MORGENSTERN v. COUNTY OF NASSAU
GEORGINA MORGENSTERN, Plaintiff,
COUNTY OF NASSAU, THOMAS R. SUOZZI, ANTHONY M. CANCELLIERI, PATRICIA BOURNE, and JOHN P. DONNELLY, Defendants.
United States District Court, E.D. New York.
September 29, 2008.
Scott Browning Gilly, Esq., Douglas Holden Wigdor, Esq., Kenneth P. Thompson, Esq. Jihee Gillian Suh, Esq. Thompson, Wigdor & Gilly LLP, New York, New York, For Plaintiff.
Esther D. Miller, Esq., Joanne L. Oweis, Esq, Bethany Bresnaider O'Neill, Esq, Erica Michelle Haber, Esq, Nassau County Attorney's Office Mineola, New York, For Defendants.
MEMORANDUM AND ORDER
SEYBERT, District Judge:
Plaintiff Georgina Morgenstern filed a Complaint on January 8, 2004 alleging that the County of Nassau ("County"), Thomas R. Suozzi ("Suozzi"), Anthony M. Cancellieri ("Cancellieri"), Patricia Bourne ("Bourne"), and John P. Donnelly ("Donnelly") (the "Individual Defendants") (collectively, the "Defendants") violated Plaintiff's right to due process and freedom of speech, breached their employment contract with Plaintiff, violated the New York Civil Service Law, defamed Plaintiff, and retaliated against Plaintiff for complaining of sexual harassment in the workplace. Pending before the Court is Defendants' motion for summary judgment and Plaintiff's motion to strike the affidavits of Lorna Goodman, Donald Hohn, and Edward Mellina. For the reasons stated below, the Court GRANTS Defendants' motion for summary judgment in part and DENIES it in part, DENIES Plaintiff's motion to strike Goodman and Hohn's Affidavit, and GRANTS Plaintiff's motion to strike Mellina's Affidavit.
I. Motion To Strike Affidavits
Defendants submit the affidavits of Lorna Goodman, Donald Hohn, and Edward Mellina in support of their Rule 56.1 Statement of Material Facts. Plaintiff moves to strike the affidavits on the ground that Defendants did not disclose these three affiants pursuant to Federal Rule of Civil Procedure 26(a) as persons with knowledge of the claims and defenses in this case. Because Defendants rely on the affidavits in support of their motion for summary judgment, the Court addresses Plaintiff's motion to strike as a preliminary matter.
A. Standard Of Review
Federal Rule of Civil Procedure 37(c)(1) states, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, . . . unless the failure was substantially justified or is harmless." The purpose of Rule 37(c)(1) "is to prevent the practice of 'sandbagging' an adversary with new evidence." Ventra v. United States, 121 F.Supp.2d 326, 332 (S.D.N.Y. 2000) (citingJohnson Electric North America v. Mabuchi Motor America Corp., 77 F.Supp.2d 446, 458 (S.D.N.Y. 1999)). However, it is well recognized that "preclusion of evidence pursuant to Rule 37(c)(1) is a drastic remedy and should be exercised with discretion and caution." Ebewo v. Martinez, 309 F.Supp.2d 600, 607 (S.D.N.Y. 2004).