DENNIS L. HOWELL, Magistrate Judge.
Pending before the Court is the Motion for Sanctions [# 37]. Defendants Allstate Insurance Company and Allstate Indemnity Company (collectively "Defendants") move pursuant to Rule 16(f)(1)(C) and Rule 37(c)(1) of the Federal Rules of Civil Procedure for an order sanctioning Plaintiffs for their failure to timely provide an expert report. Specifically, Defendants request that the Court enter an order dismissing the Amended Complaint with prejudice or, in the alternative, excluding Plaintiffs' expert from testifying at trial. The Court
Rule 26 of the Federal Rules of Civil Procedure provides that the disclosure of an expert witness "must be accompanied by a written report" that is prepared and signed by the expert witness. Fed. R. Civ. P. 26(a)(2)(B). Pursuant to the Court's Pretrial Order and Case Management Plan, Plaintiffs were required to provide their expert's report to Defendants by June 1, 2015. (Order, Feb. 10, 2015.) The expert report "must contain" a variety of information, including "the facts or date considered by the witness in forming [his or her opinions]." Fed. R. Civ. P. 26(a)(2)(B);
Rule 16 of the Federal Rules of Civil Procedure provides that the Court may issue "any just order" where a party fails to comply with the Pretrial Order. Fed. R. Civ. P. 16(f)(1)(C). In addition, the Court must award reasonable expenses, including attorney fees, incurred as a result of the party's noncompliance with Rule 16, provided the noncompliance was not "substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 16(f)(2). Similarly, Rule 37 provides for the imposition of appropriate sanctions where "a party fails to provide information or identify a witness as required by Rule 26(a) or (e). . . ." Fed. R. Civ. P. 37(c)(1).
It is undisputed that Plaintiffs failed to comply with the requirements of the Pretrial Order. Although Plaintiffs produced the name of their expert, as well as the expert's curriculum vitae, Plaintiffs did not provide Defendants with an expert report. As a result, Defendants now move the Court to sanction Plaintiffs by dismissing this case with prejudice. In the alternative, Defendants ask the Court to enter an order excluding Plaintiffs' expert's testimony at trial. Upon a review of the record and the relevant legal authority, the Court finds that the requested sanctions are not warranted in this case at this time.
Rather than seek dismissal of the Amended Complaint for failure to comply with the Pretrial Order, Defendants should have first filed a motion to compel the expert report. This Court cannot dismiss a case with prejudice as a sanction for failure to provide discovery where the Court has not first attempted to order the offending party to produce the documents at issue or imposed some sanction less drastic than dismissal.
Here, the Court has provided no warning to Plaintiffs that the failure to timely produce an expert report could result in the dismissal with prejudice of this case. Even if the Court had provided Plaintiffs with such notice, the situation in this case is a far cry from the type of case where the Court may utilize the extreme sanction of dismissal with prejudice.
The Court
The Court