                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-14718         ELEVENTH CIRCUIT
                                                       MAY 06, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                          CLERK

                  D.C. Docket No. 08-00209-CV-T-23-EAJ

PETE'S TOWING CO., a Florida corporation,

                                                      Plaintiff-Appellant,

                                   versus

CITY OF TAMPA, FLORIDA, a municipal corporation,
STEPHEN HOGUE, City of Tampa Police Chief,
MICHAEL KITT, Sergeant,
JOSE PENICHET, Sergeant,


                                                      Defendants-Appellees.
                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                               (May 6, 2010)

Before EDMONDSON, BIRCH and COX, Circuit Judges.

PER CURIAM:
      Pete’s Towing Company contracted with business establishments operating

apartment complexes and other business establishments to tow and impound

trespassing vehicles. Pete’s also participated in a rotating tow list administered by

the Tampa Police Department; it towed vehicles upon request of the police

department, usually from accident scenes. The police department received a number

of complaints from vehicle owners alleging that Pete’s illegally towed and impounded

their vehicles.   According to Pete’s, police officers often responded to these

complaints by advocating for the vehicle owners and demanding that the vehicles be

released without charge. Pete’s also asserts that its employees were harassed,

threatened with arrest if they refused to release vehicles, and informed that the towing

company was under investigation, would be removed from the police towing rotation,

“put out of business,” or “shut down.”

      Pete’s filed complaints with the police department’s internal affairs office

regarding the harassment of its employees. A few months later, it was removed from

the tow rotation upon the recommendation of the police department’s

communications manager, who cited the high number of complaints by customers as

the basis for his recommendation. Pete’s asserts that after it was removed from the

towing rotation, “the level of harassment escalated,” and the company’s owners

secretly formed other towing companies operating out of separate facilities to avoid

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harassment from police officers. Once officers discovered that these companies were

owned and operated by the owners of Pete’s, it claims “the familiar pattern of

harassment” began against these companies as well.

      Pete’s brought this 42 U.S.C. § 1983 action against: the City of Tampa; Chief

of Police Steven Hogue; Sergeants Jose Penichet and Michael Kitts; Officers Orlando

Gudes, Patricia Lastra, Darryl Johnson, John Ricardo, and Johny Adkins; and

Assistant City Attorney Laurie Woodham. The Complaint alleged violations of the

towing company’s rights under the First and Fourteenth Amendment. All defendants

moved to dismiss, and Pete’s voluntarily dismissed, with prejudice, its claims against

Johnson and Ricardo. The court then dismissed claims against Gudes, Lastra,

Adkins, and Woodham; held Pete’s stated a claim for which relief could be granted

against Hogue, Penichet, and Kitts; and granted leave to amend the Complaint. Pete’s

filed an Amended Complaint, and later a Second Amended Complaint against the

City of Tampa, Hogue, Penichet, and Kitts. The Second Amended Complaint alleged

four counts: (I) violation of the towing company’s liberty interest; (II) a violation of

procedural due process; (III) a violation of equal protection; and (IV) First

Amendment retaliation.

      The district court entered a case management and scheduling order setting a

discovery deadline of November 1, 2008, and a deadline for dispositive motions of

                                           3
January 13, 2009. The motion deadline was ultimately extended to March 16, and on

that date Defendants filed a motion for summary judgment. On April 23, Pete’s filed

a response in opposition to summary judgment and filed affidavits of Ian McGeehan,

the company’s part-owner, and Alexis Torres, an employee of one of the other towing

companies owned and operated by the owners of Pete’s. Torres’s affidavit asserted

that on March 15, 2009, he was arrested as part of the ongoing campaign of

harassment by the police department. Prior to submitting the affidavit, Pete’s did not

identify Torres as a potential witness. In addition, McGeehan’s affidavit included

allegations that had not been previously disclosed to Defendants in response to

discovery requests. On the same day it filed its response to summary judgment,

Pete’s filed a motion to supplement or amend the complaint with the information

contained in the affidavits of Torres and McGeehan. The court denied this motion,

which did not seek to add additional causes of action or parties but merely additional

bases in support of the original claims, for undue delay and resulting prejudice to the

defendants.

      Defendants then filed a motion to strike Torres’s affidavit in its entirety,

portions of McGeehan’s affidavit that contradicted deposition testimony, and portions

of McGeehan’s affidavit that had not been previously disclosed. The district court

referred this motion and the motion for summary judgment to a magistrate judge for

                                          4
consideration. The magistrate judge recommended that the motion to strike be denied

as to the portion of McGeehan’s affidavit alleged to contradict deposition testimony,

but granted as to the portions of McGeehan’s affidavit not previously disclosed and

as to Torres’s affidavit. The magistrate judge also recommended that Defendants’

motion for summary judgment be granted. Over an objection by Pete’s, the district

court adopted the magistrate judge’s report and recommendation.

       Pete’s appeals. First, it contends that the court abused its discretion in granting

the motion to strike the affidavits. Second, Pete’s contends that the court erred by not

construing its motion to amend or supplement its complaint as a Federal Rule of Civil

Procedure 56(f) motion and by not sua sponte continuing the summary judgment

proceedings to permit supplementation of its Rule 26 disclosures. Third, Pete’s

contends that there was sufficient evidence notwithstanding the assertions in the

excluded affidavits to preclude the grant of summary judgment. (Appellant’s Br. at

21.)

       Federal Rule of Civil Procedure 26(a)(3) requires a party to disclose the

identity of a witness it expects to testify at trial. Rule 26(e) requires a party to

supplement disclosures or discovery responses in a timely manner if the party learns

that in some material respect the disclosures or responses are incomplete or incorrect

and if the corrective information has not otherwise been made known to the other

                                            5
party during the discovery process or in writing. Rule 37(c) provides that if a party

fails to provide information or identify a witness as required by Rule 26, the party is

not allowed to use that information or witness to supply evidence on a motion, at a

hearing, or at trial unless the nondisclosing party shows that the failure is

substantially justified or is harmless. Our review of a ruling under Rule 37 “is

sharply 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) (quotations and citation

omitted). In reviewing the exclusion of a non-disclosed witness, we consider “(1) the

importance of the testimony; (2) the reason for the appellant’s failure to disclose the

witness earlier; and (3) the prejudice to the opposing party if the witness had been

allowed to testify.” Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d

1339, 1353 (11th Cir. 2004) (citation omitted).

      We find no reversible error in the exclusion of the Torres affidavit and portions

of the McGeehan affidavit. The facts McGeehan attested to occurred between

October 2008 and March 2009, and the facts Torres attested to occurred one day prior

to the filing of Defendants’ motion for summary judgment. Pete’s filed the affidavits

with its summary judgment papers five-weeks after the filing of Defendants’ motion

and without first supplementing its disclosures to list Torres as a witness or disclose

                                           6
the information offered by McGeehan that had not been included in prior responses

to discovery requests. Pete’s offered the court no justification for its delay in

disclosing the information. And, because Defendants filed their summary judgment

papers prior to being informed of the facts attested to in the affidavits, Defendants

would have been prejudiced had the affidavits been considered. Therefore, we

conclude the court did not abuse its discretion in striking the McGeehan affidavit in

part and the Torres affidavit in its entirety.1

       We also find no reversible error in the court’s failure to construe the motion to

amend or supplement the Complaint as a Rule 56(f) motion for a continuance to

permit additional discovery. Rule 56(f) “allows a party who ‘has no specific material

contradicting his adversary’s presentation to survive a summary judgment motion if

he presents valid reasons justifying his failure of proof.’” Wallace v. Brownell

Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir. 1983) (quoting 10A C. Wright, A.

Miller, & M. Kane, Federal Practice and Procedure § 2740 at 530 (2d ed. 1983)).

At the time Pete’s filed its motion to amend its Complaint it was in possession of all

the information it believed sufficient to oppose Defendants’ motion for summary



       1
         It may be that admission of the evidence that was stricken required that Pete’s receive
permission to file a supplemental complaint under Fed. R. Civ. P. 15(d). Since no such permission
was granted, however, we need not be detained by consideration of whether this was also a basis for
striking the affidavits in question.

                                                7
judgment. Pete’s did not inform the court that additional discovery would enable it

to produce facts that would rebut Defendants’ showing of the absence of a genuine

issue of fact. Therefore, the court had no reason to construe the motion to amend the

Complaint as a Rule 56(f) motion and to order a continuance to permit additional

discovery.

      Because we affirm the striking of the Torres affidavit and portions of the

McGeehan affidavit and find no error in failure to order a continuance of the

summary judgment proceedings, we consider whether Defendants are entitled to

summary judgment based on the evidence considered by the district court. After

review of the record, we agree with the analysis contained in the report and

recommendation that was adopted by the district court. (R.1-66 at 10-26.) We

conclude that Defendants are entitled to summary judgment on all claims.

      AFFIRMED.




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