United States District Court, M.D. Florida, Fort Myers Division
DONELL L. TILLMAN, individually and on behalf of all others similarly situated, Plaintiff,
ALLY FINANCIAL INC., Defendant.
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on plaintiff's sealed,
unredacted Motion for Summary Judgment (Doc. #178)
filed on November 24, 2017. Defendant filed an Unredacted
Response in Opposition (Doc. #183) on December 6, 2017. For
the reasons set forth below, the Motion is denied as moot and
discovery will be re-opened.
a consumer-protection case arising from the receipt of
autodialed calls to a cellular phone without consent. On
April 28, 2016, plaintiff Donell L. Tillman (plaintiff or
Tillman), on behalf of himself and all others similarly
situated, filed a one- count class-action complaint, alleging
that defendant Ally Financial, Inc. (defendant or Ally)
violated the Telephone Consumer Protection Act (TCPA), 47
U.S.C. § 227, by placing unauthorized calls to his
cellular phone using an "automatic telephone dialing
system" (ATDS). (Doc. #1.) As relevant here, the TCPA
makes it unlawful for "any person/' absent the
"prior express consent of the called party, " to
make any non-emergency call "using automatic telephone
dialing system or an artificial or prerecorded voice. . . to
any telephone number assigned to a . . . cellular telephone
service[.]" 47 U.S.C. § 227(b) (1) (A) (iii) .
Court previously denied class certification (Docs. ##160,
174), but also found that plaintiff had constitutional and
statutory standing at both the dismissal and summary judgment
stages (Docs. ##58, 141). Plaintiff, now proceeding on his
individual case only, moves for summary judgment, arguing
that there is no genuine issue of material fact as to whether
Ally placed sixty-six (66) calls to plaintiff in violation of
the TCPA. Plaintiff also requests that the Court find that
the violations were made "willfully and knowingly,
" entitling plaintiff to treble damages. 47 U.S.C.
Federal Rule 26 Disclosures
initial matter, the Court considers Ally's argument that
the majority of the evidence and witnesses plaintiff provided
in support of his summary judgment motion (specifically,
Docs. ##178-1, 178-3, 175-4, 175-5, 175-8, 175-10, and
175-11) were not previously disclosed, in violation of
Federal Rule of Civil Procedure 26(a) and (e) . Ally states
that the only witness previously disclosed by plaintiff was
plaintiff himself. See Doc. #183-2. Therefore, Ally
requests that the Court exclude the undisclosed evidence and
thereafter deny summary judgment due to lack of any
supporting evidence. Plaintiff did not seek to reply to
Ally's allegations, nor provide any justification for
failing to disclose the documents and witnesses.
Rule 26 requires the parties to disclose the names of all
people likely to have discoverable information and a copy of
all documents the party may use to support its claim.
Fed.R.Civ.P. 26(a)(1) (A)-(B). The rule does not require
disclosure of documents or the names of people that will be
used "solely for impeachment." Id. 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 witness to supply evidence on a
motion, at a hearing, or at trial, unless the failure was
substantially justified or is harmless. Fed.R.Civ.P. 37(c);
Murdick v. Catalina Marketing Corp., 496 F.Supp.2d
1337, 1347 (M.D. Fla. 2007) (citation omitted).
Rule 37(c)(1) provides that the Court can strike
Tillman's references to the evidence and can prevent
Tillman from relying on the undisclosed evidence in a motion
or at trial; however, exclusion is not mandatory. Rule
37(c)(1) provides that instead of sanctioning a party by
excluding evidence, the Court may impose other appropriate
sanctions. Those sanctions include awarding, upon motion,
reasonable expenses and attorney's fees incurred because
of the discovery violation. Fed. R. Civ. P 37(c)(1)(A).
See also Bearint ex rel. Bearint v. Dorell Juvenile
Group, Inc., 389 F.3d 1339, 1348-49 (11th Cir. 2004).
Eleventh Circuit considers three factors when reviewing a
district court's decision to exclude previously
undisclosed evidence under Rule 37: (1) the importance of the
evidence; (2) the reason for the party's failure to
disclose the evidence earlier; and (3) the prejudice to the
opposing party if the evidence is considered.
Bearint, 389 F.3d at 1353; Cooley v. Great S.
Wood Preserving, 138 Fed.Appx. 149, 160-61 (11th Cir.
2005) . Because plaintiff has not replied to this issue, the
Court will only consider factors one and three when
considering whether to strike the evidence.
Deposition Testimony and Documents
Court has reviewed the evidence at Docs. ##178-1, 178-3,
178-4, 178-5, 175-8, 175-10, and 175-11, and finds that the
nondisclosure will not cause harm to, nor unfairly prejudice
Ally. Ally cannot claim unfair surprise since it knew about
the existence of the depositions (indeed, Ally's counsel
was present at, and defended the depositions), and due to the
Bates stamps, the documents appear to be documents that were
produced by Ally. Ally also has not shown how it has incurred
additional costs or expenses due to the non-disclosure that
it would not have incurred otherwise. Therefore, this
evidence will not be excluded.
Number of Calls Identified in Plaintiff's Discovery
next argues that plaintiff cannot submit any evidence or seek
recovery for any alleged TCPA violations other than the 22
calls he identified in his interrogatory responses. Plaintiff
claims for the first time in his Motion for Summary Judgment