Case: 1:13-cv-01524 Document #: 282 Filed: 12/08/14 Page 1 of 7 PageID #:4894

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRIAN LUCAS, ARONZO DAVIS, TORRENCE
VAUGHANS, on behalf of themselves and
similarly situated job applicants,
Plaintiffs,

Case No. 13-cv-1524

v.

Judge Ellis

GOLD STANDARD BAKING, INC.,
PERSONNEL STAFFING GROUP, LLC d/b/a
MOST VALUABLE PERSONNEL d/b/a MVP,

Magistrate Judge Kim

Defendants.

DEFENDANT PERSONNEL STAFFING GROUP, LLC’S MOTION TO STRIKE THE
DECLARATION OF ROSA CEJA AND THE DECLARATION OF NORMAN GREEN
NOW COMES Defendant, PERSONNEL STAFFING GROUP, LLC d/b/a MOST
VALUABLE PERSONNEL (“MVP”), by and through its undersigned counsel, and pursuant to
Federal Rules of Civil Procedure 12(f), 23, and 26, and 37, hereby moves this Honorable Court
to strike the Declaration of Rosa Ceja and the Declaration of Norman Green. In support thereof,
MVP states as follows:
The Declarations Of Rosa Ceja And Norman Green Should Be Stricken Because of
Plaintiffs’ Intentional Dilatory Disclosure Of These Two Witnesses And Because Of The
Unfair Surprise The Disclosure Of These Witnesses Will Cause To MVP
1.

Plaintiffs figuratively laid in the weeds and waited until the last possible moment

to spring the testimony of Rosa Ceja (“Ceja”) and Norman Green (“Green”) on MVP. In sum,
this Court should not condone Plaintiffs’ gamesmanship and intentional dilatory disclosure of
Ceja and Green, and should strike their Declarations as a sanction for this late disclosure.
Moreover, this Court should strike Ceja’s and Green’s declarations because of the unfair surprise
that these declarations will cause to MVP.

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2.

Plaintiffs’ dilatory motive and intentionally late disclosure of Ceja and Green is

apparent after a cursory review of the procedural history of this case.
3.

On April 16, 2014, this Honorable Court ordered the parties to exchange their

Rule 26(a)(1) disclosures on or before May 2, 2014. (Dkt. 155). Pursuant to this order, Plaintiffs
tendered their Rule 26(a)(1) disclosures to Defendants on May 2, 2014.
4.

In their Rule 26(a)(1) disclosures, Plaintiffs did not identify the name of a single

individual pursuant to Rule 26(a)(1)(A)(i) who was “likely to have discoverable information.”
(See Plaintiffs’ F.R.C.P. 26(a)(1) Disclosures, attached hereto as Exhibit “A”); Fed. R. Civ. P.
26(a)(1)(A)(i). Rather, Plaintiffs “disclosed” the following groups of people:
a. “Human Resources Employees of GSB [Defendant Gold Standard Baking]
(currently unknown)”;
b. “Production Line Supervisors of GSB (currently unknown)”;
c. “Other Management Employees of MVP (currently unknown)”;
d. “Other Hourly Employees of GSB (currently unknown)”;
e. “Human Resources Employees of MVP (currently unknown)”;
f. “Recruiters and Dispatchers of MVP (currently unknown)”;
g. “Onsite Supervisors of MVP at GSB’s facility (currently unknown)”;
h. “Other Management Employees of MVP (currently unknown)”; and
i. “Other Laborers Who Sought Work Assignments through MVP (currently
unknown)”.
(Ex. A).
5.

Prior to November, 24, 2014, Plaintiff had never amended, supplemented, or

corrected their Rule 26(a)(1) disclosures.
6.

On October 28, 2014, MVP filed its Motion to Deny Class Certification. (Dkt.

244). One of the key arguments made in that Motion was that class certification should be
denied because Plaintiffs cannot provide any evidence to support any of the required elements
for certification of a class under Rule 23, including adequacy, commonality, typicality and

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predominance.

Indeed, Plaintiff’s deposition testimony reveals that this case cannot proceed as

a class action. (See id.).
7.

Ceja is not a witness to these proceedings nor could she ever be. Moreover,

Green’s claims do not reasonably fall within the confines of this litigation.
8.

Plaintiffs were ordered to respond to MVP’s Motion to Deny Class Certification

on or before November 25, 2014. (Dkt. 256).
9.

The day before Plaintiffs’ response brief was due (November 24, 2014), Plaintiffs

provided their first – and to date, only – supplemental Rule 26(a)(1) Disclosures.
10.

Specifically, on November 24, 2014, Plaintiffs tendered a “Supplement to

Plaintiffs’ F.R.C.P. 26(a)(1) Disclosures” which listed Ceja and Green. (See Supplement to
Plaintiffs’ F.R.C.P. 26(a)(1) Disclosures, attached hereto as Exhibit “B”). In this supplemental
disclosure, Plaintiffs disclosed Ceja (titling her a “former MVP Dispatcher and Onsite
Manager”) and Green (titling him an “African-American laborer seeking assignment at MVP’s
Cicero Branch Office”). Within this supplemental disclosure, Plaintiffs included a Declaration
from Ceja and a Declaration from Green. (Ex. B).
11.

The next day, Plaintiffs filed their response brief opposing Defendants’ Motion to

Deny Class Certification. (Dkt. 266). Plaintiff attached both the Declaration of Ceja and the
Declaration of Green as exhibits to their response brief. (Id. at Exs. H & M).
12.

Plaintiffs (or at least Plaintiffs’ counsel) undeniably knew of Ceja and Green and

the fact that they were “likely to have discoverable information” for a period of at least
approximately a month before Plaintiffs disclosed them to Defendants. This is obvious because
of the fact that Plaintiffs’ counsel, Mr. Williams: (1) represents Ceja in a separate Charge of
Discrimination filed with the EEOC by Ceja against MVP on or about October 20, 2014 and (2)

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has sought to add Green as a named Plaintiff in this case since at least October 28, 2014. (See
Charge of Discrimination filed by Ceja (attached to MVP’s Reply in Support of the Motion to
Deny Class Certification); Dkt. 242 (Plaintiffs’ Motion for Leave to File a Fifth Amended
Complaint and Substitute a Named Plaintiff, which, in part, seeks to add Green as a named
Plaintiff)).
13.

Obviously, Plaintiffs and their counsel have a duty to seasonably and timely

supplement their Rule 26(a)(1)(A) disclosures. Fed. R. Civ. P. 26(e)(1) (“A party who has made
a disclosure under Rule 26(a)…must supplement or correct its disclosure…in a timely manner if
the party learns that in some material respect the disclosure…is incomplete or incorrect”). It is
undeniable that Plaintiffs and their counsel did not meet this obligation, instead playing the
tactical game of waiting until one day before filing their response brief opposing MVP’s Motion
to Deny Class Certification to spring two surprise witnesses they knew of for quite some time on
MVP.
14.

As mentioned above, this Court should not condone Plaintiffs’ conduct. It is

appropriate for the Court to strike the declarations of Ceja and Green as a sanction for Plaintiffs’
inappropriate and dilatory conduct. As an “automatic and mandatory sanction,” Rule 37(c)(1)
bars a party that fails to timely disclose its experts and witnesses from using them as evidence at
trial or on a motion unless the party can show the violation was “either justified or harmless.”
Alper v. Altheimer & Gray, No. 97 C 1200, 2002 WL 31133287, at *39 (N.D. Ill. 2002).
15.

Additionally, as MVP has litigated this matter for approximately two years

(including filing their Motion to Deny Class Certification) with the presumption that Plaintiffs
knew of no individuals likely to have discoverable information, it would certainly cause unfair
surprise to allow them to testify in response to MVP’s Motion to Deny Class Certification.

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Stated another way, since Plaintiffs only disclosed these witnesses a grand total of fourteen days
before MVP’s reply brief in support of said Motion was due (and almost a month after MVP had
filed that Motion), MVP has been afforded absolutely no opportunity to test Ceja’s or Green’s
testimony by way of cross-examination, deposition, tendering further discovery regarding these
individuals’ testimony to Plaintiffs, or otherwise.
16.

Moreover, it is clear that Ceja and Green are not witnesses and were only

disclosed to harass and delay Defendant.
17.

For all these reasons, the Court should strike the declarations of Ceja and Green,

and should disregard any argument concerning these declarations contained within Plaintiff’s
response brief in opposition to MVP’s Motion to Deny Class Certification.
Furthermore, The Declarations Of Rosa Ceja And Norman Green Should Be Stricken
Because Their Declarations Are Clearly Not Based On Admissible Evidence
18.

The Declarations of Ceja and Green consist almost entirely of conjecture,

speculation, and inadmissible hearsay, and clearly lack the foundation required for consideration
under the Federal Rules of Evidence. For these reasons, the declarations should be stricken.
19.

In order for the Court to consider an affidavit or declaration, that affidavit or

declaration must be based upon evidence admissible under the Federal Rules of Evidence. See
Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 659 (7th Cir. 1991) (testimony that
is not admissible at trial cannot be contained in an affidavit).
20.

In turn, testimony that is based on speculation and hearsay, and testimony of

which an individual has no personal knowledge, is inadmissible under the Federal Rules of
Evidence. Fed. R. Evid. 602 (“[a] witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the matter”); see also
Visser, 924 F.2d at 659 (affidavit must be based upon personal knowledge of the affiant); see
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generally Fed. R. Evid. 801-07 (hearsay is generally not admissible under Federal Rules of
Evidence).

As such, any so-called evidence in an affidavit that is not based on personal

knowledge, or consists of inadmissible hearsay, must be disregarded.
21.

Ceja is not a witness to these proceedings. Her declaration is based entirely on

hearsay. Her knowledge comes from conversations she alleges she had with dispatchers at
various MVP office locations. She has no firsthand knowledge. See Gorence v. Eagle Food
Centers, No. 93 C 4862, 1999 WL 199619, at *3 (N.D. Ill. 1999).
22.

Likewise, Green’s affidavit is vague, references clients of MVP who are not

parties to this litigation and lacks foundation.
23.

In sum, the Declarations offered by Ceja and Green are nearly entirely composed

of testimony that would be inadmissible under the Federal Rules of Evidence. For this reason,
the Court should strike these two Declarations.
WHEREFORE, Defendant, PERSONNEL STAFFING GROUP, LLC d/b/a MOST
VALUABLE PERSONNEL, respectfully requests this Honorable Court strike the Declaration of
Rosa Ceja and the Declaration of Norman Green from Plaintiffs’ response brief in opposition to
MVP’s Motion to Deny Class Certification, strike and disregard all references to these
Declarations within Plaintiff’s response brief, and grant them such further relief that is just and
equitable under the circumstances.
Dated: December 8, 2014

Respectfully Submitted,

/s/ Britney Zilz
Carter A. Korey
Elliot Richardson
Ryan D. Gibson
Britney Zilz
Korey Cotter Heather & Richardson, LLC
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20 S. Clark Street, Suite 500
Chicago, Illinois 60603
Phone: (312) 372-7075
Fax: (312) 372-7076
Attorneys for Defendant Personnel Staffing
Group, LLC d/b/a Most Valuable Personnel

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