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Holcombe v. United States

United States District Court, W.D. Texas, San Antonio Division

November 5, 2019




         On this 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.


         This 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.

         Due to 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.

         Throughout 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).

         Despite 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 becomes available.

ECF No. 143-1.

         Because 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.


         According 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(g)(3).[1]

         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).

         In its 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 ...

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