United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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).
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.
• 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.
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.
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.
The United States' Motion to Strike and Claimants'
Motion to Extend Discovery
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).
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.
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 ...