmless because it required Defendants to adjust their trial strategy to defend
against Plaintiffs’ claims. The district court then determined that the proper sanction
under Federal Rule of Civil Procedure 37(c)(1) was exclusion of the untimely expert
report because “Plaintiffs’ effort to take advantage of Defendants’ diligence in
finding errors in the Plaintiffs’ expert’s original report and thereby imposing
additional costs on Defendants was an unfair maneuver.” It concluded that lesser
sanctions would not achieve the aims of Federal Rule of Civil Procedure 37’s
sanctions authority.
The district court then considered Plaintiffs’ request for appointment of an
expert pursuant to Federal Rule of Evidence 706. The district court noted the
discretion of the district court to appoint an expert, that courts rarely exercise this
authority, and that appointment of independent experts is permissible where they are
to assist the court with complex and difficult issues, before concluding that “the
circumstances presented here are not so extraordinary or compelling as to justify
appointment of a neutral expert.” The district court finally noted that “[b]ecause the
Court of Appeals determined that Plaintiffs cannot prove damages in this case
without expert evidence and they now have none, it follows that Plaintiffs are not
entitled to a new trial and that judgment shall enter in favor of Defendants on all
claims.” The district court entered judgment in favor of Defendants on January 10,
2023.
On February 6, 2023, Plaintiffs filed a motion to alter or amend the judgment
pursuant to Federal Rule of Civil Procedure 59 or for relief under Federal Rule of
Civil Procedure 60, seeking return of the monetary sanction of $61,222.14 that the
district court had imposed against Plaintiffs related to the costs that Defendants
incurred in preparing to defend against the improperly admitted expert report at trial.

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On February 13, 2023, the district court denied the motion without prejudice because
it did not comply with Local Rule 7.1(a)(1)(A), allowing Plaintiffs an extension of
seven days to refile their motion with an accompanying brief in compliance with the
Local Rule. Seven days later, on February 20, 2023, Plaintiffs did just that.
While that motion was pending, Plaintiffs filed a motion, on March 27, 2023,
to extend the deadline for filing a notice of appeal. In this motion, Plaintiffs stated
that while they believed the district court intended for the time to file a notice of
appeal to be tolled during the pendency of the re-asserted motion, Defendants were
likely to argue that the re-asserted motion was improper and untimely because the
district court did not have the authority to extend the deadline to file a Federal Rule
of Civil Procedure 59 or 60 motion, meaning that the re-asserted motion did not toll
the time to file a notice of appeal. Plaintiffs acknowledged that if Defendants were
correct in their assertion, the deadline to file a notice of appeal would have expired
on March 15, 2023, but asked the district court to extend the deadline to file the
notice of appeal.
On April 14, 2023, the district court granted Plaintiffs’ re-asserted motion and
the motion to extend the deadline to file a notice of appeal. As to the re-asserted
motion, the district court granted it to the extent that it ordered Defendants to
reimburse Plaintiffs $61,222.14 which had previously been imposed as a sanction.
As to the motion for an extension of time to file a notice of appeal, the district court
agreed with the parties that the deadline to file a notice of appeal would have expired
on March 15, 2023, if the time began to run from the district court’s February 13,
2023 order. It then noted that a district court has the authority to extend the time to
file a notice of appeal if a party moves for an extension within 30 days of the lapse
of the original deadline and concluded that Plaintiffs’ motion for an extension was
timely. The district court then determined that an extension was warranted because
Plaintiffs relied reasonably and in good faith on pronouncements of the district court
that the notice of appeal deadline was tolled and because Defendants were not
prejudiced by an extension. The district court ultimately extended the deadline 14
days from the date of the order to April 28, 2023. On April 27, 2023, Plaintiffs filed

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a notice of appeal arguing that the district court erroneously denied its motion for a
new trial and erroneously entered judgment in favor of Defendants. Defendants
cross-appealed, asserting that this Court must dismiss Plaintiffs’ appeal because their
notice of appeal was untimely.
II.
We begin by considering Defendants’ cross-appeal, as it implicates our
jurisdiction to hear this appeal. Defendants assert that Plaintiffs failed to file their
notice of appeal before the appeal deadline, March 15, 2023, and that the district
court erred in extending the deadline because there was no good cause or excusable
neglect to allow such an extension. “We review the grant of a motion for leave to
appeal out of time for abuse of discretion.” Gould ex rel. St. Louis - Kansas City
Carpenters Reg’l Council v. Bond, 1 F.4th 583, 588 (8th Cir. 2021).
“[T]he Supreme Court has made ‘clear that the timely filing of a notice of
appeal in a civil case is a jurisdictional requirement.’” Williams v. York, 891 F.3d
701, 706 (8th Cir. 2018) (quoting Bowles v. Russell, 551 U.S. 205, 214 (2007)).
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal “must
be filed with the district clerk within 30 days after entry of the judgment or order
appealed from.” However, the filing of a motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59 or a motion for relief under Federal Rule
of Civil Procedure 60 within 28 days of the entry of judgment tolls the 30-day
timeframe in Federal Rule of Appellate Procedure 4(a)(1)(A) until “entry of the
order disposing of the last such remaining motion.” See Fed. R. Civ. P. 59
(providing 28 days from entry of judgment for timely motion to alter or amend
judgment); Fed. R. App. P. 4(a)(4)(A)(vi) (stating that Rule 60 motion tolls deadline
for notice of appeal provided it is filed within same time frame of Rule 59 motion).
Here, the parties do not dispute that Plaintiffs’ February 6, 2023 motion to
alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59 or for
relief under Federal Rule of Civil Procedure 60 was timely because it was filed

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within 28 days after the entry of judgment on January 10, 2023. The district court
denied that motion on February 13, 2023 because Plaintiffs failed to comply with a
Local Rule, but it did so without prejudice and allowed Plaintiffs an additional seven
days to re-assert the motion. However, under Federal Rule of Civil Procedure
6(b)(2), “[a] court must not extend the time to act” for filing a motion under Rules
59(e) and 60(b). The district court thus lacked authority to grant Plaintiffs a 7-day
extension, and the 28-day time limit to file the motion lapsed on February 7, 2023.
We therefore agree with Defendants that the re-asserted motion was untimely, and
it could not have tolled the 30-day time frame to file a notice of appeal. Thus, the
relevant date from which the notice of appeal clock began running was February 13,
2023, when the district court denied the timely Federal Rule of Civil Procedure 59
or Federal Rule of Civil Procedure 60 motion. As Plaintiffs filed their notice of
appeal on April 27, 2023, Defendants assert it is untimely and mandates dismissal
of the appeal.
In similar circumstances, this Court has dismissed an appeal for lack of
jurisdiction based on an untimely notice of appeal. In Dill v. General American Life
Insurance, Co., we held that, where a district court entered an order purporting to
extend a party’s deadline to file a Federal Rule of Civil Procedure 50(b) motion in
violation of Federal Rule of Civil Procedure 6(b)(2), the Rule 50(b) motion that the
party filed pursuant to the district court’s unauthorized extension order was untimely
and did not toll the deadline for filing a notice of appeal. 525 F.3d 612, 620 (8th
Cir. 2008). Because the party had not filed its notice of appeal within 30 days of the
entry of judgment, this Court lacked jurisdiction and dismissed the appeal. Id. at
620-21. We recognized that dismissal of the appeal was a “harsh and unfortunate
result,” because the party “relied on the extension granted by the district court,” but
we noted that the party was “not without fault [because] a simple scan of Rule 6(b)(2)
would have provided [the party] notice that the district court lacked authority to grant
an extension of time to file the Rule 50(b) motion.” Id. at 620.
Although Dill recognizes that an extension of time that a district court grants
contrary to Federal Rule of Civil Procedure 6(b)(2) does not toll the deadline to file

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a notice of appeal, this is not the end of the inquiry. Here, unlike Dill, Plaintiffs
moved for, and the district court granted, an extension of time to file a notice of
appeal. Under Federal Rule of Appellate Procedure 4(a)(5)(A), “[t]he district court
may extend the time to file a notice of appeal if . . . a party so moves no later than
30 days after the time prescribed by this Rule 4(a) expires; and . . . that party shows
excusable neglect or good cause.” In considering whether excusable neglect has
occurred, we consider four circumstances: “the danger of prejudice to the
non-moving party, the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” Gould, 1 F.4th
at 588 (citation omitted). We consider “the movant’s reason for missing the
deadline . . . ‘key to the analysis.’ Excusable neglect may include ‘late filings
caused by inadvertence, mistake, or carelessness.’ But ‘inadvertence, ignorance of
the rules, or mistakes construing the rules do not usually constitute “excusable
neglect.”’” Id. (citations omitted). “With regard to determining whether a party’s
neglect of a deadline is excusable, the Supreme Court has held that ‘the
determination is at bottom an equitable one, taking account of all relevant
circumstances surrounding the party’s omission.’” Gibbons v. United States, 317
F.3d 852, 854 (8th Cir. 2003) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 395 (1993)).
The district court concluded that these factors weighed in favor of granting
the extension because the delay was nominal and the impact was minimal; Plaintiffs
reasonably relied in good faith on the pronouncements of the district court and the
delay in filing the notice of appeal was essentially beyond Plaintiffs’ control; and
Defendants could not claim prejudice because it would “be unfair for Defendants to
lie in the weeds assuming that the February 13, 2023 Order started the time to appeal
running, then claim prejudice from a purportedly untimely appeal only after
litigating the refiled [m]otion.” Because whether to grant a motion for an extension
of time is “at bottom an equitable” consideration and the district court took into
account “all relevant circumstances,” we find no abuse of discretion in the district
court’s analysis. See Gibbons, 317 F.3d at 854 (quoting Pioneer, 507 U.S. at 395).

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Although Defendants are correct that “a simple scan” of Rule 6(b)(2) would have
alerted Plaintiffs that the district court could not extend the time to file their Federal
Rule of Civil Procedure 59 or Federal Rule of Civil Procedure 60 motion, this fact
alone, considered among the district court’s balancing of the other factors, does not
warrant reversal.
On the record before us, we are satisfied that the district court did not abuse
its discretion when it concluded that excusable neglect existed that warranted
extension of the deadline to file a notice of appeal. The district court therefore did
not err in granting Plaintiffs’ motion for an extension of time, and Plaintiffs’ appeal
is timely.
III.
We now turn to the merits of Plaintiffs’ appeal. Plaintiffs assert that the
district court erred in denying their motion for a new trial because its Federal Rule
of Civil Procedure 37(c)(1) and Federal Rule of Evidence 706 analyses were based
on improper factors. Plaintiffs also assert that the district court erred when it sua
sponte entered judgment in favor of Defendants without giving any notice to
Plaintiffs or affording them the opportunity to respond to the district court’s rulings
in the order denying the motion for a new trial. “We review the denial of a motion
for a new trial for a ‘clear’ abuse of discretion, with the key question being whether
a new trial is necessary to prevent a miscarriage of justice.” Petrone II, 42 F.4th at
968 (citation omitted). “We review the district court’s exclusion sanction [pursuant
to Federal Rule of Civil Procedure 37(c)(1)] under an abuse of discretion standard.”
Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018).
We also review a district court’s decision not to appoint a Federal Rule of Evidence
706 expert for an abuse of discretion. Stevenson v. Windmoeller & Hoelscher Corp.,
39 F.4th 466, 469 (7th Cir. 2022).

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A.
We begin with Plaintiffs’ argument regarding the district court’s Federal Rule
of Civil Procedure 37(c)(1) analysis. Where a party fails to timely disclose an expert
report in violation of Federal Rule of Civil Procedure 26(a), the district court,
pursuant to Federal Rule of Civil Procedure 37(c)(1), has “the authority to exclude
the late-disclosed materials or to fashion a lesser penalty than total exclusion.” Vogt
v. State Farm Life Ins. Co., 963 F.3d 753, 771 (8th Cir. 2020). “In other words, if a
party does not satisfy the expert disclosure requirements in Rule 26(a)(2), the
undisclosed information or expert is excluded unless the failure was substantially
justified or harmless. However, the district court may, on a party’s motion, impose
an additional or alternative sanction.” Vanderberg, 906 F.3d at 703. “When
fashioning a remedy,” whether it be exclusion or a lesser sanction, “the district court
should consider, inter alia, 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.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008).
The district court did not abuse its discretion when it concluded that the Rule
37(c)(1) analysis warranted exclusion of the late-disclosed expert report. First, the
district court considered the threshold issues of substantial justification and
harmlessness. In concluding that the late disclosure was not substantially justified,
the district court noted the earlier rulings in the case that the failure to timely disclose
was not substantially justified before stating that “Plaintiffs still have no reasonable
excuse” for the deficiencies in the original expert report that led to its untimely filing.
The district court concluded that “Plaintiffs’ expert had the information and could
have developed a proper methodology before the deadline, so Plaintiffs’ untimely
disclosure of their expert’s pertinent opinions was not substantially justified.” As to
whether the late disclosure was harmless, the district court noted that
“‘harmlessness’ turns on whether the opposing party is prejudiced by the untimely
disclosure,” concluding that “prejudice arises from Defendants’ reliance on the
existing record to prepare for trial and to assert Plaintiffs’ lack of admissible

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evidence of damages, as well as the delay of the trial, the additional expense, and the
duplication of effort to which the untimely report subjected Defendants.” We find
no error in the district court’s thorough analysis of these factors; it properly weighed
the relevant considerations before concluding that each factor weighed in favor of a
sanction.
The district court then considered the factors, as stated in Wegener, to
determine the appropriate sanction. The district court acknowledged its “wide
discretion” to fashion an appropriate sanction, before concluding that “Plaintiffs
have offered no adequate ‘reason for noncompliance,’” relying on “essentially the
same reasons” it offered when it earlier concluded that the untimely disclosure was
not substantially justified. The district court then concluded that the late disclosure
prejudiced Defendants for largely the same reasons that it concluded the late
disclosure was not harmless. The district court further found that “the untimely
information would have—and did in fact—disrupt the order and efficiency of the
original trial” by causing delays, similarly concluding that “‘re-progressing’ a new
trial will cause further delay and expense.” The district court then noted that the
parties agreed that the untimely expert report was important to the overall case, as it
was required for Plaintiff to prove damages, before concluding that, although this
was important evidence, “[n]othing in the language of Rule 37(c)(1) suggests that if
the untimely disclosed evidence is ‘crucial,’ a lesser sanction than exclusion should
follow, and that has not been the view or uniform practice of the Eighth Circuit Court
of Appeals.” After considering each of these factors, the district court concluded
“that the provision for lesser sanctions than exclusion under Rule 37(c)(1) should
not be invoked,” and “that a lesser sanction is not appropriate for Plaintiffs’ untimely
disclosure of expert evidence and that such evidence must be excluded.” We see no
abuse of discretion in this analysis, as the district court properly walked through the
relevant factors and exercised its considerable discretion in concluding that
exclusion was the appropriate sanction.
Plaintiffs offer a host of reasons to demonstrate that the district court abused
its discretion, but each falls flat in light of the district court’s considered analysis.

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First, to the extent Plaintiffs assert the nature of the claims they pursue demand a
different result, the type of claims is irrelevant to the district court’s Federal Rule of
Civil Procedure 37(c)(1) analysis. Second, to the extent Plaintiffs assert that the
district court conflated the threshold factors of substantial justification and
harmlessness with the factors to consider in fashioning a sanction, this is clearly
belied by the record. That the district court recognized overlap between the
threshold factors and some of the sanction factors does not amount to legal error.
Further, the record also demonstrates that the district court did not, as Plaintiffs
suggest, treat the factors as bright-line rules rather than factors to be considered in
totality. Third, the district court provided clear reasoning as to why the late
disclosure was not substantially justified, including that it did not credit Plaintiffs’
assertion that computation errors resulted from the fact that it was Defendants’
obligation to keep accurate wage records.
Fourth, the district court did not err by failing to recognize that “to err is
human,” as this is not a relevant factor in the Federal Rule of Civil Procedure
37(c)(1) analysis. Finally, the district court did not unduly emphasize the age of the
case or improperly “prejudge” that exclusion of the expert testimony would result in
judgment in favor of Defendants. While the district court generally remarked on the
age of the case in its order denying the motion for a new trial, this did not form the
basis of the district court’s decision regarding the prejudice Defendants suffered
from the late disclosure, as demonstrated by the record. And the district court did
not make any prejudgment about the effect of exclusion; it merely recognized that
this Court previously held that “without expert testimony, Plaintiffs would be unable
to prove damages,” and did so only after conducting the requisite Rule 37(c)(1)
analysis. The district court thus did not err in excluding the expert report pursuant
to Federal Rule of Civil Procedure 37(c)(1) and denying Plaintiffs’ motion for a new
trial on this basis.

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B.
Turning to the district court’s Federal Rule of Evidence 706 analysis, under
this rule, “[o]n a party’s motion or on its own, the court may order the parties to
show cause why expert witnesses should not be appointed.” “This rule codifies the
inherent power of a trial judge to appoint an expert who will function as a neutral
expert serving the court rather than any particular party.” Stevenson, 39 F.4th at
468. A district court has “‘considerable discretion in deciding whether to appoint an
expert pursuant to Rule 706 . . . .’ ‘Nevertheless, courts rarely exercise their authority
under Rule 706, requiring extraordinary and compelling circumstances to justify
appointing an expert witness under this rule.’” Young v. Mayor of City of St. Louis,
No. 21-CV-776 RLW, 2022 WL 1591889, at *2 (E.D. Mo. May 19, 2022) (citations
omitted) (collecting cases). “The purpose of a court-appointed expert is to assist the
court in evaluating the evidence or deciding a fact in issue.” Stevenson, 39 F.4th at
469. Circumstances where an expert may be appropriate include:
resolv[ing] the clash of . . . warring party experts, to help the court
evaluate the admissibility of a party’s proffered expert opinion, to
address ambiguities, confusion, or contradictions within the parties’
opinion evidence, to supply an additional, independent viewpoint when
one party has, whether for lack of resources or another reason, omitted
to present expert opinion in support of its case, resulting in an
incomplete or inadequate exposition of the issues, or to supply expert
guidance that the parties themselves have neglected to provide on
points that are material to the court’s decision.
Id. at 469-70 (second alteration in original) (citations omitted).
Under this framework, the district court did not abuse its discretion in
concluding that no extraordinary or compelling circumstances warranted
appointment of a Federal Rule of Evidence 706 expert. The district court recognized
that this case presented complicated issues and that, without expert testimony,
Plaintiffs could not prove damages. However, the district court determined that
appointment of an expert was not appropriate, particularly because the fact that

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Plaintiffs needed appointed expert testimony on damages was “the result of
Plaintiffs’ neglect,” for which they had no justification. The district court concluded
that “this is a situation in which the lack of a partisan expert opinion to substantiate
Plaintiffs’ damages arises from Plaintiffs’ failure to make a timely disclosure of their
essential expert’s opinion, which simply does not warrant the Court’s appointment
of an expert.” We do not find that this conclusion is an abuse of discretion.
We are unpersuaded by Plaintiffs’ contention that the district court considered
improper factors in conducting this analysis. Contrary to Plaintiffs’ assertions, the
district did not read in a requirement that the need for an expert be “substantially
justified.” The district court instead merely concluded that, on the record before it,
the circumstances were not sufficiently extraordinary or compelling to warrant the
appointment of an expert. Further, the district court’s statement that appointing an
expert “would seriously undermine the Court’s neutrality because the court would
be undoing the ‘default’ and appropriate sanction,” was not an improper
consideration, particularly given that “[a]lthough the rule permits a party to move
for the appointment of an expert, the language of the rule envisions a neutral expert.”
Stevenson, 39 F.4th at 470. Finally, to the extent Plaintiffs argue that the district
court erred in considering the neutrality of an expert because doing so runs counter
to precedent regarding the burden of proof for FLSA damages, we again note that
Rule 706 envisions a neutral expert and that any argument regarding a party’s burden
to prove damages is irrelevant to the overall consideration of whether a neutral expert
is needed to assist the district court with difficult and complex issues. The district
court thus did not err in declining to appoint an expert pursuant to Federal Rule of
Evidence 706 and denying Plaintiffs’ motion for a new trial on this basis.
C.
Finally, we consider Plaintiffs’ claim that even if the district court properly
ruled against them with respect to the Federal Rule of Civil Procedure 37(c)(1) and
Federal Rule of Evidence 706 analyses, it still was improper for the district court to
sua sponte enter judgment in favor of Defendants. Relying on Federal Rule of Civil

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Procedure 56(f), which provides that “[a]fter giving notice and a reasonable time to
respond, the court may . . . consider summary judgment on its own after identifying
for the parties material facts that may not be genuinely in dispute,” Plaintiffs assert
that the district court could not enter summary judgment sua sponte without giving
Plaintiffs notice and an opportunity to respond.
Plaintiffs’ argument is misplaced, however, because the district court’s entry
of judgment was not done as part of pretrial summary judgment proceedings; rather,
the district court entered judgment after concluding that the expert report should be
excluded pursuant to Federal Rule of Civil Procedure 37(c)(1) and that no expert
should be appointed pursuant to Federal Rule of Evidence 706, and, in the absence
of expert testimony, Plaintiffs could not prove damages. This is consistent with our
previous statement in Petrone II that “[t]he district court did not err in concluding
that, without expert testimony, Plaintiffs would be unable to prove damages.” 42
F.4th at 969. With Plaintiffs unable to prove damages, all that remained after the
district court made this determination and denied Plaintiffs’ motion for a new trial
was to enter judgment in favor of Defendants. And, in any event, we also note that
the district court, on second remand, reopened Plaintiffs’ motion for a new trial and
ordered supplemental briefing. Given that the district court gave both parties the
opportunity to provide additional briefing on the dispositive issues, we cannot say
that Plaintiffs were not given notice or an opportunity to be heard. Cf. Chrysler
Corp. v. Carey, 186 F.3d 1016, 1022-23 (8th Cir. 1999) (concluding that, in the
context of discovery sanctions, party had been given sufficient notice to satisfy due
process when district court alerted counsel to issue giving rise to sanction and
permitted counsel to provide argument to the court). We conclude that the district
court did not err in entering judgment in favor of Defendants.
IV.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________

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