Deatri Larry v. City of Mobile, Alabama

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11697
Non-Argument Calendar
____________________
DEATRI J. LARRY,
Plaintiff-Appellant,
versus
CITY OF MOBILE, ALABAMA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cv-01008-TFM-MU
____________________
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2 Opinion of the Court 22-11697
Before NEWSOM, G RANT , and ANDERSON , Circuit Judges.
PER CURIAM:
Deatri Larry appeals following the district court’s grant of
summary judgment for the City of Mobile (“the City”) on his race
discrimination and retaliation claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”) and discrimination and retaliation
claims under the Uniformed Services Employment and Reemploy-
ment Rights Act (“USERRA”). He argues that the district court
abused its discretion in excluding Myron King’s declaration pursu-
ant to Fed. R. Civ. P. 37(c) based on Larry’s failure to disclose him
as required under Fed. R. Civ. P. 26 as a person likely to have dis-
coverable information. He also argues that the declaration would
have created a genuine issue of material fact at summary judgment
if allowed.
We review the decision to exclude a witness statement for
abuse of discretion. Baxter v. Roberts, 54 F.4th 1241, 1254 (11th Cir.
2022). A district court abuses its discretion if it applies an incorrect
legal standard, follows improper procedures, or makes findings of
fact that are clearly erroneous. Cordoba v. DIRECTV, LLC, 942 F.3d
1259, 1267 (11th Cir. 2019).
We review the district court’s grant of summary judgment
de novo. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th Cir.
2010). Summary judgment is appropriate if, construing the evi-
dence in the light most favorable to the non-movant, the movant
shows that there is no genuine dispute of material fact, and the
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22-11697 Opinion of the Court 3
movant is entitled to judgment as a matter of law. Id. at 1263-64.
We may affirm summary judgment on any ground supported by
the record, even if the district court relied on an incorrect ground
or gave an incorrect reason. Id. at 1264.
We have held that we will review the district court’s eviden-
tiary ruling for an abuse of discretion where an appellant argues
that it was entitled to judgment as a matter of law solely based on
the failure to exclude testimony at trial under Rule 37. Taylor v.
Mentor Worldwide, LLC, 940 F.3d 582, 591-92 (11th Cir. 2019). Thus
we construe Larry’s appeal as a challenge to the district court’s or-
der excluding King’s declaration rather than a challenge to its sum-
mary judgment order because he does not challenge any facts or
conclusions the district court made at summary judgment and
merely argues that exclusion of King’s declaration was fatal to his
case at summary judgment.
Rule 26 requires parties to disclose individuals likely to have
discoverable information in their initial disclosures. Fed. R. Civ. P.
26(a)(1)(A)(i). Parties are required to supplement incomplete dis-
closures in a timely manner. Fed. R. Civ. P. 26(e).
Rule 37 provides that “[i]f a party fails to provide infor-
mation or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
It further provides that “[i]n addition to or instead of this sanction,”
the court may order payment of reasonable expenses and fees or
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4 Opinion of the Court 22-11697
impose other appropriate sanctions. Id. When reviewing the deci-
sion to exclude a witness statement, we consider (1) the explanation
for the failure to disclose the witness, (2) the importance of the tes-
timony, and (3) the prejudice to the opposing party. Baxter, 54 F.4th
at 1254.
In Baxter, we upheld a district court’s decision to exclude a
witness statement submitted in response to a motion for summary
judgment by a witness who had not been disclosed under Rule 26.
Id. at 1252, 1255. We reasoned that the explanation that the witness
had been disclosed in a related case was insufficient, that the testi-
mony was unimportant at summary judgment, and that the testi-
mony would prejudice the opposing party because they would not
have the opportunity to depose the witness or develop other evi-
dence. Id. at 1254-55.
On appeal Larry basically makes two arguments: (1) that the
district court abused its discretion by applying an incorrect legal
standard—i.e. an incorrect interpretation of Rule 37; and (2) that
the district court abused its discretion in weighing the relevant fac-
tors in evaluating the asserted violation of Rule 37. We address and
reject each argument in turn.
I.
Larry argues for the first time on appeal that the district
court employed an incorrect interpretation of Rule 37. Larry ar-
gues that the district court erroneously perceived Rule 37 as a man-
datory and automatic exclusion of the challenged evidence, unless
Larry could show that his failure to disclose was either substantially
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22-11697 Opinion of the Court 5
justified or harmless. In other words, Larry argues that the district
court erroneously assumed—once it had found that the Rule 26 vi-
olation was neither substantially justified nor harmless—that it had
no discretion to order—instead of exclusion of the evidence—a
lesser sanction like a continuance to allow the City to depose King.
For separate and independent reasons, we reject Larry’s new argu-
ment.
First, we see no indication in the text of the district court’s
order, or otherwise in the record, that the district court actually
thought that it had no discretion to consider a lesser sanction in-
stead of excluding the evidence. When Larry makes this argument
for the first time on appeal, he cites only page 5 of the district
court’s order, Doc. 74. See Larry’s Brief at 13. However, at that
page 5 the district court merely quotes, verbatim, language from
Rule 37. The district court does not say that exclusion of the evi-
dence is mandatory and automatic once it found that the failure to
disclose was neither substantially justified nor harmless. And the
district court makes no mention of any lack of discretion or lesser
sanctions. Quite inconsistent with any such perception, the district
court expressly remarked that it would consider curing the viola-
tion later—if Larry survived summary judgment—by reopening
discovery. See Doc. 74 at 6. Especially in light of this remark, we
cannot conclude that the district court actually entertained the in-
terpretation of Rule 37 that Larry suggests.
A second reason to reject this new argument is that Larry
makes this argument for the first time on appeal; he never
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6 Opinion of the Court 22-11697
requested the district court grant a continuance to permit the dep-
osition of King rather than excluding the evidence; he never re-
quested the district court impose a lesser sanction even if it found
Larry’s failure to disclose was neither substantially justified nor
harmless. Thus, Larry did not preserve for appeal a claim of error,
as required by Federal Rule of Evidence 103(a). And there is no
plain error under Rule 103(e). It is not plain or obvious whether
the Eleventh Circuit law provides for a mandatory and automatic
exclusion if the failure to disclose was neither substantially justified
nor harmless, or whether our law allows a district court discretion
to apply a lesser sanction instead of exclusion even under those cir-
cumstances. See Taylor, 940 F.3d at 603-06 (controlling concurring
opinion by J. Carnes, J.) (pointing to the conflict in the circuits on
the issue of whether the exclusion of evidence is mandatory and
automatic in the absence of substantial justification or harmless-
ness, and, at 606, “leav[ing] for another day a more dispositive rul-
ing as to the circumstances under which a litigant’s violation of
Rule 37(c)(1) should result in automatic exclusion of undisclosed
evidence.”). Indeed, in Circuitronix, LLC v. Kinwong Elec. (Hong
Kong) Co., 993 F.3d 1299, 1308 (11th Cir. 2021), we declined to en-
tertain this very issue because the litigant had failed to raise the is-
sue in the district court. We declined to address for the first time
on appeal such “legal theories and arguments not raised squarely
before the district court.” Id. at 1308.
II.
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22-11697 Opinion of the Court 7
Having rejected Larry’s first argument, we turn to his sec-
ond. He argues that the district court abused its discretion in
weighing the relevant factors—i.e. Larry’s explanation for failure
to disclose the evidence initially or promptly supplement his initial
disclosure; the importance of the evidence; and the prejudice to the
City.
First, the district court assumed King’s declaration was im-
portant to Larry’s case because he relied on it in opposing the City’s
motion for summary judgment. The declaration arguably was im-
portant to Larry’s case because King stated that he sat in on meet-
ings where Larry’s complaints were discussed (which may have
given him personal knowledge); that Larry’s complaints were the
reason he was not promoted; and that other white employees had
been given administrative roles, so the City could have done so for
Larry.
Second, regardless of the declaration’s importance, the dis-
trict court did not clearly err in finding that there was not substan-
tial justification for Larry’s failure to disclose King as a witness.
Larry argued that he found out about King from Shobe, suggesting
that was toward the end of discovery. But Shobe was listed in
Larry’s initial disclosures from July 7, 2020, so he would have
known about Shobe almost a year before discovery closed on April
30, 2021. The district court did not abuse its discretion in conclud-
ing that Larry did not diligently pursue discovery with respect to
Shobe, which would have led him to King much earlier. It is clear
from Larry’s “Response to Defendants’ Motion to Strike
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8 Opinion of the Court 22-11697
Declaration of Myron King,” Doc. 60, that Larry had talked to
Shobe well before discovery ended, but reached out to King only
later, after Shobe elected not get involved. See Larry’s Response,
Doc. 60 at 2 (“Counsel for Plaintiff reached out to Mr. Shobe be-
cause he had reportedly been offered a civilian position with the
department if he would resign his sworn position as a firefighter.
Mr. Shobe rejected the offer and took a partial disability retirement.
Mr. Shobe provided information relating to the offer but later
elected not to get involved in plaintiff’s litigation, . . . Following up
on information provided by Mr. Shobe, plaintiff reached out to
Shobe’s supervisor and ultimately to his former commander, for-
mer deputy chief Myron King.”). It is clear from Larry’s Response,
and from the fact that Larry worked there in the same fire depart-
ment, that Larry knew all along about Shobe, and who his supervi-
sor and commander (former deputy chief King) were. Moreover,
Larry had an ongoing obligation to supplement his disclosures. We
cannot conclude that the district court abused its discretion in find-
ing that Larry failed to meet his obligation to supplement in this
regard. And we know he actually obtained the signed declaration
from King two weeks before he filed it in support of his defense to
the City’s motion for summary judgment, thus disclosing King as
a witness for the first time. We cannot conclude that the district
court abused its discretion in finding that Larry’s failure to disclose
King as a witness was not substantially justified.
Third, the district court did not clearly err in finding that
King’s declaration did prejudice the City. Larry’s argument that
King was an employee of the fire department, and therefore known
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22-11697 Opinion of the Court 9
to the City, does carry some weight because the City arguably
might have known whether King had relevant information. But
there was no clear error by the district court in finding that the City
was prejudiced because Larry had the burden of presenting evi-
dence to show he was entitled relief, which means he was required
to perform his own discovery to find adequate witnesses. Further,
Larry responded to the City’s motion for summary judgment with
King’s declaration a month and a half after discovery closed, which
prevented the City from deposing King.
Finally, Larry argues that Taylor indicates that the district
court had other options rather than excluding King’s declaration.
Even assuming that to be true, we note initially that Larry never
suggested to the district court a lesser sanction: he never requested
the district court reopen discovery rather than striking the evi-
dence. We conclude that the district court did not abuse its discre-
tion in choosing exclusion rather than a lesser sanction. At that
point, the court had already extended discovery once, and both par-
ties had filed briefs for summary judgment. The decision not to
extend discovery again in the middle of summary judgment does
not constitute an abuse of discretion.
AFFIRMED.
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