Martin v. Lens.com, Inc.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 0:24-cv-60489-LEIBOWITZ/AUGUSTIN-BIRCH
RICKEY MARTIN,
Plaintiff,
v.
LENS.COM, INC.,
Defendant.
_______________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon the Report and Recommendation by United States
Magistrate Judge Panayotta Augustin-Birch [ECF No. 112] (the “R&R”), filed on February 17, 2026,
recommending Defendant’s Motion to Strike Plaintiff’s Untimely Disclosed Expert Witness for Class
Certification [ECF No. 108] (“the Motion”) be DENIED. [ECF No. 112 at 1, 3]. The undersigned
previously 	referred 	the 	Motion 	to 	U.S. 	Magistrate 	Judge 	Augustin-Birch 	for 	a 	report 	and
recommendation consistent with 28 U.S.C. § 636(b)(1)(B), Rule 72 of the Federal Rules of Civil
Procedure, and Rule 1(d) of the Local Magistrate Judge Rules. 	[ECF No. 110]. 	Defendant timely
objected to the R&R [ECF No. 117]. Upon due consideration of the Motion, the R&R, the parties’
papers, the relevant portions of the record, and the governing law, the Court’s de novo review finds no
error. 	Accordingly, the Report and Recommendation [ECF No. 112] is ADOPTED AND
AFFIRMED for the reasons given below.
I. 	STANDARD OF REVIEW
In reviewing a Report and Recommendation, the district court “shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1)(C). “Parties filing objections to a magistrate’s report
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and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or
general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353,
1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal
quotation marks omitted). Absent objection, the district judge “may accept, reject, or modify, in whole
or in part, the findings and recommendations made by the magistrate [judge],” 28 U.S.C. § 636(b)(1),
and “need only satisfy itself that there is no clear error on the face of the record” to accept the
recommendation. Fed. R. Civ. P. 72 advisory committee’s note to 1983 amendment, subdivision (b).
II. 	BACKGROUND
Plaintiff, on behalf of himself and all others similarly situated, filed a class action Complaint
against Defendant, alleging Defendant deliberately misleads Florida consumers on its website. [ECF
No. 1-1]. Plaintiff asserts Defendant, an online retailer of contact lenses, imposes a “Taxes & Fees”
charge on Florida customers, even though the State of Florida exempts prescription contact lenses
from a sales tax. [Id. ¶ 2]. As such, Plaintiff contends the “Taxes & Fees” charge for Florida customers
is solely a “Processing fee,” which Plaintiff claims is “excessive and unrelated to the actual costs of
processing the purchase order.” Id. 	Based on these allegations, Plaintiff sues Defendant for violating
Florida’s Deceptive and Unfair Trade Practices Act (“FDUPTA”), Fla. Stat. § 501.21, et seq. 	[ECF
No. 1-1 at 13–15].1
Pertinent to Defendant’s Motion to Strike, the Scheduling Order entered for this case required
the parties to exchange class certification expert witness summaries by February 21, 2025. [ECF No.
54 at 2]. In the instant Motion, Defendant complains that Plaintiff failed to disclose class certification
expert––Stephen Heffner, who opined on how Defendant calculates its “Taxes & Fees” charge—by
1 	Plaintiff also asserted claims against Defendant for breach of contract and unjust enrichment
[ECF No. 1-1 at 15–18], which claims were transferred to the District of Nevada under the parties’
forum-selection clause. [See ECF No. 50].
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the court-ordered deadline. [ECF No. 108 at 4–5]. As a result, Defendant moves the Court (1) to
strike Mr. Heffner’s report and (2) to preclude Plaintiff from relying on Mr. Heffner’s opinions in
support of class certification. [Id. at 5–7].
Applying Federal Rules of Civil Procedure 26(a)(2)(D) and 37(c)(1), Judge Augustin-Birch
found (1) “Plaintiff’s failure to timely disclose Mr. Heffner’s opinion for class certification purposes
[was] substantially justified [ECF No. 112 at 2]”; (2) “Plaintiff’s failure to timely disclose Mr. Heffner’s
opinions for class certification purposes [was] harmless” [id. at 3]; and (3) the undersigned should
determine whether Defendant has been prejudiced by not having an opportunity to respond to
arguments based on Mr. Heffer’s opinions newly raised by Plaintiff in its reply brief in support of class
certification [id.].
III. 	DISCUSSION
Defendant lodges two objections to the R&R: 	(1) the R&R did not address the prejudice
caused by Plaintiff’s disclosing new expert evidence for the first time in his reply brief in support of
class certification [ECF No. 117 at 3–4]; and (2) the R&R erred by not applying Rule 37(c)(1)’s
mandatory exclusion standard [id. at 5–7]. The Court addresses each objection in turn.
A. Objection No. 1: Overruled. The Court finds no error.
Defendant objects to Judge Augustin-Birch’s failure to address the prejudice it suffered by
Plaintiff’s raising new arguments and evidence for the first time in Plaintiff’s reply brief in support of
Plaintiff’s motion for class certification. [ECF No. 117 at 3–4 (citing Eleventh Circuit caselaw and
S.D. Loc. R. 7.1(c), prohibiting the introduction of new arguments and evidence in a reply brief, the
purpose of which is strictly limited to rebutting matters raised in the memorandum in opposition)].
Defendant is correct that Judge Augustin-Birch did not address this issue. 	That is because Judge
Augustin-Birch’s analysis was confined to the referred Motion to Strike in which Defendant sought
to have Mr. Heffner’s expert opinion excluded as untimely. [See ECF Nos. 108, 110]. Judge Augustin-
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Birch expressly stated that Defendant’s prejudice argument “[was] not before the Court” and reserved
to the undersigned the determination of whether Defendant should be allowed an opportunity to
respond to Plaintiff’s reply brief. 	[See ECF No. 112 at 3]. 	To date, Defendant has not moved for
leave to file a sur-reply. So even though Defendant complains it was not afforded an opportunity to
respond to Plaintiff’s reply, Defendant never sought such opportunity. At this late date, the ship has
sailed. Plaintiff’s reply brief was filed on January 9, 2026—sixty-six (66) days ago. Rather than seek
court permission to respond to the “new evidence and argument,” Defendant moved to strike Mr.
Hefner’s report altogether. Accordingly, Defendant waived this objection by not seeking leave to file
a sur-reply. That said, Defendant may still seek leave to file a sur-reply out of time, which the Court
may consider prior to scheduling a hearing on Plaintiff’s motion for class certification. Accordingly,
Objection No. 1 is OVERRULED.
Objection No. 2: Overruled. The Court finds no error.
Defendant objects to Judge Augustin-Birch’s recommendation to deny its Motion to Strike on
the grounds that exclusion of Mr. Heffner’s untimely report was mandatory under Rule 37(c)(1). [ECF
No. 117]. 	Defendant challenges the R&R’s finding that Plaintiff’s failure to timely disclose Mr.
Heffner’s opinion was substantially justified and harmless. 	[ECF No. 117 at 5–7]. 	Defendant
complains that—even though Defendant’s pricing algorithm (upon which Mr. Heffner opines) was
not disclosed to Plaintiff until after the deadline for disclosing experts—Plaintiff waited until after
Defendant had filed its opposition memorandum (two-and-a-half months after receiving Defendant’s
algorithm) and after class discovery had closed to make the disclosure. 	[Id. at 5–7]. 	Relatedly,
Defendant challenges the R&R’s suggestion that Defendant would not need any additional discovery
with respect to its own algorithm, because Defendant was deprived of the opportunity to depose Mr.
Hefner after class discovery closed. [Id. at 6–7].
In support of this objection, Defendant cites Roberts v. Scott Fitzer Co., No. 4:07-cv-80 CDL,
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2010 WL 3546499 (M.D. Ga. Sept. 7, 2010) (striking expert disclosed after discovery cutoff and
holding: “That Defendant waited to fully develop its strategy until after discovery had expired does
not amount to substantial justification when it easily could have developed the information within the
discovery period and timely disclosed the information, as required by the Federal Rules of Civil
Procedure and the Court’s scheduling orders.”). 	In that case, however, the district court struck
Defendant’s untimely expert report based on its finding that the late disclosure was neither
substantially justified nor harmless. Id. at *7–*9.
As far as the Court can see, Plaintiff cites Mr. Heffner’s 3 1/4 page “report” dated January 5,
2026, only once in footnote 3 of Plaintiff’s reply brief. [See ECF No. 104 at 6 n.3]. That footnote
reads in toto: “See (Report of Coding Expert Stephen Heffner, attached as Ex. 16) (analyzing the
software code/pricing algorithm and concluding the “Taxes and Fees” amount is based on
competitors’ prices and does not ingest order-specific tax or processing cost fields). 	Footnote 3 is
associated with the following text from the body of Plaintiff’s reply brief:
Class certification does not require a merits verdict, a consumer survey, or a price-
comparison study. 	It requires a showing that common questions will be answered
with common proof. 	That proof is shown by: the source code (which is a pricing
markup that dynamically sets the amount as part of pricing, not cost recovery [footnote
3]….)
[ECF No. 104 at 6]. So, Plaintiff has not put forward Mr. Heffner’s opinion to support its motion for
class certification. Instead, Plaintiff contrasts the type of evidence required at class certification against
the type of evidence required to establish liability (e.g., Mr. Heffner’s opinion). The Court therefore
does not have Mr. Heffner’s opinion before it as it resolves Plaintiff’s motion for class certification.
Further, after reviewing Mr. Heffner’s report, the Court sees no value in considering it at class
certification.
The Eleventh Circuit has at times looked to the importance of the witness as one factor in
determining whether to exclude a previously undisclosed witness. 	See, e.g., Cooley v. Great S. Wood
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Preserving, 138 F. App’x 149, 161 (11th Cir. 2005) (per curiam) (quoting Bearint ex rel. Bearint v. Dorell
Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004) (“In reviewing for abuse of discretion a court’s
exclusion of a non-disclosed witness, we consider ‘(1) the importance of the testimony, (2) the reasons
for the appellant’s failure to disclose the witness earlier, and (3) the prejudice to the opposing party if
the witness had been allowed to testify.’”)). Applying these considerations here, the undersigned finds
Mr. Heffner’s opinion has no importance at class certification. Thus, Plaintiff’s failure to disclose the
report by the class expert deadline and his reasons for the delay are of no consequence. 	Finally,
Defendant cannot be prejudiced by a footnote citation to evidence that the Court will not consider to
resolve the class certification issue. 	Accordingly, Judge Augustin-Birch did not err. 	Defendant’s
Objection No. 2 is OVERRULED.
In sum, the Court’s de novo review of the R&R, Defendant’s Motion, the parties’ papers,
relevant portions of the record, and the applicable rules, finds no error.
IV. 	CONCLUSION
For these reasons, it is hereby ORDERED AND ADJUDGED that:
1. 	The Magistrate Judge’s Report and Recommendation [ECF No. 112] is AFFIRMED
and ADOPTED and fully incorporated herein.
2. 	Defendant’s Motion To Strike [ECF No. 108] is DENIED.
DONE AND ORDERED in the Southern District of Florida on March 17, 2026.
cc: 	counsel of record
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