United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
day the Court considered Defendant United States of
America's Motion to Reconsider Sanctions (ECF No. 155)
and Plaintiffs' Response (ECF No. 156). For the reasons
stated below, the Court DENIES the Motion.
case began well over a year ago when Plaintiffs Joe and
Claryce Holcombe filed their Complaint against the United
States of America (“United States” or
“Government”) on June 6, 2018. ECF No. 1.
Plaintiffs are the surviving parents of Decedent John Bryan
Holcombe, a victim of the mass shooting that occurred on
November 5, 2017 in Sutherland Springs, Texas. The case
brought by the Holcombes is but the first-filed of many
similar cases, consolidated here, brought by family members
and representatives of deceased victims as well as survivors
of the shooting, seeking damages against the United States
under the Federal Tort Claims Act. The thrust of these
lawsuits is that the shooter, Devin Kelley, should not have
been able to purchase firearms, but failures by the United
States Air Force and the Department of Defense to collect,
handle, and report required information allowed him to do so.
the complexity of this case, the Court was lenient in
imposing and enforcing a deadline for the Government to file
its answer and allowing the Government to file and brief its
motion to dismiss. See ECF No. 27 at 29.
Accordingly, the Government did not file its motion to
dismiss until November 2, 2018 (ECF No. 28) and briefing was
not complete on the motion until March 21, 2019 (ECF No. 52).
The Court held a hearing on the motion to dismiss on May 14,
2019, and issued its order granting in part and denying in
part the motion on May 23, 2019. See ECF Nos. 53,
54, 57, 59. That order made clear that discovery in this case
was to resume, and the Court directed the parties to confer
and submit a proposed scheduling order and Rule 26(f) report
by June 13, 2019. ECF No. 59 at 40. The parties timely
submitted their Rule 26(f) report. ECF No. 91.
this litigation, the Court has emphasized many times over the
parties' obligations under Federal Rules of Civil
Procedure 1, 16, and 26 to meaningfully meet and confer, to
exchange information, and to stipulate to agreed upon facts.
See, e.g., ECF No. 18 (setting this case for a
status conference on Oct. 12, 2018, and instructing the
parties to submit a listing of agreed-upon facts or be
prepared to discuss why it believes a stipulation cannot be
made); ECF No. 27 at 8-10 (advising the Government of its
Rule 1 obligations at all stages of litigation and
admonishing its inability to submit agreed-upon facts); ECF
No. 134 (setting this case for a Rule 16 Conference on Sept.
25, 2019, ordering the parties to provide the Court with all
Rule 26(a)(1) disclosures previously served and to complete
such disclosures prior to the hearing if not yet completed).
the mandates of the Federal Rules and the express
admonishments and orders of this Court, the Government
appeared before this Court on September 25, 2019 still having
disclosed no names of any individuals likely to have
discoverable information as required under Rule 26(a)(1)(A).
See ECF No. 148 at 5 (admitting the Government has
not disclosed any witnesses pursuant to its initial
disclosures under Rule 26(a)(1)). In its disclosures filed
with the Court on September 20, 2019, the United States
responded to Rule 26(a)(1)(A)'s inquiry of the
“name…of each individual likely to have
discoverable information…that the defendant may use to
support its defenses” by stating:
Defendant United States is still in the process of
identifying individuals it may rely on to support its
defenses. The United States reserves the right to identify
and call as witnesses at trial any persons who may be
identified through ongoing investigation and discovery.
Discovery is ongoing and Defendant reserves its right to
supplement these disclosures as additional information
ECF No. 143-1.
of the Government's failure to disclose any names in its
Rule 26(a)(1) disclosures, this Court imposed sanctions on
the United States under Rule 26(g)(3) and ordered the United
States to pay the attorneys' fees for the duration of
time Plaintiffs' counsel spent at the September 25, 2019
hearing. ECF No. 148 at 6. The United States now moves this
Court for reconsideration of the sanctions imposed against it
by this Court.
to the United States, it “did not intend to frustrate
the Court or impede discovery in any way.” ECF No. 155
at 2. Regardless of its intent, the Government has failed to
fulfill its obligations under Rule 26(a)(1) and has not
presented substantial justification to excuse its failures,
and sanctions are warranted against it under Rule
26(a)(1) requires that “a party must, without awaiting
a discovery request, provide to the other parties…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.” Fed.R.Civ.P.
26(a)(1)(A). Rule 26(g)(1) requires that every disclosure
made under Rule 26(a)(1) be signed by at least one attorney
of record, and that by signing that attorney “certifies
that to the best of the person's knowledge, information,
and belief formed after a reasonable inquiry” that the
disclosure “is complete and correct as of the time it
is made.” Fed.R.Civ.P. 26(g)(1). Under Rule 26(g)(3), a
court may, on motion or on its own, impose an appropriate
sanction if a certification of completeness and correctness
violates the Rule “without substantial
justification.” Fed.R.Civ.P. 26(g)(3).
motion for reconsideration, the Government claims that it
provided no names in its Rule 26(a)(1) disclosures because
“Rule 26(a)(1) did not require that the United
States' initial disclosures contain the names of all
persons with relevant information, as the Court suggested,
” and “[b]ecause the United States does not
currently intend to use any of [the witness names sought by
Plaintiffs] to support its defenses, Rule 26(a)(1) did not
require their disclosure.” ECF No. 155 ...