This quarter, Western District Chief Judge Frank P. Geraci Jr. analyzed whether a declaration submitted in support of plaintiff's motion for summary judgment constituted undisclosed and untimely expert testimony in denying plaintiff's motion for summary judgment. Meanwhile, Senior District Judge David G. Larimer dismissed a medical malpractice complaint that started in village court and ended up on his docket. He analyzed the claim even though plaintiff did not respond to the motion to dismiss.

Motion To Strike Undisclosed Expert Testimony

In Edelmann v. Keuka College, No. 16-CV-6293, 2019 U.S. Dist. LEXIS 137536 (W.D.N.Y. Aug. 14, 2019), plaintiff moved for summary judgment on his wage-and-hour claim against his former employer, defendant Keuka College. Defendant then moved to strike a declaration plaintiff submitted in support of his motion on reply, alleging the declaration was testimony by an undisclosed expert. Plaintiff then filed a cross-motion to re-open expert discovery. The court noted that the parties' "narrow dispute" was whether plaintiff's position was exempt from the overtime requirements of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) by virtue of his job duties and resolved all three motions in this decision.

Plaintiff alleged that defendant misclassified him as a salaried employee exempt from overtime requirements in violation of the FLSA and the NYLL. Plaintiff worked as a "Senior Support Technician" for defendant and defendant classified him as a salaried employee exempt from overtime requirements. The court noted that it need only analyze the FLSA claim because the parties agreed that the same categories of exemptions are available in the NYLL claim.

The FLSA provides certain categories of employees that are exempt from overtime requirements. Whether plaintiff properly fits into an exempted category is a question of fact, and defendant/employer bears the burden of establishing that plaintiff fits into one of the exempted categories. Specifically, defendant points to the "computer employee" exemption and the "administrative" exemption.

Whether plaintiff properly fits in either category depends largely on what plaintiff's job responsibilities and duties actually consisted of, and Judge Geraci explained that "[t]he crux of the parties' factual dispute concerns the nature and complexity of Plaintiff's job responsibilities." Id. at *3. The court considered the job description that the defendant prepared for the Senior Support Technician position, which included "General Responsibilities" such as hands-on technology support for the defendant's "Desktop Systems" and "other technologies as required by [defendant]." Id. at *4. The description also contained "Specific Responsibilities" which included providing technical support to "all Department and personnel associate with Keuka College" and listed several specific technology systems and hardware for which plaintiff would provide support. Id.

Plaintiff alleged that in reality, his job duties were "not as high-level or technically sophisticated" as the job description suggests. Id. at *5. He alleged that "60% of his job duties consisted of help desk and desktop support" and 30% consisted of "running A/V support, such as ensuring that projectors and screens were set up for PowerPoint presentations and that microphones were available and operational for speakers." Id.

Defendant alleged that plaintiff was responsible for major projects and was part of a committee to "maintain, change, and upgrade the college's event management system." Id. at *8. Defendant stated that one of plaintiff's major project assignments included integrating new Apple computers into the college's network. Defendant also stated that plaintiff's supervisor described him as the "architect behind the Apple environment at Keuka." Id. at *6. Judge Geraci set forth the additional facts as submitted, including that despite whatever job duties he performed, defendant eliminated plaintiff's job in November 2015. Id. at *8.

Then, the court analyzed whether plaintiff's position was exempt either under the computer employee or administrative exemption. Judge Geraci outlined the standard for deciding the summary judgment motion. Summary judgment is appropriate when the record shows that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in the non-moving party's favor. (All citations omitted). Id. at *2. He concluded that a genuine issue of material fact precluded summary judgment in plaintiff's favor. Id. at *22.

Reeve Declaration Not Considered

In reaching that decision, he did not consider the Reeve declaration. Id. at *26. Because determining the nature of plaintiff's job responsibilities was central to plaintiff's claim that he was improperly classified as a salaried employee, in reply, plaintiff submitted a declaration in support of his motion for summary judgment "to explain[] the meaning and significance of a number of the general IT terms and phrases." Id. at *23. Defendant moved to strike the declaration, arguing the declaration contained expert testimony of the declarant, Donald Reeve, who plaintiff failed to disclose as an expert before the close of the discovery deadline.

Plaintiff argued that his failure to meet the expert disclosure deadline was justified, arguing that the need for Reeve's declaration became necessary only when "'Defendant attempted to obfuscate the facts.'" Id. at *25

The court disagreed and granted defendant's motion to strike, agreeing that the Reeve's testimony was not admissible as lay opinion. The purpose of his testimony was to clarify certain terminology employed by the parties and to explain typical or custom IT industry practices. The court found that because Reeve had no substantive relationship to the case and was only made aware of the facts of the case after review of the summary judgment record, his opinion was not based on his "personal familiarity with the facts of the case" but rather on his "specialized or technical knowledge." Id. at *24. Thus, Reeve's testimony was that of an expert, not a lay person. Id.

Accordingly, the court precluded the use of the declaration under Federal Rule of Civil Procedure 37(c)(1), which precludes a party from using a witness to supply evidence on a motion where that party failed to identify the witness in discovery, unless the failure is "substantially justified." The court held that because plaintiff failed to disclose Reeve as an expert before the established deadline, plaintiff was precluded from using the declaration in support of his motion.

The court determined that preclusion was the appropriate remedy because it found plaintiff's justification for untimely disclosure "unconvincing." Id. at *25. The court also found that the declaration would be "cumulative and unimportant" (because plaintiff himself described the nature of his duties) and "permitting such testimony would prejudice Defendant, because it would be forced to contest Reeve's assertions without the benefit of any investigation or discovery." Id. at *26.

Judge Geraci also dismissed plaintiff's request to modify the scheduling order and reopen expert discovery in a footnote—holding plaintiff failed to demonstrate "the diligence necessary to justify that relief." Id. at *26, n. 3.

Federal Court Dismissed a Village Small Claim

Senior District Judge David G. Larimer dismissed a claim that started in Bath Village Court in Parry v. VA Medical Center, No. 19-CV-6252L, 2019 U.S. Dist. LEXIS 172771 (Oct. 4, 2019). A pro se plaintiff submitted an Application to File Small Claim in the Bath Village Court, in Bath, N.Y. Her claim named the VA Medical Center as the defendant and sought $2,900 in damages for alleged medical negligence by the VA Medical Center's optometry clinic.

Because the VA Medical Center is a component of the U.S. Department of Veterans Affairs, an agency of the U.S. government, defendant removed the action to the U.S. District Court in Rochester. Judge Larimer decided that the removal was proper, and the court had jurisdiction. He based his finding upon submissions of the U.S. Attorney certifying that the VA Medical Center is an agency of the U.S. government and the allegedly negligent medical personnel were federal employees acting within the scope of their employment when the events alleged took place—meaning that the claim arises under the Federal Tort Claims Act (FTCA).

Defendant then moved to substitute the United States of America as the proper defendant and to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure for failing to exhaust all administrative remedies. Plaintiff failed to respond to the motion and had not made any contact with the district court since the case was removed.

Despite plaintiff's absence, Judge Larimer considered the merits of her claim, stating that "a plaintiff's failure to respond to a motion to dismiss does not in itself relieve the Court of its obligation to consider the merits of plaintiff's claims." Id. at *2.

First, the court decided that substituting the United States of America as defendant in the action was proper because plaintiff's claims arose under the FTCA, and such claims are only properly brought against the United States of America.

Next, the court considered defendant's motion to dismiss for lack of subject matter jurisdiction. In support of its motion to dismiss, defendant introduced the affidavit of a VA employee who stated that he searched the VA's Office of the General Counsel's records and found no administrative tort claim filed by plaintiff. Judge Larimer noted that because plaintiff failed to respond to the motion to dismiss, this assertion is unrebutted and "it appears that plaintiff simply filed a small claims complaint against an agency of the United States government" which is insufficient. Thus, he dismissed the case.

Sharon M. Porcellio is a member of Bond, Schoeneck & King, representing businesses and institutions in commercial litigation and employment matters. She can be reached at [email protected]. Kathleen McGraw, a law clerk with the firm and third year law student at SUNY Buffalo Law School, assisted with the preparation of this article.