United States District Court, E.D. Louisiana
ORDER & REASONS
E. Fallon United States District Judg
the Court is Defendant Donald Rulh's motion to strike
Plaintiff's expert report as untimely. R. Doc. 280.
Plaintiff Complete Logistical Services, LLC
(“CLS”) opposes the motion. R. Doc. 293. Mr. Rulh
has filed a reply. R. Doc. 298. The Court rules as follows.
provides contract labor to various marine industries. It
alleges its former member, Defendant Rulh, breached his
fiduciary duties to CLS, misappropriated CLS' assets,
damaged CLS' image, and took confidential and proprietary
information after he was removed from the LLC by its
remaining members. R. Doc. 98 at 1-3.
verified complaint, CLS alleges that, as a result of Mr.
Rulh's allegedly egregious conduct-specifically, his
failing to collect payments from clients; refusing to
reimburse the LLC for money he borrowed to refinance his
private home; arriving intoxicated to company events; and
changing the locks on the CLS office without first discussing
the matter with the other LLC members-the other three members
of CLS voted to treat Mr. Rulh as “an assignee of the
Company, ” thereby revoking his authority to manage the
business or act unilaterally on its behalf. R. Doc. 98 at
4-6. CLS alleges that after Mr. Rulh was stripped of this
authority, he stole from CLS confidential information
including financial statements, customer lists, and sales
records while the other members were at a company crawfish
boil. R. Doc. 98 at 8. According to CLS, these documents were
printed, scanned, and then emailed to Mr. Rulh's personal
email account. R. Doc. 98 at 8. CLS further alleges Mr. Rulh
took this information intending to start a competing business
with his co-Defendants. In support of this allegation, CLS
points to a non-disclosure agreement between the Defendants,
which CLS included as an attachment to its complaint. R. Doc.
98-5. Additionally, Plaintiff alleges Mr. Rulh took $222,
000.00 from the LLC's bank account without authorization
on December 6, 2017, “essentially depleting the account
completely.” R. Doc. 98 at 1.
on these allegations, CLS brings claims against Mr. Rulh for
violations of the Defend Trade Secrets Act
(“DTSA”); Louisiana Uniform Trade Secrets Act
(“LUTSA”); Computer Fraud and Abuse Act
(“CFA”); Louisiana Unfair Trade Practices Act
(“LUTPA”); and for unjust enrichment; breach of
fiduciary duties, duty of loyalty, and duty of due care;
conversion; conspiracy; and fraud. R. Doc. 98 at 3. CLS also
seeks injunctive relief. R. Doc. 98 at 4. Moreover, CLS
submits that, after it initially filed suit, its remaining
members “availed themselves of their rights in the CLS
Operating Agreement to expel Mr. Rulh from CLS
membership”; as a result, Mr. Rulh is no longer an
assignee of the company, but a non-member. R. Doc. 98 at 4.
In its amended complaint, Plaintiff seeks a declaration
“that the expulsion proceedings were proper in all
respects and confirming that Mr. Rulh is no longer a member
of CLS.” R. Doc. 98 at 4.
March 4, 2019, CLS served Mr. Rulh with the expert report of
Jason MacMorran (the “MacMorran Report”). On
April 3, 2019, Mr. Rulh produced an expert report from Mr.
Athen Sweet (the “Sweet Report”). On April 30,
2019, CLS provided Mr. Rulh with an additional report
prepared by Mr. MacMorran entitled “Review and Rebuttal
of the Report of Athen Sweet” (the “Second
MacMorran Report”). On May 16, 2019, Mr. Rulh filed a
motion seeking to strike the Second MacMorran Report as
untimely. R. Doc. 280.
support of his motion to strike, Mr. Rulh argues the Second
MacMorran Report is untimely, as it was filed after March 4,
2019, the deadline for Plaintiff's expert reports as
established by this Court's scheduling order.
Id. at 1-2. He argues the contents of the report
cannot be considered a rebuttal to the Sweet Report; rather,
he submits the Second MacMorran Report is a supplement to his
original report. Id. at 7. Moreover, Mr. Rulh
contends the timing of the Second MacMorran Report
“makes clear that CLS planned to surprise Mr.
Rulh” with the report, as it was provided to him on the
same day as the Court's deadline for Daubert
motions. Id. at 8. Thus, Mr. Rulh contends
“CLS intentionally waited until it was too late for Mr.
Rulh to file a Daubert motion before offering [the
Second MacMorran Report].” Id. at 4. Finally,
Mr. Rulh states, “CLS offers no legitimate reason for
its failure to offer Mr. MacMorran's new opinions in a
timely fashion.” Id. at 6.
opposition, CLS first points out that the Second MacMorran
Report “references the Sweet Report more than 100 times
in 24 pages.” Id. at 4-5. CLS also points out
that, throughout his motion, Mr. Rulh refers to the report as
the “MacMorran Rebuttal.” Id. at 4-5
& n.5. Thus, CLS contends, the Second MacMorran Report is
properly considered a rebuttal report. Id. at 3.
Further, CLS argues, because the Court's scheduling order
does not contain a deadline for rebuttal reports, its
timeliness is governed by Federal Rule of Civil Procedure
26(a)(2)(D). Thus, CLS submits, because the Second MacMorran
Report was served within thirty days of disclosure of the
Sweet Report, the report is timely pursuant to Rule
LAW AND ANALYSIS
Court first considers Mr. Rulh's contention that the
Second MacMorran Report is merely supplemental and not
properly considered a rebuttal to the Sweet Report. A
rebuttal report is a report “intended solely to
contradict or rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B) or
(C).” Fed.R.Civ.P. 26(a)(2)(D)(ii).
To determine whether a disclosure is properly included under
Rule 26(a)(2)(C) rather than under Rule 26(a)(2)(B), it will
often be helpful to answer these three questions: First, what
evidence does the rebuttal expert purport to contradict or
rebut? Second, is the evidence disclosed as rebuttal evidence
on the same subject matter as that identified by another
party in its Rule 26(a)(2)(B) disclosure? Third, is ...