The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JERARD BROWN and
ELIZABETH CARDONA,
Plaintiffs,
v. Case No. 8:18-cv-2838-T-24 JSS
VIVINT SOLAR, INC., ET AL.,
Defendants.
______________________________/
ORDER
This cause comes before the Court on Vivint’s Motion to Exclude Late Disclosed
Documents (Doc. No. 186), which is joined by Mosaic (Doc. No. 188). Plaintiffs oppose the
motion. (Doc. No. 189). As explained below, the motion is granted.
I. Background
Plaintiffs Jerard Brown and Elizabeth Cardona bring this lawsuit alleging violations of
the Fair Credit Reporting Act by Defendants. Defendant Vivint Solar, Inc. is the parent company
of Defendant Vivint Solar Developer, LLC (collectively referred to as “Vivint”), and they sell
solar panels. Defendant Solar Mosaic, Inc. (“Mosaic”) is a financing company that finances
solar energy systems.
Vivint’s door-to-door salesmen go to potential customers’ houses to attempt to sell Vivint’s
solar panels. These salesmen have iPads with them, on which a potential customer can access
Mosaic’s online credit application to apply for financing for the purchase of Vivant’s solar panels.
Plaintiffs contend that Vivint’s salesmen came to their houses and completed Mosaic’s online credit
application in Plaintiffs’ names without Plaintiffs’ knowledge or consent. Thus, Plaintiffs contend
that all three defendants acted together through Vivint’s door-to-door salesmen to obtain Plaintiffs’
credit reports under false pretenses and without any permissible purpose or authorization.
II. Motion to Exclude Documents
Vivint moves the Court to exclude certain late-disclosed documents that Plaintiffs intend
to use at trial. The first document is an Assurance of Discontinuance, dated January 6, 2020,
wherein Vivint entered into an agreement with the New York Attorney General to discontinue
certain deceptive business practices. (Doc. No. 186-2). The Assurance of Discontinuance
references a broad range of deceptive practices allegedly committed by Vivint in New York.
The second document is a Consent Order entered into in August of 2019 between Vivint and the
New Jersey Attorney General. (Doc. No. 186-3). The Consent Order addresses several deceptive
practices allegedly committed by Vivint in New Jersey, including obtaining credit reports on
potential customers without their knowledge. Both documents state that they are not admissions
by Vivint. (Doc. No. 186-2, ¶ 58, 80; Doc. No. 186-3, § 8.9).
Discovery in this case ended on January 31, 2020. (Doc. No. 97). On June 12, 2020—
after dispositive motions were ruled on and motions in limine were briefed—Plaintiffs disclosed
these two documents to Vivint. (Doc. No. 186). Vivint makes several arguments for exclusion
of these documents, but the Court need only address the fact that these documents were not
disclosed prior to the discovery deadline, and Plaintiffs offer no explanation for the late
disclosure.
Vivint argues that the two documents should be excluded pursuant to Federal Rule of Civil
Procedure 37(c)(1), because they were not timely disclosed. Rule 37(c)(1) provides:
If a party fails to provide information . . . as required by Rule 26(a)
or (e), the party is not allowed to use that information . . . to supply
evidence . . . at a trial, unless the failure was substantially justified
or is harmless.
Fed. R. Civ. P. 37(c)(1). Further, this Court is guided by the following considerations:
The discovery process is designed “to avoid surprise and
minimize prejudice.” No party can use information after failing to
provide it under Rule 26, “unless the failure was substantially
justified or is harmless.” The non-disclosing party bears the burden
of showing its failure to disclose was substantially justified or
harmless. And the Court enjoys “broad discretion in determining
whether a violation is justified or harmless.” To determine whether
a violation was justified or harmless, courts have found the
following factors helpful: “(1) the surprise to the party against
whom the evidence would be offered; (2) the ability of that party
to cure the surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the evidence; and (5)
the non-disclosing party’s explanation for its failure to disclose the
evidence.”
Knowles v. Inzi Controls Alabama, Inc., 2019 WL 4551609, at *3 (M.D. Ala. Sept. 19,
2019)(internal citations omitted).
It is undisputed that these documents were not disclosed prior to the discovery deadline, and
Plaintiffs do not provide any reason for the untimely disclosure. Instead, Plaintiffs argue that Vivint
is not prejudiced, because Vivint was able to file the instant motion to challenge the documents. The
Court is not persuaded by Plaintiffs’ argument.
Additionally, the Court notes that Vivint previously moved to prevent Plaintiffs from
referencing other civil actions or proceedings against it. (Doc. No. 158). In response, Plaintiff led
the Court to believe that the only evidence of other civil actions against Vivint would be the
Littlejohn lawsuit. (Doc. No. 165, p. 12-13; Doc. No. 177, p. 3). As a result, the Court ruled that the
only other civil action or proceeding that Plaintiffs could refer to at trial was the Littlejohn lawsuit.
(Doc. No. 177, p. 3). Plaintiffs have given the Court no reason to disturb that ruling.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Vivint’s Motion to Exclude Late
Disclosed Documents (Doc. No. 186) is GRANTED. Plaintiffs may not use or refer to the 2020
Assurance of Discontinuance or the 2019 Consent Order at trial.
DONE AND ORDERED at Tampa, Florida, this 25th day of August, 2020.
Se Cel. 5
SUSAN C. BUCKLEW
United States District Judge
Copies to: Counsel of Record