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Soltesz v. Rushmore Plaza Civic Center

United States District Court, D. South Dakota, Western Division

March 18, 2014

WESTERN DIVISION KYLE SOLTESZ, d/b/a, TOP DOG ENTERPRISES, Plaintiff,
v.
RUSHMORE PLAZA CIVIC CENTER, a political subdivision of the City of Rapid City, and CITY OF RAPID CITY, a political subdivision of the State of South Dakota, Defendants.

ORDER

JEFFREY L. VIKEN, Chief Judge.

Pending before the court are defendants' motion to exclude the testimony of Richard Putnam (Docket 72) and motion to strike plaintiff's responsive pleadings in opposition to defendants' motion to exclude Mr. Putnam's testimony. (Docket 77). Because the court's ruling on defendants' motion to strike impacts the court's evaluation of defendants' motion to exclude Mr. Putnam's testimony, the court must first address defendants' motion to strike.

DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S FILINGS

Defendants filed a motion to strike plaintiff's memorandum and affidavits in opposition to defendants' motion to exclude the expert testimony of Mr. Putnam. (Docket 77). Defendants' motion to exclude Mr. Putnam's testimony was filed on December 21, 2012. (Docket 72). Plaintiff's memorandum and affidavits in opposition to defendants' motion to exclude Mr. Putnam's testimony was filed on January 14, 2013. (Dockets 74, 75 & 76). Defendants submit plaintiff's responsive pleadings were filed outside the 21 calendar days required by D.S.D. Civ. L.R. 7.1B. (Docket 77). By defendants' calculation, plaintiff's responsive pleadings were due on or before January 11, 2013. Id. at pp. 1-2. Defendants argue because plaintiff's responsive pleadings were not timely filed, the court "is clearly within the Court's discretion" to strike plaintiff's submissions and rule on defendants' motion to exclude Mr. Putnam's testimony as an unopposed motion. Id. at p. 4.

The civil local rules of practice require that a party's responsive pleading must be filed "[o]n or before 21 calendar days after service of a motion and brief... all opposing parties will serve and file with the clerk of court a responsive brief.... in opposition to the motion." D.S.D. Civ. L.R. 7.1B. If defendants' motion to strike plaintiff's responsive pleading were considered in isolation based solely upon Local Rule 7.1B, defendants' argument would have merit. However, the local rules must be read in conjunction with the Federal Rules of Civil Procedure. "When a party... must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E) or (F), 3 days are added after the period would otherwise expire under Rule 6(a)." Fed.R.Civ.P. 6(d). Service by electronic means, including the court's CM/ECF facilities, is included in Rule 5(b)(2)(E). See Fed.R.Civ.P. 5(b)(3). Rule 6(d) added three days to the deadline for plaintiff's response to defendants' motion to exclude Mr. Putnam's testimony. Read together, D.S.D. Civ. LR 7.1B and Fed.R.Civ.P. 6(d) extended plaintiff's deadline until January 14, 2013. Plaintiff's filings in opposition to defendants' motion to exclude Mr. Putnam's testimony were timely filed.

Defendants' motion to strike (Docket 77) is denied.

DEFENDANTS' MOTION TO STRIKE MR. PUTNAM'S TESTIMONY

Defendants' move to exclude the testimony of plaintiff's expert witness, Richard Putnam, under Fed.R.Civ.P. 702. (Docket 72 at pp. 2-3). Defendants argue "Putnam's testimony is not based on sufficient facts or data and it is not the product of reliable principles and methods." Id. at p. 4. Defendants argue Mr. Putnam "could not opine, with a reasonable degree of professional certainty, whether his report actually reflects the sales increase[s] that the Plaintiff would have incurred." Id . "Damages for future lost profits must be proven with a reasonable degree of certainty and exactness and must be supported by specific, concrete evidence, rather than speculation and conjecture." Id . Based on these asserted infirmities, defendants submit plaintiff's expert "has not provided any opinions which would be useful for a trier of fact." Id. at p. 5.

Rule 702 of the Federal Rules of Evidence governs testimony by expert witnesses and states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the ...

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