Case: 16-16831 Date Filed: 10/23/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
______________________
No. 16-16831
______________________
D.C. Docket No. 5:13-cv-00110-LGW-RSB
JULIAN RIGBY,
GEORGIA/FLORIDA TOBACCO EXCHANGE, INC.,
Itself and d.b.a. Tennessee Valley Tobacco Services,
Plaintiffs – Appellants,
versus
PHILIP MORRIS USA INC.,
ALTRIA CLIENT SERVICES, INC.,
Defendants – Appellees.
_______________________________
Appeal from the United States District Court
for the Southern District of Georgia
_______________________________
(October 23, 2017)
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Before JULIE CARNES and JILL PRYOR, Circuit Judges, and ANTOON, ∗
District Judge.
PER CURIAM:
Plaintiffs Julian Rigby and Georgia Florida Tobacco Exchange, Inc. sued
Defendants Philip Morris USA, Inc. and Altria Client Services, Inc., alleging
breach of contract, promissory estoppel, and fraud 1 after disputes arose during the
course of the parties’ dealings regarding grading, buying, and selling tobacco. The
district court entered an order granting Defendants’ motion for summary judgment
after excluding—based on untimely disclosure—affidavits from five of Mr.
Rigby’s fellow growers and graders. On appeal, Plaintiffs challenge both the
grant of summary judgment and the exclusion of the affidavits. But the district
court did not abuse its discretion by excluding the affidavits, without which there
were no disputed material facts precluding summary judgment. Thus, we affirm.
Federal Rule of Civil Procedure 26 prescribes the time and method of
disclosure required in the district court. Parties are required to disclose the name
and identifying information of persons “likely to have discoverable information –
along with the subjects of that information—that the disclosing party may use to
support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). With a few
∗
Honorable John Antoon II, United States District Judge for the Middle District of
Florida, sitting by designation.
1
In addition to these claims, Plaintiffs’ amended complaint asserted price fixing and
additional promissory estoppel claims; however, these were dismissed by the district court for
failure to state a cause of action.
2
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exceptions, none of which applies here, the initial disclosures must be made “at or
within 14 days after the parties’ Rule 26(f) conference.” Fed. R. Civ. P.
26(a)(1)(C). Additionally, the disclosing party has a continuing duty to
supplement its disclosure upon learning that a previous disclosure was incomplete
or incorrect. Fed. R. Civ. P. 26(e)(1)(A).
In the event a party fails to disclose a witness as required by Rule 26, that
“party is not allowed to use that information or 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) (emphasis added). We review a district court’s
decision to exclude affidavits for failure to make timely disclosure for abuse of
discretion. Evans v. Books-A-Million, 762 F.3d 1288, 1295 (11th Cir. 2014). And
in determining whether that test has been met, we “consider the explanation for the
failure to disclose the witness, the importance of the testimony, and the prejudice
to the opposing party.” Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v.
Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 780 (11th Cir. 1982) (citation
omitted).
Plaintiffs failed to disclose witnesses as required by Rule 26. In their initial
Rule 26(a) disclosure, Plaintiffs listed only Roger Davis—one of the five growers
and graders— as a person likely to have discoverable information, but they did so
by name only. Plaintiffs thus failed to describe “the subjects of that information”
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or the means of contacting Davis. Fed. R. Civ. P. 26(a)(1)(A)(i). Plaintiffs’ failure
to disclose the contact information was perhaps excusable, but the failure to
include a description of the witness’s discoverable information was not.
Defendants were not required to blindly search for suit-related information that
Plaintiffs possessed but failed to disclose.
Although Plaintiffs supplemented their disclosure and identified the other
four growers and graders as possible witnesses, they did so only after the discovery
period had ended and Defendants had filed their motion for summary judgment.
When Plaintiffs offered affidavits from all five in opposition to the summary
judgment motion, Defendants moved to exclude the proffered affidavits. The
district court did not abuse its discretion in excluding the affidavits. Plaintiffs
failed to offer a reason why they could not have discovered earlier and timely
disclosed the identities of the affiants and the subjects of the information they
possessed. Thus, the failure to disclose was not substantially justified. Nor was
the nondisclosure harmless: Even if, as Plaintiffs argue, Defendants knew
Plaintiffs’ witnesses from prior dealings in the tobacco business, Defendants did
not know that Plaintiffs intended to use information they possessed.
We review a grant of summary judgment de novo. Johnson v. Booker T.
Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000). All factual
inferences are viewed in a light most favorable to the non-moving party. Id.
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Based on our careful review of the record, we conclude that without the contested
affidavits, no issues of material fact existed precluding summary judgment. See
Ellis v. England, 432 F.3d 1321, 1325–26 (11th Cir. 2005). Thus, the district court
did not err in granting Defendants’ motion for summary judgment.
AFFIRMED.
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