*1 On October 4, 2024, Plaintiff U.S. Bank N.A. filed a motion for summary judgment in this mortgage dispute. Dkt. 61. The motion relies on multiple documents, plus a declaration of Juliana Thurab, a Contract Management Coordinator at the loan servicer, PHH Mortgage Corporation (“PHH Mortgage”), to assert that U.S. Bank Trust is entitled to foreclose against the underlying property and recover the $160,610.40 payoff balance on the note. See generally id.

In response, Defendant Diana Lindsey argues U.S. Bank's evidence should be stricken—and that summary judgment should be denied—because U.S. Bank wholly failed to produce or identify any evidence or witness during discovery. See Dkt. 64 at 6-12. U.S. Bank did not address these serious allegations; it did not file a reply.

Rule 26(a) imposes a duty on all parties to provide initial disclosures that disclose specific information, “without awaiting a discovery request ....” Fed. R. Civ. P. 26(a)(1). Most pertinent here, a party must disclose certain key information that it may use to support its claims or defenses:

Id. at 26(a)(1)(A)(i)-(iii).

Here, the parties represented to the Court that they would provide their initial disclosures by March 6, 2024. Dkt. 44 at 3 (Joint Discovery Case Management Plan). But U.S. Bank never provided those disclosures. See Dkt. 64-1 at 21 (Declaration of Lindsey's counsel, stating that U.S. Bank “has never provided Initial Disclosures”).

Having failed to make its Rule 26 disclosures, U.S. Bank never identified PHH Mortgage's Contract Management Coordinator, Ms. Thurab, as a person with information pertinent to U.S. Bank's claim. Likewise, U.S. Bank failed to disclose the documents attached to its summary-judgment motion and its computation of damages, in violation of Rule 26(a)(1)(A)(ii)-(iii). These omissions are compounded by U.S. Bank's failure to timely produce documents pertinent to damages issues, even though Lindsey timely sought them more than 30 days before discovery closed on October 4, 2024.[1] Compare Dkt. 64-1 at 25-30 (Lindsey's requests for production, served on September 3, 2024), with Dkt. 47 at 2 (October 4, 2024 discovery deadline).

A party who fails to provide information or identify a witness through initial disclosures or proper supplementation of discovery responses “is not allowed to use that information or witness to supply evidence on a motion ... unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also, e.g., Martino v. Kiewit N.M. Corp., 600 F. App'x 908, 909 (5th Cir. 2015) (affirming order striking summary-judgment evidence that the proffering party failed to produce). This sanction is “automatic and mandatory” unless the party shows that “its violation of Rule 26(a) was either justified or harmless.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003); see also, e.g., Avina v. JP Morgan Chase Bank, 2010 WL 518932, at *1 (S.D. Tex. Feb. 1, 2010) (burden to show justification or harmlessness rests on the party who failed to comply with Rule 26).

*2 U.S. Bank offers no justification for its wholesale failure to comply with its discovery obligations by providing basic disclosures and timely producing the documents now proffered to support its claims. Nor has U.S. Bank attempted to rebut Lindsey's showing that the lack of timely disclosure and production has prejudiced Lindsey's defense, including Lindsey's ability to designate and proffer a damages expert and otherwise challenge the amount owing on the loan. See Dkt. 64-1 at 21-23 (detailing prejudice resulting from U.S. Bank's failures to comply with discovery obligations).

As a result, U.S. Bank has not met its burden to show that its failure to comply with Rule 26 is substantially justified or harmless. The undisclosed evidence attached to U.S. Bank's motion for summary judgment (Dkt. 61-1 at 2-66, including the Thurab declaration, PX-A, and all exhibits, PX-A-1 through PX-A-5 and PX-B) is therefore STRICKEN pursuant to Fed. R. Civ. P. 37(c)(1).

U.S. Bank's non-compliance with discovery obligations is fatal to its request for summary judgment. As the movant, U.S. Bank must identify the evidence and portions of the record that allegedly “demonstrate the absence of a genuine issue of material fact.” See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Only if that showing is made would the burden shift to Lindsey to show that a genuine issue of material fact exists. See id. at 322; see also, e.g., Hines v. Wells Fargo Bank, N.A., 2014 WL 897805, at *3 (S.D. Tex. Mar. 6, 2014) (noting these burdens “are the same for the movant and nonmovant” when a plaintiff moves for summary judgment).

Because U.S. Bank's evidence must be stricken, U.S. Bank cannot satisfy its initial burden to show the absence of a genuine issue of material fact. The burden does not shift to Lindsey to raise a fact question for trial. Accordingly, U.S. Bank's motion for summary judgment should be denied.

For the foregoing reasons, it is RECOMMENDED that Plaintiff U.S. Bank's motion for summary judgment (Dkt. 61) be DENIED.

The parties have fourteen days from service of this Report and Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to file timely objections will preclude appellate review of factual findings and legal conclusions, except for plain error. Ortiz v. City of San Antonio Fire Dep't, 806 F.3d 822, 825 (5th Cir. 2015).

Signed on January 23, 2025, at Houston, Texas.