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United States v. Assorted Drug Paraphernalia

United States District Court, D. New Mexico

August 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ASSORTED DRUG PARAPHERNALIA, Defendant-in-Rem, and GARLAN PLUMLEE and LOOKINGGLASS GIFTS & NOVELTIES, LLC, Claimants.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the United States' Motion to Strike Affidavit of Wes Golden (Doc. 73), filed April 27, 2018, Claimants' Opposed Motion to Extend the Discovery Deadline and the Discovery Motions Deadline (Doc. 80), filed May 5, 2018, and Claimants' Opposed Motion to Strike the Declarations of Joseph Gelinas, Thomas D. Novicki, and Matthew C. Monte (Doc. 89), filed May 30, 2018. Having reviewed the parties' submissions and all pertinent authority, the Court grants United States' Motion to Strike (Doc. 73) and denies Claimants' Motion to Extend Discovery (Doc. 80) and Motion to Strike Declarations (Doc. 89).

         I. BACKGROUND

         This in rem forfeiture case surrounds a dispute whether seized items are drug paraphernalia subject to forfeiture or if they fall under the tobacco exception. The United States filed its Complaint for Forfeiture in rem on November 20, 2016. Doc. 1. After some discovery (see Docs. 19, 20, 23), the United States filed a Motion for Summary Judgment on August 4, 2017 (Doc. 25). Along with that Motion, the United States filed a 10-page “Notice of Intent to Offer Expert Testimony” (“Notice”) identifying as its expert witnesses Joseph Gelinas (Special Agent, Drug Enforcement Administration (DEA)), Thomas D. Novicki (Task Force Officer, DEA), and Matthew C. Monte (Owner and Manager, Monte's Fine Cigars).

         In response, Claimants filed two declarations, pursuant to Federal Rule of Civil Procedure 56(d), requesting additional time for discovery before responding to the summary judgment motion. Docs. 27, 31. After briefing the scope of requested discovery, the Honorable Carmen E. Garza entered a Rule 56(d) Scheduling Order with the following provisions:

• Scope of additional discovery was limited “to whether or not the seized items are drug paraphernalia as defined by 18 U.S.C. § 8(d) or qualify as tobacco products under 21 U.S.C. § 863(f)(2).”
• Claimants had 90 days “to obtain declarations, affidavits, and otherwise take discovery necessary to respond to Plaintiffs Motion for Summary Judgment, ” with all discovery complete by April 10, 2017.[1]
• Claimants could “depose Plaintiffs experts witnesses: Joseph Gelinas, Thomas D. Novicki, Matthew C. Monte, and Amber West, ” and they had “45 days after deposing Plaintiffs experts to name their own expert on tobacco products.” Doc. 68 at 7. For the sake of judicial efficiency, this Court denied the pending Motion for Summary Judgment without prejudice, allowing the United States to refile its motion by May 1, 2018, after completion of the Rule 56(d) discovery. Doc. 70.

         The United States thereafter filed its Second Motion for Summary Judgment on April 10, 2018. Doc. 71. As part of the motion, the United States included declarations pursuant to 28 U.S.C. § 1746 from its government experts, Joseph Gelinas (Doc. 71-1) and Thomas D. Novicki (Doc. 71-3), as well as affidavit of its retained expert Matthew C. Monte (Doc. 71-4). Included with Claimants' response to the Second Motion for Summary Judgment was an affidavit from their retained expert, Wes Golden. Doc. 72.

         Against this backdrop, the United States now seeks to strike Wes Golden's affidavit from Claimants' response because “Claimants failed to disclose Wes Golden as an expert witness during the period allotted for discovery.” Doc. 73 at 1. Claimants seek to extend the Rule 56(d) Scheduling Order's deadlines in order to allow them “to properly disclose their expert [Wes Golden] and to allow the government the opportunity to depose Claimants' expert.” Doc. 80, ¶ 4. Finally, Claimants seek to strike the affidavit and declarations attached to the United States' Second Motion for Summary Judgment on the asserted ground that the United States did not provide Claimants with an expert report from Mr. Gelinas, Mr. Novicki, or Mr. Monte. Doc. 89 at 2.

         II. ANALYSIS

         a. The United States' Motion to Strike and Claimants' Motion to Extend Discovery

         With regard to expert testimony, Rule 26(a)(2) requires that “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed.R.Civ.P. 26(a)(2).

         “[T]his disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specifically employed to provide expert testimony in the case . . . .” Fed. R. Civ. P 26(a)(2)(B). “A party must make these disclosures at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). Here, the Court entered a Rule 56(d) Scheduling Order, requiring that all discovery be completed by April 10, 2018 - a 90-day track from the entry of the Scheduling Order. Doc. 68 at 7. Within those 90 days, Claimants had 45 days after deposing the United States' experts to name their own expert on tobacco products. Doc. 68 at 7. Apparently, Claimants opted not to depose any of the experts identified by the United States.

         Moreover, Claimants did not disclose Mr. Golden as their expert or provide the United States with a written report by April 10, 2018. Indeed, their first mention of Mr. Golden came in their response to the Second Motion for Summary Judgment, filed April 24, 2018. See Doc. 72. Claimants nevertheless argue that they were not required to disclose experts by April 10, 2018 because the Scheduling Order allowed them 45 days after deposing the United States' experts to name their own expert. Claimants assert that because those “depositions have not occurred, ” Claimants “have not committed a Rule 26(a) violation.” Doc. 83 at 3. Simply put, the Court disagrees. Read in context, the Scheduling Order required all discovery, which necessarily would include expert disclosures, to be completed by the April 10, 2018 deadline. Claimants' failure to depose the ...


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