Commercial Litigation and Arbitration

Rule 37(c)(1) Sanctions — Summary Judgment Declarations from Witnesses Not Disclosed Per 26(a)(1) Properly Stricken — Mentioning Them in Interrogatory Answers Insufficient

Benjamin v. B & H Education, Inc., 2017 WL 6460087 (9th Cir. Dec. 19, 2017):

Plaintiffs are students of cosmetology and hair design at schools in California and Nevada operated by defendant B&H Education, Inc., under the name of Marinello Schools of Beauty. Plaintiffs claim that they are employees within the meaning of the Fair Labor Standards Act (“FLSA”), and under California and Nevada state law, on the ground that much of their time is spent in menial and unsupervised work, and that they are therefore entitled to compensation. The District Court granted summary judgment for B&H on the FLSA claim, holding that under the test applicable to such claims, the Plaintiffs, not the schools, are the primary beneficiaries of their own labors because at the end of their training they qualify to practice cosmetology. Moreover, state law requires clinical training that includes maintenance of a clean and sanitary work environment and does not require that all client work be supervised. The District Court also granted summary judgment for B&H on Plaintiffs’ claims under California and Nevada state law. We affirm.




IV. Federal Rule of Civil Procedure 37

The final matter we must address is a discovery dispute. Plaintiffs offered three declarations to support their motion for summary judgment, but they came from witnesses who had not been listed as witnesses pursuant to Rule 26. The court struck the declarations as a sanction under Rule 37(c)(1). The District Court’s order was not an abuse of discretion. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105–06 (9th Cir. 2001) (reviewing the imposition of a Rule 37 discovery sanction for abuse of discretion).

Plaintiffs argue that they identified one of the witnesses in an interrogatory response’s catchall reference to “other current and former Student-Employees of Marinello,” but this does not satisfy the requirements for a Rule 26 disclosure. See Fed. R. Civ. P. 26(a)(1)(A)(i) (requiring parties to disclose “the name and, if known, the address and telephone number 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”). For the other two witnesses, Plaintiffs argued that they mentioned the witness names in an interrogatory response, but this was also insufficient. See Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 72–73 (E.D.N.Y. 2012) (collecting cases holding that mentioning a witness’ name in an interrogatory response is insufficient for Rule 26 purposes).

*9 Plaintiffs have not shown that their failure to disclose was substantially justified or harmless, as required under Rule 37(c)(1), when they waited until the motion for summary judgment stage to identify likely witnesses. Luke v. Family Care & Urgent Med. Clinics, 323 Fed.Appx. 496, 498–99 (9th Cir. 2009); Yeti by Molly, Ltd., 259 F.3d at 1105–07; see also Medina v. Multaler, Inc., 547 F.Supp.2d 1099, 1105 n.8 (C.D. Cal. 2007) (“[F]ailure to disclose ... a likely witness before defendants’ summary judgment motion was filed prejudiced defendants by depriving them of an opportunity to depose him.”). There was no error in the District Court’s refusal to consider the declarations.

Finally, however, even if the stricken witness declarations had been considered, they would in all likelihood have made no material difference to the District Court’s ruling on the summary judgment motions. The information contained in the witness declarations added little more than colorful illustration to the allegations of the complaint that were inadequate as a matter of law to make out an employment relationship.***

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