The opinion of the court was delivered by: Herndon, Chief Judge
Defendant Value City Department Stores, LLC*fn1 ("VCDS"), has filed a Motion for Summary Judgment (Doc. 21). Along with her Response (Doc. 23), Plaintiff has filed a related Motion to Strike Defendant's Motion for Summary Judgment, to Bar Witness, and for Sanctions (Doc. 26). For the reasons discussed herein, Plaintiff's Motion to Strike shall be granted in part and Defendant's Motion for Summary Judgment shall be denied.
Plaintiff Cheryl Neville has brought a premises liability suit for personal injuries suffered due to the alleged negligence of the entity that controlled the premises. It is uncontroverted that on November 29, 2005, Plaintiff was shopping at Defendant's retail store, "Value City," located in Swansea, Illinois (Doc. 5, Ex. 2 -Complaint, ¶¶ 3 & 4; Doc. 21, p. 2, ¶ 1). While waiting in line in the check-out aisle, Plaintiff alleges she took a few steps backwards and tripped over a display that was at the end of the aisle (Comp., ¶¶ 5 & 7; Doc. 21, p. 3, ¶ 6). In her allegations, Plaintiff describes what she tripped over to be some type of "flatbed or platform or short table or some other item of merchandise or debris located on the floor of the premises" (Comp., ¶ 7); the parties have later identified the object as a "bin pallet" (Doc. 21, p. 2, ¶¶ 1 & 3; Doc. 23, p. 2, ¶ 1).
In her Complaint, Plaintiff alleges that by allowing this bin pallet to remain on the aisle floor, Defendant failed to exercise reasonable care by creating a condition that subjected its invitees to an unreasonable risk of harm (Comp., ¶ 8). Accordingly, Plaintiff claims Defendant was negligent in maintaining its premises. As a result of her fall, Plaintiff alleges she suffered injuries to her neck, spine, back, right shoulder, right arm, hands, legs, knees, feet, ankles and remainder of her body both internally and externally, causing her to endure extreme physical and mental pain, suffering and anguish and is now permanently disfigured and disabled, thereby unable to attend to the daily activities of a normal lifestyle (Id. at ¶¶ 11 & 12). Plaintiff seeks to recover past and future medical expenses as well as past and future lost wages (Id.).
Defendant removed this action from state court based upon the existence of diversity jurisdiction (Doc. 5). Nearly a year later, Defendant filed its Motion for Summary Judgment (Doc. 21) and supporting memorandum (Doc. 22). Plaintiff filed her opposing Response (Doc. 23), along with her supporting memorandum (Doc. 24). A few weeks later, Plaintiff also filed a Motion to Strike Defendant's Motion for Summary Judgment, to Bar Witness and for Sanctions (Doc. 26), to which Defendant opposes (Doc. 27). For obvious reasons, the Court will first determine Plaintiff's Motion to Strike before analyzing whether summary judgment is warranted in this matter.
In support of its Motion for Summary Judgment, Defendant attaches the Affidavit of Rebecca Krapf (Doc. 21, Ex. C - Krapf Affidavit), which gave rise to Plaintiff's Motion to Strike. Krapf is a Merchandising Manager at Defendant's store in Swansea, Illinois (Krapt Aff., ¶ 2). She avers that she was present at the store on November 29, 2005, the day Plaintiff allegedly tripped and fell over a bin pallet located at the end of a check-out aisle (Id. at ¶ 3). Krapf further states that she was able to personally observe the area where Plaintiff alleges she fell before and after the incident occurred (Id. at ¶ 4). Krapf continues to describe the particular bin pallet at issue: it was large and square shaped, approximately four-foot by four-foot in size and black in color, located on a white tile floor at the end of the check-out aisle (Id. at ¶ 5). According to Krapf, on November 29, 2005, the bin pallet at issue was being used to display holiday wrapping paper (Id. at ¶ 6). Lastly, Krapf states that other than Plaintiff's incident, she has no knowledge of a customer ever tripping over a bin pallet (Id. at ¶ 7). Krapf's Affidavit is used to substantiate Defendant's summary judgment argument that the alleged condition (the bin pallet) was "open and obvious," and thus, Defendant had no duty to protect its invitees from open and obvious perils (Doc. 22, pp. 3-5). Krapf's statement that there was boxes of wrapping paper displayed on the bin pallet at issue on the day Plaintiff was injured directly controverts Plaintiff's allegations and deposition testimony that the bin pallet was empty (see Doc. 23, p. 2, ¶¶ 1 & 2).
Plaintiff believes Defendant's summary judgment motion should be stricken and Krapf should be barred as a witness because Defendant never disclosed Krapf in its discovery responses or initial disclosures (Doc. 26, ¶ 6).*fn2 It was not until Defendant attached her affidavit to its summary judgment motion that Krapf was identified for the first time (Id.). It also appears that Defendant was reluctant or refused to produce Krapf for deposition, its reason being that the discovery cut-off date had already passed (Id. at ¶¶ 7 & 8). Plaintiff asserts that Defendant's actions are "in direct violation of [the Federal Rules of Civil Procedure] 26 and 33, and secured an unfair advantage for Defendant by denying Plaintiff the opportunity to depose Rebecca Krapf before Defendant filed its [summary judgment] motion" (Id. at ¶ 9). In sum, Plaintiff requests Defendant's summary judgment motion be stricken, Krapf's testimony barred, including any evidence obtained through Krapf, and that Defendant be ordered to pay Plaintiff's reasonable attorney's fees.
In response (Doc. 27), Defendant argues Plaintiff has failed to comply with the "meet and confer" requirements of Rule 37 in an attempt to resolve this discovery dispute, prior to filing her Motion to Strike. Defendant believes that this dispute could have been "avoided by a simple telephone call or letter" from Plaintiff (Id. at ¶ 2). Further, Defendant contends Plaintiff's interrogatories only asked for identification of those persons who witnessed Plaintiff's alleged accident. Krapf, however, states that she did not actually witness the incident, but merely viewed the area where the bin pallet in question was located, before and after Plaintiff tripped over it (Id. at ¶ 3). Additionally, Defendant states that Plaintiff has been aware of Krapf's existence since the day of the incident -- demonstrated by Plaintiff's deposition testimony, wherein she recalls speaking to Krapf at the store after she fell (Id. at ¶ 4). Once Plaintiff filed her Motion to Strike, Defendant states that it contacted her attorney and offered to produce Krapf for deposition,*fn3 but Plaintiff's counsel no longer wanted to entertain her prior request to depose Krapf (Id. at ¶ 5). Lastly, Defendant notes that nowhere in Plaintiff's Response to summary judgment does she ever complain about her inability to depose Krapf before responding to the dispositive motion (Id. at ¶ 8).
Initial disclosures must be made pursuant to Rule 26(a)(1), including those individuals likely to have discoverable information. Further, initial disclosures and discovery responses must be supplemented if the party subsequently acquires additional responsive information or discovers its prior disclosures or responses were incomplete or incorrect. FED.R.CIV. P. 26(e)(1). Plaintiff seeks relief pursuant to FEDERAL RULES OF CIVIL PROCEDURE 26(g) and 37(c).*fn4
Clearly, both parties are in the wrong. Defendant had an ongoing obligation to supplement both its Rule 26(a) initial disclosures as well as its answers to Plaintiff's interrogatories. FED.R.CIV. P. 26(e)(1). Moreover, contrary to Defendant's assertions that disclosing Knopf as a witness would not have been a responsive answer to any of Plaintiff's specified interrogatories, the Court finds otherwise. Plaintiff asked Defendant to identify those persons who either witnessed or had knowledge of Defendant's "wrongful acts" (Interrogatories Nos. 12 & 13) Now, it is unknown to the Court whether Plaintiff defined the term "wrongful acts," yet it is irrelevant to the Court's determination as Defendant does not raise this point, nor did it object to the term's vagueness in its answers. Nevertheless, the interrogatory does not limit the response to only those who either witnessed or had knowledge of Plaintiff's act of tripping over the bin pallet. The term "wrongful acts" could also include any act by which Defendant negligently maintained its premises. Plaintiff also requested disclosure of those persons with knowledge upon which Defendant based its denial of liability (Interrogatory No. 29). Certainly, as evident from its summary judgment motion, disclosing Knapf's identity would have been responsive to Plaintiff's interrogatory. The possibility that Defendant was unaware of Knapf's knowledge regarding the bin pallet at the time it served its answers to Plaintiff's interrogatories does not negate its ongoing duty to supplement its answers once it obtained this information (which was clearly before Defendant filed its summary judgment motion).
As Defendant points out, Plaintiff's Motion to Strike does not provide certification of her good faith attempt to resolve the ...