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Foster v. United Rentals North America, Inc.

United States District Court, S.D. Texas, Corpus Christi Division

March 29, 2018

CLINTON S. FOSTER, Plaintiff,
v.
UNITED RENTALS NORTH AMERICA, INC.; dba UNITED RENTALS, INC., Defendants.

          SUPPLEMENTAL MEMORANDUM AND RECOMMENDATION

          JASON B. LIBBY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Clinton Foster alleges Defendant United Rentals (North America), Inc., his former employer, failed to pay him his earned commissions pursuant to a 2012 and 2013 Commission Policy and Commission Policy Acknowledgement and Agreement (“Commission Policy”) because a large number of contracts were coded incorrectly to the wrong sales representative.[1] Defendant asserts it did not breach the terms of the Commission Policy as Plaintiff was paid all commissions coded to him on contracts as of the invoice date as required by the Commission Policy.

         On December 29, 2017, Defendant filed the pending Motion for Summary Judgment. (D.E. 55). Plaintiff filed a response on January 18, 2018. (D.E. 58). Defendant filed a reply on January 22, 2018. (D.E. 60). On March 9, 2018, the undersigned entered a Memorandum and Recommendation (“M & R”) recommending this case be summarily dismissed. (D.E. 65). The undersigned recommended Plaintiff's evidence supporting his breach of contract claim, which included his own testimony and affidavit as well as the affidavit of his retained certified public account (“CPA”), W. Scott Turner, was insufficient to create a genuine dispute of material fact. (D.E. 65, Pages 13-16).

         On March 23, 2018, Plaintiff timely filed his objections, along with a request for the Court to consider additional evidence he asserts supports his allegation that Defendant failed to pay him for all of his earned commissions. On March 26, 2018, Defendant filed a response to Plaintiff's objections arguing this evidence should not be considered. (D.E. 77). The same day, the Court referred Plaintiff's breach of contract claim to the undersigned to determine the merit of Plaintiff's request to submit additional evidence and, if considered, whether that evidence requires a different disposition of the claim. (D.E. 78).[2] After this referral, the parties each submitted additional briefing and/or exhibits. (D.E. 79 to D.E. 127).

         Having reviewed the parties' arguments, the additional evidence and the relevant case law, the undersigned recommends Plaintiff's request to submit additional evidence be DENIED and that, even if the additional evidence was considered in combination with Plaintiff's previously submitted evidence supporting his breach of contract claim, Plaintiff has not presented sufficient evidence to create a genuine issue of material fact.

         “When a party presents new evidence for the first time in objections to a United States magistrate judge's report and recommendation, two important judicial imperatives clash: the need to bring litigation to an end and the need to render just decisions on the basis of all the facts.” Cheatam v. Blanda, No. 1:08-cv-299, 2010 WL 2209207, at *1 (E.D. Tex. May 27, 2010) (citation omitted). Therefore, the Court has discretion to consider evidence offered for the first time in an objection to an M & R. Performance Autoplex II LTD. v. Mid-Continent Cas. Co., 322 F.3d 847, 862 (5th Cir. 2003) (citing Freeman v. Cty. of Bexar, 142 F.3d 848, 852 (5th Cir. 1998) (While “the district court need not reject newly proffered evidence simply because it was not presented to the magistrate judge…[l]itigants may not…use the magistrate judge as a mere sounding-board for the sufficiency of evidence.”) In exercising such discretion, the Court may consider several factors including:

(1) the moving party's reasons for not originally submitting the evidence;
(2) the importance of the omitted evidence to the moving party's case;
(3) whether the evidence was previously available to the non-moving party when it responded to the summary judgment motion; and
(4) the likelihood of unfair prejudice to the non-moving party if the evidence is accepted.

Id. (citing Freeman, 142 F.3d at 853). Plaintiff requests the Court consider: (1) the March 23, 2018 affidavit of W. Scott Turner, Plaintiff's retained CPA, as well as several of the affidavit's attached exhibits which he contends show miscoded invoices (D.E. 76- 1, D.E. 76-2 and D.E. 76-3)[3]; and (2) excerpts of deposition testimony from the February 10, 2017 deposition of Mr. Doug Hayungs, Plaintiff's former branch manager. (D.E. 76-4).[4]

         Plaintiff argues the Court should consider the additional affidavit from Mr. Turner dated March 23, 2018 because Mr. Turner was unable to render a final, detailed opinion in this case because Defendant failed “to timely produce accurate, readable information” and “[s]ome of the information produced by Defendant was admittedly wrong, duplicative, internally inconsistent, voluminous, and formatted in such a way that Plaintiff was forced to hire an information technology specialist to reformat the data so that it was usable to Plaintiff.” (D.E. 76, Page 5). To support this assertion, Plaintiff attaches a January 13, 2017 letter sent to Defendant outlining what Plaintiff found to be deficient in Defendant's discovery production. (D.E. 76-5, Pages 1-2). Plaintiff also alleges the delay was caused because Mr. Turner received new information after the Defendant's expert's January 17, 2017 deposition was taken that was needed to finalize his own opinion. (D.E. 76, Page 6). Plaintiff further asserts the unfair prejudice to Defendant is minimal because Defendant has already been preparing for trial, which is set for April 16, 2018, and Mr. Turner's expert report was produced to Defendant earlier this month. (D.E. 76, Pages 6-7). Plaintiff also contends that without this additional evidence, the Court will likely grant Defendant's pending Motion for Summary Judgment. (D.E. 76, Page 6).

         The undersigned recommends Plaintiff's reasons for not originally submitting the additional information contained in Mr. Turner's most recent affidavit are unpersuasive and the evidence was previously available to Plaintiff when he responded to the summary judgment motion. The evidence submitted by Plaintiff that Defendant's discovery production was somehow deficient, namely the letter to defense counsel, is dated January 13, 2017, nearly a year before Plaintiff submitted his January 18, 2018 response to the pending motion for summary judgment. (D.E. 76-5, Pages 1-2 and D.E. 58). Further, Plaintiff asserts he obtained additional important information from Defendant's expert's January 17, 2018 deposition requiring the submission of Mr. Turner's additional affidavit. However, Plaintiff does not identify what this important information was and, as noted by the District Judge, Plaintiff's summary judgment response filed the day after this deposition, on January 18, 2018, does not request additional time to obtain necessary discovery or seek other relief as permitted by Federal Rule of Civil Procedure 56(d). (D.E. 78, Page 3). Additionally, while Mr. Turner's most recent affidavit now provides some of his methodology for concluding 5, 451 invoices were miscoded, Defendant produced the evidence used by Mr. Turner to Plaintiff on August 22, 2016 and February 24, 2017, respectively.[5] (D.E. 76-1, Page 3; D.E. 79, Page 3; D.E. 127, Pages 1-2 and D.E. 127-1, Pages 6, 8-9 and 14). Further, Plaintiff fails to provide any sufficient reason why he did not seek to supplement his response before the undersigned's March 9, 2018 M & R recommending summary dismissal on all claims was entered or why he failed to include deposition transcript pages from Mr. Hayungs February 10, 2017 deposition in his summary judgment response filed almost a year later. (D.E. 76-4).

         The undersigned also recommends there is a likelihood of unfair prejudice to Defendant if Mr. Turner's latest affidavit and supporting exhibits are accepted because trial in this matter is currently set in less than one month, Mr. Turner's deposition was taken over two months ago, on January 16, 2018, and Plaintiff's expert ...


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