The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REGINALD ROBERT CIVIL ACTION
VERSUS NO. 18-11632
JAMIE MAURICE, et al. SECTION: “G”
ORDER AND REASONS
Before the Court is Plaintiff Reginald Robert’s (“Plaintiff”) “Motion for Leave to File Ex
Parte Motion to Substitute Under Federal Rule of Procedure 16(B) Michael Bosillo of T-Mobile
Communications as a Rebuttal Witness.”1 Defendants Jamie Maurice (“Maurice”) and Knight
Transportation, Inc. (“Knight Transportation”) (collectively, “Defendants”) oppose the motion.2
Considering the motion, the memoranda in support and in opposition, the record, and the
applicable law, the Court grants the motion for leave to file and denies the motion to substitute
on the merits.
I. Background
On November 27, 2018, Plaintiff filed a complaint against Defendants Maurice and
Knight Transportation in this Court, seeking recovery for injuries and property damage Plaintiff
allegedly sustained in a motor vehicle collision.3 According to the Complaint, on November 28,
2017, Plaintiff was allegedly operating a vehicle on US 90 while an 18-wheeler driven by Maurice
1 Rec. Doc. 253.
2 Rec. Doc. 256.
3 Rec. Doc. 1.
was attempting to merge onto US 90 from the onramp.4 Plaintiff alleges that Maurice negligently
failed to keep a proper lookout and abruptly merged into the third lane of US 90 where the
Plaintiff was traveling, causing a collision between the two vehicles.5 Plaintiff alleges that the
vehicle being driven by Maurice was owned by Knight Transportation, and that Maurice was
within the course and scope of his employment with Knight Transportation when he collided with
Plaintiff’s vehicle.6 Accordingly, Plaintiff brings a negligence claim against Maurice and Knight
Transportation, under the doctrine of respondeat superior.7
On January 11, 2019, Defendant Knight Transportation answered the Complaint.8 On
March 1, 2019, Defendant Jamie Maurice answered the Complaint.9 With leave of Court granted
on September 9, 2019, Defendants filed an Amended Answer.10 In the Amended Answer,
Defendants assert “[a]ll alleged damages and/or injuries made the subject of this litigation were
proximately caused solely and entirely by the intentional acts of and/or negligence of Plaintiff,
Reginal Robert.”11
On September 26, 2019, this Court granted Defendants’ Motion for Partial Summary
Judgment.12 As a result, Plaintiff’s cause of action alleging the direct negligence of Knight
Transportation in the form of negligent entrustment, negligent hiring, training and supervision
4 Id. at 3.
5 Id.
6 Id.
7 Id. at 5.
8 Rec. Doc. 7.
9 Rec. Doc. 9.
10 Rec. Docs. 22, 23.
11 Rec. Doc. 23 at 5.
12 Rec. Doc. 26.
was dismissed, with prejudice.13 The Court’s order did not affect Plaintiff’s remaining cause of
action against Maurice for negligence and Knight Transportation for vicarious liability for the
alleged actions of Maurice.14 On May 14, 2021, the Court denied Plaintiff’s motion for partial
summary judgment on medical causation.15 On May 17, 2021, the Court denied Plaintiff’s motion
to strike Defendants’ “intentional acts” defense.16 The trial has been continued several times and
is set for March 21, 2022.17
On March 16, 2022, Plaintiff filed the instant Motion to Substitute.18 On March 17, 2022,
Defendants opposed the motion.19
II. Parties’ Arguments
A. Plaintiff’s Arguments in Support of the Motion
In the motion, Plaintiff asks the Court to allow “the substitution of Michael Bosillo of T-
Mobile to testify in this matter” under Federal Rule of Civil Procedure 16(b).20 Plaintiff seeks for
Bosillo to testify as a “rebuttal witness” to rebut evidence that Plaintiff was in contact with Mr.
Garrison.21 Plaintiff contends that Bosillo will testify “to codes which Sprint/T-Mobile has on
13 Id.
14 Id.
15 Rec. Doc. 175.
16 Rec. Doc. 176
17 Rec. Doc. 217.
18 Rec. Doc. 253
19 Rec. Doc. 256.
20 Rec. Doc. 253-2 at 1.
21 Id. at 4.
each call which state that the calls are voice calls, text messages, or went directly to voicemail.”22
Plaintiff notes that Defendants listed that they intended to call a representative of Sprint/T-Mobile
in the pre-trial order, but “in a strategic move, has abandoned” calling this witness.23 Thus,
Plaintiff seeks to call Bosillo as a rebuttal witness.24
Plaintiff asserts that there is good cause to amend the scheduling order to permit this. First,
Plaintiff contends that the failure to identify the witness is not Plaintiff’s fault because Plaintiff’s
counsel received an email from Sprint/T-Mobile designating Bosillo as the representative on
March 11, 2022, but did not read the email until March 13, 2022, after which she informed defense
counsel immediately.25 Furthermore, Plaintiff argues that the evidence is important because it
will “directly impeach anticipated allegations” regarding the November 20, 2017 phone call.26
Third, Plaintiff argues that there is no prejudice to Defendants because they have “been aware for
quite some time that Plaintiff has alleged that no communication ever occurred between Robert
and Garrison.”27 Further, Plaintiff notes that the Court ordered that the original email from Peggy
Shelley indicating that this call went to voicemail be unsealed, and Plaintiff provided the
information to Defendants.28 Thus, Plaintiff argues that Defendants are aware of this evidence,
and Bosillo’s testimony is not a surprise.29 Lastly, Plaintiff notes that a continuance is not
22 Id. at 5.
23 Id.
24 Id.
25 Id.
26 Id. at 6.
27 Id.
28 Id. at 8.
29 Id.
necessary.30 Therefore, Plaintiff argues that there is good cause to amend the scheduling order to
permit Bosillo to testify in rebuttal at trial.31
B. Defendants’ Arguments in Opposition to the Motion
In opposition, Defendants argue that the motion should be denied because the Court has
already excluded a Sprint/T-Mobile representative.32 Defendants argue that there is not good
cause to amend the scheduling order to permit Bosillo to testify.33 Defendants contend that
Plaintiff has known “for even longer than two years [that] Defendants believed the phone records
supported their affirmative defense.”34 Furthermore, Defendants argue that this evidence is “not
purely used for impeachment, nor is it rebuttal evidence.”35 Because Plaintiff “knew the use
Defendants would make of the cell phone records and cannot seriously argue Defendants’ use of
these records is a surprise,” Defendants contend that the this “is not rebuttal evidence, by
definition.”36
III. Law & Analysis
As an initial matter, the Court notes that the instant motion is stylized as a “Motion for
Leave to File Ex Parte Motion to Substitute Under Federal Rule of Procedure 16(B) Michael
Bosillo of T-Mobile Communications as a Rebuttal Witness.”37 Considering that Defendants have
30 Id.
31 Id. at 9.
32 Rec. Doc. 256 at 1.
33 Id. at 2.
34 Id.
35 Id.
36 Id.
37 Rec. Doc. 253.
already opposed the motion to substitute on the merits, the Court grants the motion for leave to
file and considers the motion to substitute on the merits.
On March 14, 2022, the Court granted Defendants’ motion in limine to exclude testimony
of Peggy Shelley, a Sprint/T-Mobile representative that Plaintiff sought to have testify at trial to
demonstrate that the phone call between Plaintiff and Mr. Garrison went to voicemail.38 The
Court reasoned that because Plaintiff did not list Peggy Shelley or some other T-Mobile/Sprint
representative as a witness in the pretrial order, Plaintiff would need to demonstrate good cause
in order to “call Peggy Shelley or another Sprint/T-Mobile representative.”39 The Court
determined that Plaintiff had not demonstrated good cause to modify the Scheduling Order
deadlines and allow Plaintiff to add Peggy Shelley or another Sprint/T-Mobile representative as
a witness at this late date. In the instant motion, Plaintiff makes the same request of the Court,
again seeking permission to call a Sprint/T-Mobile representative that she did not list as a witness
in the Pre-Trial Order. Plaintiff again raises arguments that the Court has already rejected, this
time under the guise of calling the Sprint/T-Mobile representative a “rebuttal witness.”40
Federal district courts have the inherent power to enforce their scheduling orders,41 and
Federal Rule of Civil Procedure 16(b) provides that a scheduling order “may be modified only
for good cause and with the judge’s consent.”42 Pursuant to the Scheduling Order, witness lists
38 Rec. Doc. 247.
39 Id. at 7–8.
40 Rec. Doc. 253 at 1.
41 See Flaska v. Little River Marine Const. Co., 389 F.2d 885, 886 & n.3 (5th Cir. 1968) (citing Link v.
Wabash R. Co., 370 U.S. 626, 630 (1962)).
42 Fed. R. Civ. P. 16(b)(4).
were due on January 10, 2020.43 Therefore, allowing Plaintiff to call Peggy Shelley or another
Sprint/T-Mobile representative would require an amendment to the witness list and pretrial order
after the deadlines set forth in the Scheduling Order. The Fifth Circuit considers the following
four factors in determining whether a district judge abuses her discretion in denying a motion to
amend a witness list: (1) the explanation for the failure to timely move to amend; (2) the
importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the
availability of a continuance to cure such prejudice.44
As the Court explained in its March 14, 2022 Order and Reasons, Plaintiff cannot
demonstrate good cause to modify the scheduling order to permit this witness. Although Plaintiff
argues that the late motion to modify the scheduling order is not his fault, as his counsel only
received the name of the Sprint/T-Mobile representative from the company on March 11, 2022,
Plaintiff’s explanation is misguided. Plaintiff does not have an adequate explanation for why he
failed to list a Sprint/T-Mobile representative as a witness or move for leave to amend prior to
the week before trial. Plaintiff has known about evidence that the phone calls in question allegedly
went to voicemail for nearly two years. The Court granted Defendants’ motion to unseal evidence
that the phone records went to voicemail on January 28, 2021, ruling that the evidence would not
be offered solely for impeachment purposes and should be disclosed to Defendants prior to trial.45
Nevertheless, until last week, Plaintiff never moved for leave to amend the witness list.
Furthermore, Defendants would be prejudiced if the Court permitted Bosillo’s testimony on the
eve of trial. Therefore, Plaintiff has not demonstrated good cause.
43 Rec. Doc. 12 at 3.
44 Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010).
45 Rec. Doc. 165.
In any event, neither Michael Bosillo nor any other Sprint/T-Mobile representative can be
classified as rebuttal witness. “Rebuttal witnesses are a recognized exception to all witness
disclosure requirements.”46 However, “[r]ebuttal is a term of art, denoting evidence introduced
by a Plaintiff to meet new facts brought out in his opponent’s case in chief.”47 However, a witness
“whose purpose is to contradict an expected and anticipated portion” of a party’s case “can never
be considered a ‘rebuttal witness,’ or anything analogous to one.”48 Plaintiff has known for
several years that Defendants intended to introduce evidence of the phone calls between Plaintiff
and Mr. Garrison. Moreover, it isn’t even clear that Defendants dispute that the call went to
voicemail. Therefore, Plaintiff can testify that the call went to voicemail, if in fact that is true.
Thus, Bosillo cannot be considered a rebuttal witness.
IV. Conclusion
For the foregoing reasons, the Court grants the motion for leave to file and denies the
motion to substitute on the merits. Bosillo may not testify at trial. The Court notes that this does
not preclude Plaintiff from putting this evidence in front of the jury all together. Plaintiff himself
may testify as to whether the phone call in question connected or went to voicemail. Accordingly,
46 Stumbaugh v. American Commercial Lines, LLC, 2009 WL 2922312 (E.D. La. September 9, 2009)
(Vance, J.) (quoting United States v. Windham, 489 F.2d 554, 555-56 (5th Cir. 1979)).
47 Morgan v. Commercial Union Assur. Co., 606 F.2d 554, 554 (5th Cir 1979).
48 Morgan, 606 F.2d at 556.
IT IS HEREBY ORDERED that Plaintiff Reginald Robert’s “Motion for Leave to File
Ex Parte Motion to Substitute Under Federal Rule of Procedure 16(B) Michael Bosillo of T-
Mobile Communications as a Rebuttal Witness”” is GRANTED.
IT IS FURTHER ORDERED that the Motion to Substitute is DENIED.
NEW ORLEANS, LOUISIANA, this 20th day of March, 2022.
Dorcel pbureit. (es
NANNETTE J@LIVETTE BROWN ow?
CHIEF JUDGE
UNITED STATES DISTRICT COURT
# Rec. Doc. 253