ORDER

ELIZABETH A KOVACHEVICH, District Judge.

This cause is before the Court on:

Plaintiff Houston requests exclusion of the supplemental report of Jeff Gross dated September 29, 2014, designated as Defendant's Exhibit 658, on the basis that it is untimely. Plaintiff argues that Defendant did not disclose the expert reports of Jeff Gross by the required date, December 30, 2013, and the supplemental reports of Jeff Gross should also be excluded due to the prejudicial surprise to Plaintiff.

Defendant responds that Defendant's rebuttal expert reports of Jeff Gross were provided to Plaintiff on December 30, 2013. Those reports indicate that the barriers alleged by Plaintiff did not exist at the properties. (Dkt. 123-1, Christensen Declaration). Defendant argues that Plaintiff has created two more "supplemental" expert reports asserting "new" claims not raised in the Complaint and never encountered by Plaintiff. Defendant, through its designated rebuttal witness, Jeff Gross, has merely rebutted each of Plaintiffs supplemental reports. The September report at issue in Plaintiffs Motion is a rebuttal to Plaintiff's last supplemental report.

Plaintiff submitted the third supplemental report of Peter Lowell, asserting "new" violations at the five properties, violations which are not contained in the complaint, Peter Lowell's initial reports, and which were never encountered or known about by Plaintiff, in response to Defendant's Motion to Dismiss under Rule 12(b)(1) or for Summary Judgment, in April, 2014. Defendant sought leave to file a reply to address the "new claims" through a rebuttal report by Jeff Gross. The Court ruled on the Motion to Dismiss or for Summary Judgment on October 30, 2014, and denied the Motion for Leave to File Reply at that time as moot.

Jeff Gross completed his rebuttal report to Plaintiff's third supplemental report on October 9, and it was served on Defendant on October 28, 2014. Defendant produced the third supplemental report with its exhibits to used at trial. The September report does not add new opinions to Jeff Gross' December reports or March reports, but merely rebuts Plaintiff's new claims.

The Court has denied the Motion in Limine to Preclude the Testimony of Jeff Gross (Dkt. 136) (Order, Dkt. 197). In light of the fact that the Court did not rule on Defendant's request to file Defendant's Reply until October 30, 2014, the Court finds that the disclosure of the third supplemental report of Jeff Gross was not untimely, and, if the report were found to be untimely, Defendant was substantially justified, and there is no prejudice to Plaintiff. Accordingly, it is

ORDERED that Plaintiffs Second Motion in Limine to Preclude the Testimony of Jeff Gross (Dkt. 184) is denied, and Plaintiff's Motion in Limine (Dkt. 187) is denied.

DONE and ORDERED.