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Desimini v. Durkin

United States District Court, District of New Hampshire

May 12, 2015

Felicia M. Desimini
John F. Durkin, Jr. and Wilson, Bush, Durkin & Keefe, PC Opinion No. 2015 DNH 097

Janet Elizabeth Dutcher, Esq. Jeffrey H. Karlin, Esq. Marsha V. Kazarosian, Esq. Joseph Gardner Mattson, Esq.


Joseph DiClerico, Jr. United States District Judge

Felicia M. Desimini brings claims against her former attorney, John F. Durkin, Jr., and his law firm, Wilson, Bush, Durkin & Keefe, PC that arose from Durkin’s representation of Desimini during her divorce proceedings. The defendants move to preclude Desimini from presenting evidence of damages as a sanction for failing to comply with discovery disclosure requirements. Desimini objects.

The defendants also move for summary judgment based on their motion for sanctions. They contend, based on the assumption that Desimini is precluded from introducing evidence of damages, she cannot prove her claims. For that reason, they seek summary judgment on all of the claims.

I. Motion for Sanctions

The defendants contend that Desimini failed to provide a computation of damages as required by Rule 26(a)(1)(A)(iii), failed to provide supplemental damages information under Rule 26(e), and did not properly respond to their interrogatories about damages. As a result, the defendants argue, Desimini should be precluded from presenting any evidence of damages. In response, Desimini argues that she provided evidence of her damages, admits that she did not comply specifically with the requirements of Rule 26(a)(1)(A)(iii), and also contends that her mistakes are harmless.

A. Standard of Review

Rule 26(a) requires parties to disclose certain information without waiting for discovery requests. Included in the required initial disclosures is “a computation of each category of damages claimed by the disclosing party.” Fed.R.Civ.P. 26(a)(1)(A)(iii). As the case progresses, the parties are required to supplement or correct previous discovery responses and disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1). “If 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, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

B. Discussion

Desimini was proceeding pro se when the case began and through much of the discovery process cited in the defendants’ motion. During that time, she did not provide a computation of damages as part of her initial disclosures, did not provide damages information in response to the defendants’ interrogatories, and did not supplement her disclosures. The defendants did not move to compel appropriate responses to their interrogatories.[1]

Counsel entered an appearance on behalf of Desimini on October 17, 2014, and Desimini was represented by counsel at her deposition taken on October 16, 2014. The defendants acknowledge, in a footnote, that Desimini provided information about her damages during her deposition and provided an itemization of damages after the deposition. They state that the deposition testimony does not excuse her failure to comply with Rule 26(a) and (e) and that the list is inadequate.

In her objection, Desimini cites her deposition testimony about money her ex-husband took out of an IRA account and his failure to pay her pursuant to the terms of their stipulation and the list of damages that she provided to the defendants. Desimini also states that the damages in the case have diminished because Desmini’s ex-husband sold property in February of 2015 and paid her “a sizeable amount pursuant to the underlying divorce case.” She further states that she has recalculated her damages based on the defendants’ expert’s testimony given in March of 2015. In paragraph eleven of her objection, Desimini lists the damages that she now claims.

Desimini’s deposition testimony coupled with the damages list provided some information about Desimini’s damages but appears to fall short of the computation of damages required by Rule 26(a)(1)(A)(iii). At least until now, it appears that neither Desimini nor her counsel provided a complete calculation of damages. Desimini argues that to the extent her disclosures were insufficient, her failure was harmless.

A failure of discovery is harmless if on balance “a multiplicity of pertinent factors” do not show a negative impact on fairness to the parties or the court’s docket. Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188, 197 (1st Cir. 2006) (internal quotation marks omitted). The pertinent factors include “the history of the litigation, the proponent’s need for the challenged evidence, the justification (if any) for the late disclosure, and the opponent’s ability to overcome its adverse effects. Surprise and prejudice are important integers in this calculation. So too ...

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