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United States v. 14.3 Acres of Land

August 29, 2008


The opinion of the court was delivered by: Hon. Nita L. Stormes, U.S. Magistrate Judge


Before the Court in the above-captioned matter is a Motion to Strike Plaintiff's Experts' Reports filed by Defendants Timothy and Cheryl Lichty [Doc. No. 29]. Defendants request that the Court find good cause to impose evidentiary sanctions pursuant to Federal Rule of Civil Procedure 37(c) against Plaintiff United States of America for alleged violations of court-imposed deadlines and the Federal Rules of Civil Procedure governing the exchange of expert reports. Specifically, Defendants seek an order of the Court striking from the record certain reports submitted by two of Plaintiff's experts in this case, or in the alternative, excluding the reports from evidence. Plaintiff filed an opposition to the motion [Doc. No. 34], and Defendants filed a reply [Doc. No. 35]. On August 22, 2008, the Court held a hearing on the motion. Michael Quinton appeared on behalf of Defendants Timothy and Cheryl Lichty. Assistant United States Attorneys Thomas Stahl, Katherine Parker, and Christopher Latham appeared on behalf of Plaintiff United States of America. After hearing oral arguments, the matter was submitted on the record. For the reasons stated below, the Court DENIES Defendants' motion.


This action arises from the condemnation of 14.3 acres of land adjacent to the United States -- Mexico border. On May 16, 2007, the United States government (Plaintiff in this case, hereafter "government"), acting under the authority of the Department of Homeland Security Act, 6 U.S.C. §§ 111, 202, 251, and 557, took possession of Defendants Timothy and Cheryl Lichty's property in south San Diego County. (See Decl'n. of Taking, Doc. No. 3, Schedules "A" and "C" attached.) The acquisition occurred due to the proximity of Defendants' land to the Mexican border and its categorization as land for public use in connection with the Multi-Tiered Fence Project in San Diego County, California, commonly referred to as the Border Fence project. (Id.) At the time of filing the Declaration of Taking, the government deposited into the Registry of this Court the amount of Three Hundred Fifty-eight Thousand Dollars ($358,000.00) as estimated just compensation for Defendants' condemned property. (See Joint Motion for Disbursement of Funds, Doc. No. 6.) Defendants do not challenge the statutory authority for the taking. The sole issue in this case is whether the previously disbursed funds constitute just compensation for the land.

The discovery period in this case began in September 2007 and closed on August 1, 2008. The parties focused their discovery efforts primarily on obtaining documentation and expert opinions regarding the fair market value of Defendants' land on the date of the taking. In November 2007, the Court issued a Scheduling Order setting discovery deadlines and other pretrial proceedings. (See Court's November 7, 2007 Scheduling Order, Doc. No. 14.) The instant motion concerns the deadlines set for the exchange of expert disclosures. Paragraph 3 of the Scheduling Order provides as follows:

Defendants' expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on all parties on or before January 31, 2008. Plaintiff's expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on all parties on or before April 30, 2008.

Any contradictory or rebuttal information shall be disclosed on or before May 30, 2008. (Emphasis in original). This paragraph also references the duty to supplement expert disclosures pursuant to Federal Rules of Civil Procedure 26(e) and 26(a)(3) prior to the December 1, 2008 deadline set for pretrial disclosures, and emphasizes that failure to comply with these deadlines may result in the sanctions provided for by Rule 37, including the exclusion of evidence. (Id.)

Defendants assert that two of the government's experts submitted a total of three reports after the deadline for their disclosure, in violation of the Court's Scheduling Order and Rule 26(a)(2). These reports include:

* A report prepared by Ms. Nancy Lucast, the government's expert on the jurisdiction of the California Coastal Commission over Defendants' property, dated June 11, 2008, received by Defendants via U.S. mail on June 18, 2008, intended by Ms. Lucast to supplement and correct her April 28, 2008 expert report, presenting her final opinion on the issue of the California Coastal Commission's jurisdiction, if any, over Defendants' property.

* A report prepared by Mr. Norm Arndt, the government's expert civil engineer, dated June 16, 2008, received by Defendants June 20, 2008, intended by Mr. Arndt to supplement and correct his April 25, 2008 expert report, presenting a revised estimated cost of extending dry utilities to Defendants' property.

* A report prepared by Mr. Arndt, dated June 27, 2008, received by Defendants on the same date, intended by Mr. Arndt to supplement and augment his April 25, 2008 expert report, presenting additional statutory authority supporting the need for construction of a new access road on Defendants' property prior to development.*fn1

See Defendants' Motion, Quinton Decl'n., Exs. "F," "M," and "N.")

Based on their alleged untimeliness, Defendants move the Court to strike these reports from the record of the case, or in the alternative, exclude the reports from evidence. (See Defendants' Motion to Strike, Doc. No. 29.) The government argues in opposition that the disputed reports were submitted in accordance with Rule 26(e) as part of the continuing duty of parties to supplement their previous expert disclosures with additions or changes prior to the deadline for filing pretrial disclosures, December 1, 2008. As such, the government argues that the reports are not untimely pursuant to the Court's Scheduling Order or the applicable Federal Rules. (See Plaintiff's Opposition, Doc. No. 34; see also Court's Scheduling Order ¶10.) Defendants dispute the government's representation that the reports qualify as "supplemental" reports and argue that the late submissions are new reports, containing previously undisclosed information, newly developed theories, and/or new bases for the experts' opinions. Defendants argue that the government deliberately close to ignore the deadlines set by the Scheduling Order, inherently prejudicing Defendants' case and causing actual prejudice as well. (See Defendants' Reply, Doc. No. 35.)


Federal Rule of Civil Procedure 26 governs the disclosure of expert testimony. Rule 26(a)(2) provides that a party must disclose to other parties "the identity of all expert witnesses who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." Rule 26(a)(2)(B) further adds that:

Unless as otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report prepared and signed by the witness. The report must contain a complete statement of all opinions to be expressed and the basis and reasons therefor . . .

With respect to the timing of expert disclosures, Rule 26(a)(2)(C) provides that: "A party must make these disclosures at the times and in the sequence that the court orders." Rule 26(e)(2) governs the supplementation of expert reports. It provides, in pertinent part:

For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due. "Although Fed. R. Civ. P. 26(e) requires a party to 'supplement or correct' a disclosure upon information later acquired, that provision does not give license to sandbag one's opponent with claims and issues which should have been included in the expert witness' report . . ." Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 635 (D. Haw. 2008) citing Beller ex rel. Beller v. United States, 221 F.R.D. 689, 695 (D.N.M. 2003) (citation omitted).

Parties who run afoul of Rule 26 may face sanctions as specified in Federal Rule of Civil Procedure ...

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