*1 Before the Court is Plaintiff John David Hall's Motion to Strike or for Permission to File a Sur-Reply [Doc. 41 (motion) & Doc. 42 (supporting brief)]. Defendant Siskin Steel & Supply Company, Inc., filed a response in opposition [Doc. 44]. Plaintiff did not file a reply, and the time for doing so has passed. See E.D. Tenn. L.R. 7.1. The motion was referred to the undersigned for resolution pursuant to 28 U.S.C. § 636 [Doc. 43]. The motion is ripe, and no hearing is necessary.

I. BACKGROUND

This is an employment discrimination case. Plaintiff alleges he was demoted because of his participation in a protected activity (reporting and complaining that his white co-worker was being subjected to racial discrimination), and because of his age. Plaintiff was 49 at all relevant times, and he held the title of Operations Manager when he was demoted. He claims he was replaced by a “male in his 30s,” Todd McAllister (“McAllister”). Although McAllister was given the title Assistant Operations Manager, Plaintiff claims McAllister was actually performing Plaintiff's old job duties.

Defendant claims that a man named Richard England (“England”) replaced Plaintiff as Operations Manager. England is 15 years older than Plaintiff. England took over in May 2019. Pertinent to the instant motion, England was replaced by James Morgan (“Morgan”) in 2020. Morgan is also the Director of Corporate Operations [see Doc. 40-8]. Morgan is older than Plaintiff but younger than England.

Defendant moved for summary judgment on June 15, 2021 [Doc. 32]. Defendant did not mention Morgan, instead framing the issue as whether McAllister (younger) or England (older) replaced Plaintiff. In his response to the motion for summary judgment, however, Plaintiff writes: “After England's ultimate forced retirement from Siskin, it claims that James Morgan assumed [Plaintiff's] former duties. [Plaintiff] disputes that as well.... [Morgan] is the Chattanooga Operations Manager in name only.” [Doc. 36 at Page ID # 302-03]. Plaintiff contends that because of Morgan's second role as the Director of Corporate Operations, Morgan does not have the capacity to also perform the Operations Manager role, which Plaintiff asserts requires physical presence on the plant floor.

In reply in support of its summary judgment motion, Defendant asserts that Morgan “is the current Operations Manager; he performs some of the duties and responsibilities that [Plaintiff] did as Operations Manager but he also delegates some to his Assistant Operations Manager, Mr. McAllister.” [Doc. 40 at Page ID # 400]. Defendant attached a declaration from Morgan [Doc. 40-8] to its reply.

In the instant motion, Plaintiff argues Morgan's declaration should be stricken because Defendant violated Federal Rule of Civil Procedure 56(c) by attaching the Morgan declaration to its reply rather than to its the motion. Plaintiff also argues Defendant did not previously disclose Morgan as a witness with discoverable information and he requests sanctions under Rule 37. In the alternative, Plaintiff requests an opportunity to depose Morgan and file a sur-reply. Defendant disputes Plaintiff's arguments and, in the alternative, requests that any such ordered deposition be limited to the matters contained in Morgan's declaration. As noted above, Plaintiff did not file a reply.

II. ANALYSIS

A. Rule 6

*2 Federal Rule of Civil Procedure 6(d) provides that “[a]ny affidavit supporting a motion must be served with the motion.” However, “reply affidavits that respond only to the opposing party's brief are properly filed with the reply brief.” Grissom v. Ill. Cent. R.R. Co., No. 1:13-cv-228, 2014 WL 12788729, at *4 (E.D. Tenn. Feb. 3, 2014) (quoting Peters v. Lincoln Elec. Co., 285 F.3d 456, 477 (6th Cir. 2002)).

As Defendant points out, it did not discuss Morgan in its opening brief on summary judgment. Defendant's position in its opening brief was that, if anyone replaced Plaintiff, it was England, who is older than Plaintiff. Plaintiff brought up Morgan in its response to the motion, contending that, after England, Morgan became the Operations Manage “in name only.” [Doc. 36 at Page ID #303]. Morgan's declaration explains that he does, in fact, perform a number of functions Plaintiff used to handle, but he “delegate[s] some of the work to Mr. McAllister.” [Doc. 40-8 at Page ID # 586]. He explains that he does work on the plant floor when he is in Chattanooga [id.].

The Court finds the Morgan declaration is only in response to the arguments Plaintiff makes in his brief. As such, the Morgan declaration should not be stricken (or otherwise not considered) as part of the record for purposes of summary judgment on the basis of Rule 6. Plaintiff's motion is not well-taken in this regard.

B. Rules 26 and 37

Plaintiff also argues Morgan's declaration should be stricken pursuant to Rules 26 and 37 of the Federal Rules of Civil Procedure. Rule 26(a)(1)(A)(i) requires parties to disclose to other parties “the name and, if known, the address and telephone number of each individual likely to have discoverable information ... that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Parties are required to supplement their disclosures “if the party learns that in some material respect the disclosure ... is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). Subpart (a)(1)(E) provides that a “party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.”

Defendant did not disclose Morgan as an “individual likely to have discoverable information.” Fed. R. Civ. P. 26(a)(1)(A)(i). Thus, Rule 37 potentially comes into play:

*3 Fed. R. Civ. P. 37(c). “It is well-established that [Rule] 37(c)(1), enacted in 1993, mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified.” Vance v. United States, No. 98–5488, 1999 WL 455435, at *3 (6th Cir. June 25, 1999) (table decision) (footnotes and citations omitted).

“Harmlessness ... is the key under Rule 37, not prejudice. The advisory committee's note to Rule 37(c) ‘strongly suggests that ‘harmless’ involves an honest mistake on the part of a party coupled with sufficient knowledge on the part of the other party.’ ” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003) (citing Vance, 1999 WL 455435, at *5).

The Sixth Circuit adopted a five-factor test in Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015), as a way to assess whether the failure to disclose was harmless. See Doe by Allen v. Greene Cnty. Bd. of Educ., No. 3:14-CV-548-PLR-CCS, 2016 WL 8793275, at *6, n.3 (E.D. Tenn. Aug. 24, 2016) (citing Howe, 801 F.3d at 747-48). The factors are:

Howe, 801 F.3d at 748 (quoting Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396–97 (4th Cir. 2014)).

“The district court has broad discretion to impose the appropriate sanction, and the sanction of exclusion is certainly appropriate when the failure to abide by the requirements of Rule 26 is not substantially justified or harmless.” Campos v. MTD Prod., Inc., No. 2:07-CV-00029, 2009 WL 2252257, at *9 (M.D. Tenn. July 24, 2009) (citing Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003)). The potentially sanctioned party bears the burden to prove harmlessness. R.C. Olmstead, Inc., v. CU Interface, LLC, 606 F.3d 262, 272 (6th Cir. 2010) (citing Roberts, 325 F.3d at 782). As Plaintiff points out, courts are more likely to determine that a party violated Rule 26 when, as here, the party makes the necessary disclosures “after the discovery deadline in the case.” EEOC v. Dolgencorp, LLC, 196 F. Supp. 3d 783, 795 (E.D. Tenn. July 7, 2016) (citing cases).

Plaintiff contends Defendant “has not offered any explanation for its failure to disclose Mr. Morgan as a witness.” [Doc. 42 at Page ID # 600]. Plaintiff further contends Defendant's failure “is not without prejudice,” as Defendant uses Morgan's declaration “to support its version of heavily contested material facts in this case.” [Id.]. Discovery closed on May 15, 2021 [Doc. 28], so Plaintiff cannot now depose Morgan without a reopening of discovery.

Defendant is correct that Rule 26(e) requires supplementation of initial disclosures only “if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Similarly, sanctions under Rule 37(c) are only mandatory if the failure to disclose was not substantially justified or harmless.

Defendant contends Morgan's identity as a person likely to have discoverable information has long been known to Plaintiff, as has Morgan's “knowledge and potential testimony” [Doc. 44 at Page ID # 612-13]. Plaintiff continues to work with Morgan, Morgan was identified in one of Defendant's timely interrogatory responses, and multiple witnesses (including Plaintiff) referenced Morgan during their depositions [id. at Page ID # 607, 608, 612]. Defendant further contends it only offered the declaration because Plaintiff raised the issue of Morgan's status as a sham Operations Manager. In Defendant's view, it was England who replaced Plaintiff, and even if McAllister performed some of Plaintiff's duties while working for Morgan, that fact “is of no importance to ... this case.” [Id. at Page ID # 614]. Defendant argues it did not previously identify Morgan in its Rule 26 disclosures “because it did not intend to rely on Mr. Morgan's testimony to support a claim or defense, and had no indication that [Plaintiff] would take issue with Mr. Morgan's title of Operations Manager.” [Id. at Page ID # 615].

*4 The merits of Defendant's motion for summary judgment is not addressed herein and this Order expresses no view concerning any relevance of Morgan's job duties vis-a-vie McAllister. As for the issue at hand, for the reasons set forth below, the Court finds Morgan's declaration should not be excluded.

First, Defendant potentially did not need to disclose Morgan. Although Rule 26 specifically excludes impeachment evidence from Rule 26(a)(1)(A)(i) disclosures, not rebuttal evidence, Defendant is correct that courts in this circuit have not distinguished between the two types of evidence. See Sessoms v. Ghertner & Co., No. 3:05-0257, 2006 WL 1102323, at *5 (M.D. Tenn. Apr. 25, 2006) (“[T]he declarations ... are being used to rebut Plaintiffs' contention that they did not exercise discretion or make business judgments. Rule 26(a)(1) excludes from disclosure the names of individuals who will be used by a party ‘solely for impeachment.’ Accordingly, the Motion to Strike will be denied.”); Callins v. First State Bank, No. 1:04-cv-1309, 2006 WL 8435116, at *2 (W.D. Tenn. Sept. 18, 2006) (reserving for trial whether untimely disclosed witnesses should be excluded; holding that only their rebuttal testimony would be permitted, citing impeachment provision of Rule 26(a)(1)(A)(i)); Smith v. Spectrum Health Sys., No. 1:14-cv-1031, 2015 WL 5320884, at *2 (W.D. Mich. Sept. 11, 2015) (“As Defendant plans to call the patient's daughter ‘primarily for impeachment/rebuttal purposes,’ the failure to disclose the patient's daughter's name at an earlier date is not material.”).

Even if Defendant was required to disclose Morgan, the Court finds Defendant's failure to do so is harmless. Applying the factors, Plaintiff should not be surprised at the late disclosure of Morgan, as part of Plaintiff's theory of the case appears to be that Morgan's current job responsibilities reflect McAllister actually replaced Plaintiff, not England. This weighs in favor of allowing the declaration. The importance of the evidence appears to depend on whether, at trial, Plaintiff relies on the division of labor between Morgan and McAllister as part of his case, so this factor is neutral. Defendant's explanation for not disclosing Morgan is plausible. As set forth above, courts in this circuit have found that rebuttal witnesses do not have to be disclosed. So this factor weighs in favor of allowing the declaration.

The two remaining factors are the ability to cure the surprise, and the extent to which allowing the evidence would disrupt the trial. The Court will grant a limited amount of time for Plaintiff to depose Morgan and file a sur-reply, which will cure any potential surprise to Plaintiff and keep the trial schedule on track. With this relief to Plaintiff, the last two factors also weigh in favor of allowing the declaration.

Accordingly, four of the five factors weigh in favor of permitting the late disclosure of Morgan and not striking his declaration from Defendant's reply in support of its motion for summary judgment.

III. CONCLUSION

For the reasons stated above, Plaintiff's motion to strike [Doc. 41] is (1) DENIED IN PART in that Plaintiff's request to strike Morgan's declaration is DENIED and (2) GRANTED IN PART in that Plaintiff's alternative request to depose James Morgan and file a sur-reply is approved under the following conditions:

SO ORDERED.

ENTER: