*1 THIS CAUSE is before the Court upon Plaintiff's Motion to Strike Exhibits 36, 37, 38, 39, and 41 from Defendant's Motion for Summary Judgement (ECF No. 104), and Plaintiff's Motion to Strike Untimely Rule 26 Disclosures and to Exclude Witnesses from Trial (ECF No. 105). Defendant filed an omnibus response (ECF No. 113), to which Plaintiff replied (ECF No. 117). This matter was referred to the undersigned by the Honorable Melissa Damian, United States District Judge, to take all necessary and proper action as required by law. (ECF Nos. 110, 132). A motion hearing was conducted before the undersigned on December 19, 2024. Having considered the Motions, Response, and Reply, and with the benefit of oral argument, the undersigned ruled in open court that Plaintiff's Motion to Strike Exhibits 36, 37, 38, 39, and 41 from Defendant's Motion for Summary Judgement (ECF No. 104) was GRANTED, and Plaintiff's Motion to Strike Untimely Rule 26 Disclosures and to Exclude Witnesses from Trial (ECF No. 105) was GRANTED. The following memorializes but does not alter the rulings made in open court.

I. BACKGROUND

Plaintiff's Second Amended Complaint asserts three claims: (1) violation of the Florida Whistle-blower's Act, Fla. Stat. § 112.3187; (2) race discrimination in violation of Title VII of the Civil Rights Act; and (3) retaliation in violation of Title VII of the Civil Rights Act. Plaintiff has been employed by the City of Miami for fifteen years as a police officer and detective. She served most of her tenure as a detective in Internal Affairs. In broad strokes, Plaintiff alleges that she conducted investigations and reported malfeasance involving Chief of Police Manuel Morales and other members of the Miami Police Department, and in response to these reports, Chief Morales and his Command Staff demoted Plaintiff, initiated investigations of Plaintiff, transferred her duty station, reprimanded her, and suspended her.

The deadline to file all pre-trial motions was April 1, 2024, and the deadline to complete all discovery was April 5, 2024. (ECF No. 82). Defendant timely filed a motion for summary judgment on April 1, 2024. (ECF No. 87). In support of its motion for summary judgment, Defendant attached affidavits of Sergeant Sherley Auguste, Chief Chiquita Butler, Commander Conrad Chin-Quee, Officer Harold Cummings, and Major Daniel Garrido. (ECF Nos. 85-36, 85-37, 85-38, 85-39, 85-41). At the time the motion for summary judgment was filed, Defendant had not disclosed these individuals as witnesses as required by Federal Rule of Civil Procedure 26. On April 24, 2024, Defendant provided Plaintiff with amended Rule 26 disclosures that added Sergeant Auguste, Chief Butler, Commander Chin-Quee, Officer Cummings, and Major Garrido as potential witnesses.

Plaintiff filed the instant Motions on May 6, 2024. Shortly thereafter, Judge Damian cancelled the calendar call and jury trial, which was previously set to begin on May 20, 2024. (ECF No. 109). The Court has not yet set a new trial date.

II. LEGAL STANDARD

*2 Rule 26(a)(1) of the Federal Rules of Civil Procedure requires parties to make initial disclosures to each other early in the proceedings. See Fed. R. Civ. P. 26(a)(1)(A), (C), (E). One of the mandatory disclosures is the name and contact information of “each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). “ ‘Use’ includes any use at a pretrial conference, to support a motion, or at trial.” Higgs v. Costa Crociere S.P.A. Co., No. 15-60280-CIV, 2019 WL 8370792, at *10 (S.D. Fla. 2019) (quoting Fed. R. Civ. P. 26(a)(1) advisory committee's note to 2000 amendment), aff'd, 969 F.3d 1295, 1305 (11th Cir. 2020). The disclosure obligation attaches both to witnesses that a party intends to use and witnesses that the party intends to use if “the need arises.” Id.

Fed. R. Civ. P. 26(e).

“Violations of Rule 26 disclosures are subject to harsh sanctions.” Clingman & Hanger Mgmt. Assocs., LLC v. Knobel, No. 16-62028-CIV, 2018 WL 2694594, at *2 (S.D. Fla. Apr. 19, 2018), report and recommendation adopted, 2018 WL 2688759 (S.D. Fla. May 8, 2018). “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or the witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “The sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.” Brown v. NCL (Bahamas) Ltd., 190 F. Supp. 3d 1136, 1140 (S.D. Fla. 2016) (internal quotations and brackets omitted) (collecting cases).

“The district court has broad discretion in deciding whether the failure to disclose evidence is substantially justified or harmless under Rule 37(c)(1).” Clingman, 2018 WL 2694594, at *2 (internal quotations omitted); see also Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976) (per curiam); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997) (“District courts enjoy substantial discretion in deciding whether and how to impose sanctions under Rule 37.”); R.M.R. ex rel. P.A.L. v. Muscogee Cnty. Sch. Dist., 165 F.3d 812, 818 (11th Cir. 1999). “The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.” Bowe v. Pub. Storage, 106 F. Supp. 3d 1252, 1260 (S.D. Fla. 2015) (quoting Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009)). In determining whether the failure was substantially justified or harmless, the court considers: “(1) the importance of the testimony; (2) the reason for the [party's] failure to disclose the witness earlier; and (3) the prejudice to the opposing party if the witness had been allowed to testify.” Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004). Where the reason for the failure and the prejudice to the opposing party weigh against justification or harmlessness, exclusion may be necessary even if the testimony is important. See Romero v. Drummond Co., 552 F.3d 1303, 1321 (11th Cir. 2008) (citing Bearint, 389 F.3d at 1353).

III. DISCUSSION

*3 Defendant concedes that it was required to timely disclose these witnesses under Rule 26 and the failure to do so was negligent. However, Defendant argues that the late disclosure was both substantially justified and harmless. Plaintiff contends that she is prejudiced by the untimely disclosure because (1) Defendant's motion for summary judgment and Plaintiff's response thereto have already been filed, and (2) Plaintiff cannot take depositions of these witnesses, as the deadline for discovery has passed.[1]

As a preliminary matter, the Court agrees that Defendant was obligated to disclose that Sergeant Auguste, Chief Butler, Commander Chin-Quee, Officer Cummings, and Major Garrido possess discoverable information on which Defendant may rely. The identities of these individuals and the respective roles they played in the events giving rise to Plaintiff's claim were known to Defendant from the inception of this case.

Defendant's amended disclosures were untimely. The Local Rules provide that “[p]arty and non-party depositions must be scheduled to occur, and written discovery requests and subpoenas seeking the production of documents must be served in sufficient time that the response is due on or before the discovery cutoff date.” S.D. Fla. L.R. 26.1(d). Defendant served Plaintiff with the amended initial disclosures on April 24, 2024—23 days after it filed a motion for summary judgment and 19 days after the close of discovery. The disclosure of new individuals under Rule 26(a)(1)(A)(i) after the discovery cutoff date is per se untimely because the opponent has been deprived of the opportunity to depose the individuals and develop other evidence to rebut their assertions. See Clingman, 2018 WL 2694594, at *2 (holding that the addition of three fact witnesses to initial disclosures on December 22, 2017 was untimely given that the discovery cutoff date was January 3, 2018); cf. Baxter v. Roberts, 54 F.4th 1241, 1255 (11th Cir. 2022).

The only disputed issue is whether the late disclosures were substantially justified or harmless. Defendant argues that its untimely disclosures were both substantially justified and harmless. The undersigned is not persuaded.

Defendant primarily argues that Plaintiff is not prejudiced because the existence of these witnesses is no surprise to Plaintiff. With respect to Commander Chin-Quee and Officer Cummings, Plaintiff participated in a Department Disciplinary Review Board (“DDRB”) panel on October 18, 2022; that panel was comprised of Chin-Quee, Cummings, and three other individuals. With respect to Chief Butler and Major Garrido, Defendant says that it served Plaintiff with a Disciplinary Action on July 6, 2022 and again on August 18, 2023; page 5 of that document identifies Butler, Garrido, and one other individual as the members of a Disciplinary Review Panel (“DRP”) that made the recommendation contained therein. See (ECF No. 85-31 at 5). And with respect to Sergeant Auguste, Auguste is an Internal Affairs investigator who took two principal statements from Plaintiff and authored Plaintiff's Record of Formal Counseling (“RFC”), which Plaintiff was served with on September 5, 2023 and March 1, 2024. See (ECF No. 85-13). Because Plaintiff was aware of these witnesses’ involvement in her claims, the untimely disclosure is harmless, Defendant says.

*4 Essentially, Defendant contends that notwithstanding its failure to disclose these witnesses, Plaintiff was on notice that they possessed discoverable information because of Plaintiff's personal knowledge and documents produced in discovery. But the purpose of Rule 26(a)(1) is not only to notify an opponent of a witness's existence, but also to notify the opponent that the disclosing party may use the testimony to support its claims or defenses if the need arises. As the Eleventh Circuit has explained, where a party fails to disclose a potential witness during the discovery period, “the prejudice is clear.” Baxter, 54 F4th at 1255. The opponent “should have had the opportunity to depose” the witness “with fair notice that [the disclosing party] may use him as a witness and to develop other record evidence to rebut his assertions.” Id. (emphasis added). Defendant's “failure to follow Rule 26 robbed [Plaintiff] of that chance” and therefore “[e]xclusion [is] the appropriate remedy.” Id.

Defendant also argues that its late disclosures were justified because counsel did not know that it may need to call these witnesses until Plaintiff's deposition, at which Plaintiff, for the first time, asserted that the RFC forms part of the basis for her claims. But this is of no moment. The duty to disclose under Rule 26(a)(1) attaches both to witnesses whose testimony the party intends to use and witnesses whose testimony the party may use if the need arises. Higgs, 2019 WL 8370792, at *10. The testimony of the five witnesses at issue fall into the latter category.

Defense counsel explains that the failure to disclose these witnesses was an oversight. Thus, the fact that the failure was an honest mistake, not bad faith conduct, should weigh in favor of a remedy less severe than exclusion, Defendant argues. The Court appreciates Defense counsel's candor, but exclusion of evidence under Rule 37(c)(1) is not a remedy for bad faith; it is an “automatic and mandatory” sanction unless the nondisclosing party can show substantial justification or harmlessness. Brown, 190 F. Supp. 3d at 1140. Counsel's “neglect” weighs in favor of neither. (ECF No. 113 at 4).

The undersigned understands the extraordinary pressures of simultaneously managing numerous cases as lead counsel. But “[t]he Court has the responsibility to manage its docket.” Young v. Lexington Ins. Co., 269 F.R.D. 692, 694–95 (S.D. Fla. 2010) (striking plaintiff's expert because defendant would be prejudiced by the lack of “meaningful opportunity to take expert discovery, and good cause [did] not exist ... to cure that prejudice by overhauling [the] case management schedule”). The only potential way of curing the substantial prejudice to Plaintiff caused by Defendant's nondisclosure would be to reopen discovery. At the hearing, I inquired as to whether that would be a feasible and adequate remedy. But it is simply not reasonable to reopen discovery months after Defendant filed its motion for summary judgment, particularly in light of the explanation given for the failure to disclose. The Federal Rules of Civil Procedure are “intended to force parties and their attorneys to be diligent in prosecuting their causes of action.” Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996) (quoting Geiger v. Allen, 850 F.2d 330, 331 (7th Cir. 1988)). “If the court allows litigants to continually ignore deadlines and seek neverending extensions without consequence, soon the court's scheduling orders would become meaningless.” Id. at 158 (quoting Tinder, J.).

In summary, Defendant was required to disclose that it may use the testimony of Sergeant Auguste, Chief Butler, Commander Chin-Quee, Officer Cummings, and Major Garrido; Defendant failed to do so during the discovery period; and the failure was neither substantially justified nor harmless. Therefore, exclusion is the appropriate remedy.

IV. CONCLUSION

*5 For the foregoing reasons, Plaintiff's Motion to Strike Exhibits 36, 37, 38, 39, and 41 from Defendant's Motion for Summary Judgement (ECF No. 104) was GRANTED, and Plaintiff's Motion to Strike Untimely Rule 26 Disclosures and to Exclude Witnesses from Trial (ECF No. 105) was GRANTED.

DONE AND ORDERED in open court in Miami, Florida, this 19th day of December, 2024.