IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
October 26, 2011
WELLS FARGO BANK, N.A.,
CHRISTOPHER A. ASKINS, ET AL.,
The opinion of the court was delivered by: Herndon, Chief Judge:
Now before the Court are the government's motion to strike affidavit of Crystal Reyes (Doc. 36) and request to defer consideration of plaintiff's motion for summary judgment (Doc. 37). As to the motion to strike, the government argues that plaintiff failed and neglected to disclose the existence and identity of Crystal Reyes, its sole witness in this matter, in violation of the requirements of Rule 26 and that it was prejudice by the inability to depose Reyes. Further, the government contends that Reyes's affidavit establishes that she lacks the requisite knowledge sufficient to support plaintiff's summary judgment motion. Plaintiff opposes the motions arguing that the government's requests are unrelated to the single undisputed legal principal presented in its motion for summary judgment: the legal priority of plaintiff's first filed lien over the government's $6,319.04 lien. Plaintiff further argues that there is no "discoverable information" that the government could obtain from Reyes that is necessary or relevant to the motion for summary judgment. The Court agrees with the government.
Based a review of the pleadings, it is clear that the government raises a legitimate question about Reyes who plaintiff relies for the facts to support its motion for summary judgment. Further, it is clear that plaintiff failed to disclose Reyes as a witness. Thus, the Court GRANTS the motion to strike (Doc. 36); DENIES as moot the motion to defer ruling on plaintiff's motion for summary judgment (Doc. 37); and DENIES at this time with leave to re-file plaintiff's motion for summary judgment (Doc. 33). Thus, the Court STRIKES the Reyes' affidavit (Doc. 34-1). Further, Court DIRECTS Magistrate Judge Frazier to reopen discovery and enter a new scheduling and discovery order.
IT IS SO ORDERED.
Digitally signed by David R. Herndon Date: 2011.10.26 14:56:33 -05'00'
Chief Judge United States District Court
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