              Case: 19-10229    Date Filed: 08/07/2019    Page: 1 of 11


                                                           [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-10229
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 4:16-cv-00314-HLM

UNITED STATES OF AMERICA,
upon the relation and for the use and benefit of
Tennessee Valley Authority,

                                                     Plaintiff - Appellee,


versus

AN EASEMENT AND RIGHT-OF-WAY OVER 4.42 ACRES OF LAND,
MORE OR LESS, IN WHITFIELD COUNTY, GEORGIA,

                                                     Defendant,

JOHN B. POSTELLE,

                                                     Defendant - Appellant.

                           ________________________

                   Appeals from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                  (August 7, 2019)
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Before TJOFLAT, ROSENBAUM, and EDMONDSON, Circuit Judges.



PER CURIAM:



      In this eminent domain action, John Postelle appeals the final judgment

following a jury verdict and appeals the district court’s denial of Postelle’s motion

for a new trial. Postelle’s chief argument on appeal is that the district court abused

its discretion by -- pursuant to Fed. R. Civ. P. 37(c)(1) and the district court’s local

rules -- excluding Postelle’s expert-witness testimony. No reversible error has

been shown; we affirm.



I.    Background



      This appeal stems from a project by the Tennessee Valley Authority

(“TVA”) to construct and to maintain a new electric power transmission line in

Gordon and Whitfield Counties, Georgia. In 2016, TVA filed this eminent domain

action to acquire a permanent easement and right-of-way across 4.42 acres of a

127.75-acre parcel owned by Postelle. The sole issue for trial was a determination

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of the amount of just compensation to which Postelle was entitled as a result of the

taking.

       The district court issued a Scheduling Order establishing discovery

deadlines, including dates on which each party was required to make expert

disclosures, in accordance with Fed. R. Civ. P. 26(a)(2). On 29 June 2017 (the

deadline for Postelle’s Rule 26(a)(2) expert disclosures), Postelle filed a motion

seeking an extension of the expert disclosure deadline. Among other reasons,

Postelle said an extension was necessary to allow Postelle’s expert time to review

TVA’s responses to Postelle’s recently-served discovery requests before the expert

prepared his written report. At no time did Postelle seek to extend the close of

discovery, scheduled for 20 November 2017.1

       The district court granted Postelle’s motion and issued the order proposed by

Postelle, which set forth these new expert disclosure deadlines:

       a. [Postelle’s] Expert Disclosures: 30 days after [TVA] provides the
          information requested in [Postelle’s] June 23, 2017 discovery
          requests;




1
  In his reply brief, Postelle characterizes his failure to seek an extension of the close of
discovery as an “oversight” or a “scrivener’s error” that should have been noticed and corrected
by the district court. No; we reject this argument as entirely without merit. Moreover, to the
extent Postelle attempts to raise this argument (and other arguments) for the first time in his reply
brief, they are not properly before us and will not be addressed on appeal. See Big Top Koolers,
Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).
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      b. [TVA’s] Expert Disclosures: 30 days after [Postelle’s] Expert
         Disclosures are due.

      On 25 August 2017, TVA responded to Postelle’s discovery requests. In its

notice of service, TVA stated that “[p]ursuant to the Order Modifying Scheduling

Order . . ., Postelle’s expert disclosures are due September 25, 2017.”

      On 22 September, Postelle’s lawyer sent an email to TVA’s lawyer in which

Postelle’s lawyer acknowledged that Postelle’s expert disclosures were due on 25

September and sought TVA’s consent to another extension. It appears that TVA’s

lawyer, however, refused to give unconditional consent. In response, Postelle’s

lawyer sent a second email (sent on the 25 September deadline), withdrawing the

earlier request for consent. Postelle’s lawyer asserted, instead, that -- because

TVA’s discovery responses were inadequate -- Postelle’s 30-day time period for

filing expert disclosures had not yet been triggered. Postelle, however, filed no

motion in the district court seeking another extension or an order compelling TVA

to respond more fully to Postelle’s discovery requests. Nor did Postelle file (in

whole or in part) his expert disclosures.

      Meanwhile, TVA filed its Rule 26(a)(2) expert disclosures on 25 October

2017. TVA also moved to exclude Postelle’s expert testimony -- pursuant to Fed.

R. Civ. P. 16(f)(1)(C) and 37(c)(1) -- on grounds that Postelle had failed to comply

with the court’s scheduling order and with Rule 26(a)(2).

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      On 5 December 2017, the district court granted TVA’s motion to exclude.

The district court rejected Postelle’s position that the 30-day deadline for filing

expert disclosures was never triggered. Because Postelle failed to comply with

both Rule 26(a)(2) and Local Rule 26.2C -- and failed to demonstrate that such

failure was substantially justified or harmless -- the district court determined that

exclusion of Postelle’s expert testimony was appropriate. The district court also

denied Postelle’s later motions (1) for reconsideration of the district court’s 5

December 2017 order and (2) to reopen and extend discovery, both of which

challenged the district court’s exclusion order.

      Following a three-day trial, the jury returned a verdict awarding Postelle

$35,000 in just compensation; the district court entered final judgment consistent

with the jury’s verdict. Postelle then moved unsuccessfully for a new trial,

challenging again the district court’s 5 December 2017 exclusion order.



II.   Discussion



      We review the district court’s rulings about discovery under an abuse-of-

discretion standard. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d

1292, 1306 (11th Cir. 2011). Our review of a ruling under Rule 37 “is sharply

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limited to a search for an abuse of discretion and a determination that the findings

of the trial court are fully supported by the record.” Serra Chevrolet, Inc. v. Gen.

Motors Corp., 446 F.3d 1137, 1146-47 (11th Cir. 2006) (quotation omitted).

“[U]nder the abuse of discretion standard, we will leave undisturbed a district

court’s ruling unless we find that the district court has made a clear error of

judgment, or has applied the wrong legal standard.” Josendis, 662 F.3d at 1307

(quotation omitted).

      “Federal Rule of Civil Procedure 26 requires that ‘a party must make expert

witness disclosures at the times and in the sequence [that] the court orders.’”

Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 717 (11th Cir. 2019) (alterations

omitted) (citing Fed. R. Civ. P. 26(a)(2)(D)). Under the initial disclosure

obligations in Rule 26(a)(1), a party must disclose only the name and address of

potential witnesses. Fed. R. Civ. P. 26(a)(1). Disclosure under Rule 26(a)(2),

however, “contemplates not only the identification of the expert, but also the

provision of a written report containing ‘a complete statement of all opinions’ and

‘the basis and reasons therefor.’” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir.

2008) (affirming the district court’s exclusion of an expert report for failure to

comply with Rule 26). “Because expert witness discovery rules are designed to

allow both sides in a case to prepare their cases adequately and to prevent surprise,

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compliance with the requirements of Rule 26 is not merely aspirational.” Id. at

1266.

        Congress has provided for “a self-executing sanction for failure to make a

disclosure required by Rule 26(a).” See Fed. R. Civ. P. 37(c)(1) advisory

committee’s note to 1993 amendment. Under Rule 37(c)(1), a party that “fails to

provide information or identify a witness as required by Rule 26(a) . . . is not

allowed to use that information or witness to supply evidence on a motion, at a

hearing, or at a trial, unless the failure was substantially justified or is harmless.”

Fed. R. Civ. P. 37(c)(1). We have said that “[c]ourts have broad discretion to

exclude untimely expert testimony . . ..” Guevara, 920 F.3d at 718 (upholding the

district court’s exclusion of an expert’s untimely-filed report).

        In a similar way, the district court’s local rule establishes these requirements

for expert disclosure:

        Any party who desires to use the testimony of an expert witness shall
        designate the expert sufficiently early in the discovery period to
        permit the opposing party the opportunity to depose the expert and, if
        desired, to name its own expert witness sufficiently in advance of the
        close of discovery so that a similar discovery deposition of the second
        expert might also be conducted prior to the close of discovery.

        Any party who does not comply with the provisions of the foregoing
        paragraph shall not be permitted to offer the testimony of the party’s
        expert, unless expressly authorized by Court order based upon a
        showing that the failure to comply was justified.

N.D. Ga. L.R. 26.2C (emphasis added).
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      As an initial matter, Postelle contends that the district court’s exclusion of

Postelle’s expert testimony was dispositive of Postelle’s claim for damages --

tantamount to a directed verdict or a dismissal with prejudice -- and, thus, required

a finding of willfulness or of bad faith. We disagree. Despite the exclusion order,

Postelle’s case proceeded to a jury trial during which Postelle was able to introduce

valuation evidence through cross-examination of TVA’s expert witness and

through his own testimony. At the close of Postelle’s evidence, the district court

denied TVA’s motion for judgment as a matter of law. The jury also awarded

Postelle damages in excess of the valuation evidence introduced by TVA. On this

record, we cannot conclude that the district court’s exclusion order constituted a

dispositive ruling requiring a bad faith showing. Cf. BankAtlantic v. Blythe

Eastman Paine Webber, Inc., 12 F.3d 1045, 1048-49 (11th Cir. 1994) (“Our

caselaw is clear that only in a case where the court imposes the most severe

sanction -- default or dismissal -- is a finding of willfulness or bad faith failure to

comply necessary.”).

      Postelle also contends that the district court relied improperly on an

erroneous factual finding: that Postelle failed entirely to identify an expert witness.

This contention is contradicted flatly by the record. That Postelle identified the

name of his proposed expert witness as part of his Rule 26(a)(1) initial disclosures

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is undisputed. The record makes clear, however, that the district court decided to

exclude Postelle’s expert testimony based on its determination that Postelle later

failed to fulfill his obligations under Rule 26(a)(2). The district court’s

determination is supported by the record. Among other things, Rule 26(a)(2)

requires a written report containing the expert’s opinions and the underlying basis

and reasons for that opinion: that Postelle filed no such written report is clear. Cf.

Reese, 527 F.3d at 1265 (explaining that providing an expert witness’s name was

insufficient to discharge a party’s disclosure obligation under Rule 26(a)(2) and

Local Rule 26.2C).

      The district court also abused no discretion in concluding that Postelle failed

to demonstrate substantial justification for his non-compliance with Rule 26(a)(2).

First, the discovery information Postelle sought from TVA was not critical to

forming an expert opinion about the fair market value of Postelle’s property. That

Postelle asserts that his proposed expert witness had in fact assessed the value of

Postelle’s damages before trial (and without the requested discovery from TVA)

bolsters that conclusion. The district court thus determined reasonably that a

written report for Postelle could have been prepared and filed by the established

deadline without taking account of the thoroughness of TVA’s responses to

Postelle’s discovery requests and, if necessary, the report might be supplemented

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later pursuant to Rule 26(e). See Reese, 527 F.3d at 1265-66 (concluding that a

party’s failure to comply with Rule 26(a)(2) was “unjustified and harmful” to the

non-moving party where the expert witness could have prepared a written report

based upon the then-available information and supplemented the report after

reviewing the later-provided discovery documents).

      Moreover -- to the extent Postelle considered essential the discovery sought

from TVA -- we agree with the district court that Postelle “could have and should

have” taken some affirmative act in the district court to pursue the disputed

discovery or to clarify or to extend the disclosure deadline. Instead, Postelle did

nothing other than to notify TVA’s lawyer of Postelle’s opinion that the

Scheduling Order’s 30-day time limit had not been triggered. That Postelle

decided unilaterally that his obligations under the Scheduling Order were not

triggered -- then did nothing more for three months -- is insufficient justification

for his non-compliance with Rule 26. See Guevara, 920 F.3d at 719 (no abuse of

discretion found where party engaged in unreasonable delay and filed a

supplemental report after the close of discovery without seeking leave of the court

or moving to extend discovery); Reese, 527 F.3d at 1266 (no abuse of discretion in

excluding expert report where party “could have filed a motion to extend the




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discovery period so as to permit a proper disclosure” and “offered no excuse for

failing to do so.”).

       Nor are we persuaded that the district court erred in concluding that TVA

would suffer harm or prejudice as a result of Postelle’s failure to comply with Rule

26(a)(2). 2 At the very least, Postelle’s failure to disclose timely his proposed

expert testimony denied TVA the opportunity -- before the close of discovery -- to

depose Postelle’s expert or to engage in meaningful discovery about the

information underlying the expert’s opinions. On this record, we cannot conclude

that the district court abused its discretion in excluding Postelle’s expert

testimony. 3

       AFFIRMED.




2
  We also note that a showing of harm or prejudice is seemingly unnecessary under the district
court’s local rules. See N.D. Ga. L.R. 26.2(C). Thus -- even absent a showing of prejudice -- the
district court might have had discretion to exclude Postelle’s expert testimony under its local
rules.

3
  We have also considered Postelle’s argument that the district court erred in denying his motion
to reopen discovery, pursuant to Fed. R. Civ. P. 6(b)(1)(B). This reopening decision is another
decision that is left to the broad discretion of the district court. On this record, we are
unconvinced that excusable neglect has been demonstrated that might justify a reopening of
discovery. In addition, we accept that TVA -- at a late stage -- would be prejudiced by having to
take the large number of depositions proposed by Postelle’s lawyer. That several months
remained between the close of discovery and the projected trial date is not outcome-
determinative. The district court abused no discretion in denying Postelle’s motion to reopen.
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