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                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 15-13822
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:13-cv-00605-WS-C



VONEKA Q. NETTLES,

                                                                    Plaintiff,


CEDRIC GOODLOE,

                                                          Plaintiff-Appellant,

                                 versus


DAPHNE UTILITIES,

                                                         Defendant-Appellee.

                     ________________________

              Appeal from the United States District Court
                 for the Southern District of Alabama
                     ________________________

                            (May 11, 2017)
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Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      Cedric Goodloe, through counsel, appeals the district court’s denial of his

motion for sanctions and for a new trial in his employment discrimination suit

brought under 42 U.S.C. §§ 1981 and 1983. He also contends the district court

erroneously allowed the defendant, Daphne Utilities, to amend the joint pretrial

document to include six new exhibits. We address each issue in turn.

                                    I. DISCUSSION

A. Sanctions

      Goodloe first asserts the district court abused its discretion by failing to

sanction opposing counsel for intentionally using an invalid subpoena to access his

confidential employment records from his former employer, Hargrove

Engineering, nearly five months after discovery had closed and without notice to

Goodloe. Through this subpoena, Daphne Utilities obtained an EEOC charge

Goodloe had filed against Hargrove, and Daphne Utilities used the EEOC charge

to impeach Goodloe at trial.

      The district court did not abuse its discretion in denying any form of

sanction against Daphne Utilities and defense counsel. See Nicholson v. Shafe, 558

F.3d 1266, 1270 (11th Cir. 2009) (reviewing for abuse of discretion sanctions

under 28 U.S.C. § 1927); United States v. Samaniego, 345 F.3d 1280, 1284 (11th


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Cir. 2003) (reviewing for abuse of discretion sanctions under Fed. R. Civ. P.

16(f)); BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1048

(11th Cir. 1994) (reviewing for abuse of discretion sanctions under Fed. R. Civ. P.

37). First, nothing in the record suggests Daphne Utilities’ conduct was

tantamount to bad faith, such that sanctions under § 1927 are warranted. See 28

U.S.C. § 1927 (providing if an attorney unreasonably and vexatiously multiplies

the proceedings in a case, the court may require the attorney to pay the excess

costs, expenses, and attorney’s fees incurred because of such conduct); Amlong &

Amlong P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007) (stating an

attorney multiplies the proceedings through unreasonable and vexatious conduct

only when the attorney’s conduct is tantamount to bad faith). Second, though there

is no dispute that Daphne Utilities violated the scheduling order by issuing the

subpoena, the district court did not abuse its discretion in determining sanctions

were not warranted under Rule 16, as Daphne Utilities’ misconduct did not result

in additional cost to Goodloe. See Fed. R. Civ. P. 16(f)(1)(C) (allowing for

sanctions where, inter alia, a party fails to obey a scheduling order); Samaniego,

345 F.3d at 1284 (explaining district courts have discretion to decide whether there

has been a pattern of delay or deliberate refusal to comply with court orders that

warrants a sanction); Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)

(stating Rule 16(f) sanctions are intended to punish lawyers and litigants for


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conduct that unreasonably delays or interferes with the expeditious management of

trial preparation). Any additional cost Goodloe was required to expend could have

been prevented had he timely objected to the admission of the evidence during

trial. Finally, Daphne Utilities did not violate Rule 26(a) by failing to disclose the

Hargrove EEOC charge, such that sanctions are not warranted. Fed. R. Civ. P.

26(a)(3)(A)(iii) (requiring the parties to identify before trial any document or

exhibit it expects to offer at trial, unless the evidence is presented solely for

impeachment). Daphne Utilities disclosed its intention to use the document as an

exhibit at trial, as it included the Hargrove EEOC charge in its exhibit list in the

joint pretrial document.

B. Amendment to Exhibit List

      Goodloe contends the district court abused its discretion by allowing Daphne

Utilities, after the close of discovery, to amend its pre-trial disclosures to include

six exhibits that had not been previously disclosed to Goodloe. These exhibits

were reports of ledger payroll and benefits accounts Goodloe worked with, and

they contained handwritten notations where other employees had corrected

Goodloe’s errors. Daphne Utilities presented this evidence at trial to show that

Goodloe’s work did not meet standards. Goodloe asserts Daphne Utilities offered

no reason as to why the exhibits were not included in its earlier filings and that he

was prejudiced by Daphne Utilities’ failure to disclose these exhibits.


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      The district court did not abuse its discretion in determining that Daphne

Utilities’ failure to include the six additional documents in its initial discovery did

not warrant exclusion. See Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir.

1997) (reviewing a district court’s ruling regarding discovery for abuse of

discretion). First, although Daphne Utilities did not include these documents in its

initial disclosures, nothing in the record suggests that it failed to perform sufficient

investigation prior to submitting its initial disclosures, such that it violated Rule

26(a). See Fed. R. Civ. P. 26(a)(1)(E) (providing a party must make its initial

disclosures based on reasonably available information, and a party’s failure to fully

investigate a case does not excuse it from making the disclosures). Second, even if

Daphne Utilities violated Rule 26 disclosure requirements, exclusion was not

warranted as the failure to disclose was harmless. See Fed. R. Civ. P. 37(c)(1)

(providing where a party fails to provide this information, the party is not allowed

to use that information at trial unless the failure was substantially justified or is

harmless). Daphne Utilities made clear in its summary judgment motion that it

planned to assert that Goodloe was terminated based on his performance issues,

such that Goodloe was on notice that his performance would be an issue at trial.

C. New Trial

      Goodloe asserts a new trial is warranted based on the misconduct of defense

counsel for Daphne Utilities in obtaining Goodloe’s confidential personnel records


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from his prior employer, Hargrove Engineering, through “trickery and deceit.” He

argues new trials have been granted by federal courts due to attorney misconduct,

and defense counsel’s use of the improperly obtained EEOC charge Goodloe had

filed against Hargrove clearly affected the trial, as it strengthened Daphne Utilities’

case.

        The district court did not abuse its discretion in denying Goodloe’s motion

for a new trial. See Lambert v. Fulton Cty., Ga., 253 F.3d 588, 595 (11th Cir.

2001) (reviewing the district court’s denial of a motion for a new trial for abuse of

discretion). First, as the district court determined, the record in this case does not

support that defense counsel acted maliciously or with bad faith in improperly

obtaining the subpoena. Goodloe’s argument, that the late issuance of the

subpoena was tactical and malicious, is simply conjecture. Moreover, to the extent

he is arguing the admission of the document was an evidentiary error warranting a

new trial, his failure to object to its admission at trial is fatal to his claim. See

Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1349 (11th Cir. 2007) (explaining a

verdict will be reversed based on an evidentiary ruling only where a party can

establish, inter alia, that it adequately preserved its claim).

                                  II. CONCLUSION

        The district court did not abuse its discretion in refusing to sanction Daphne

Utilities bases on violations of the court’s scheduling order, in permitting Daphne


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Utilities to amend the joint pretrial document to include six additional exhibits, or

in denying Goodloe’s motion for a new trial. We affirm the district court.

      AFFIRMED.




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