United States District Court, S.D. Texas, Corpus Christi Division
CLINTON S. FOSTER, Plaintiff,
UNITED RENTALS NORTH AMERICA, INC.; dba UNITED RENTALS, INC., Defendants.
SUPPLEMENTAL MEMORANDUM AND RECOMMENDATION
B. LIBBY UNITED STATES MAGISTRATE JUDGE.
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. 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.
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
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). After this referral, the
parties each submitted additional briefing and/or exhibits.
(D.E. 79 to D.E. 127).
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.
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
(3) whether the evidence was previously available to the
non-moving party when it responded to the summary judgment
(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); and (2) excerpts of deposition testimony
from the February 10, 2017 deposition of Mr. Doug Hayungs,
Plaintiff's former branch manager. (D.E.
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).
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. (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).
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 ...