Euphoric, LLC v. Westport Cmty. Improvement District, et al. (2), No. 4:25-cv-00023-RK (June 22, 2026)

Case details
Full caption
Euphoric, LLC et al. v. Westport Community Improvement District, et al. (2)
Country
United States
Jurisdiction
Federal
Decided
June 22, 2026
Disposition
Motion Denied
Majority
Roseann A. Ketchmark (J.) (unanimous Court)
EUPHORIC, LLC; THE SOURZE, LLC; and UNIKC, LLC, Plaintiffs, v. WESTPORT COMMUNITY..., Slip Copy(2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1788434Only the Westlaw citation is currently available.United States District Court,W.D. Missouri, Western Division.EUPHORIC, LLC; THE SOURZE,LLC; and UNIKC, LLC, Plaintiffs,v.WESTPORT COMMUNITY IMPROVEMENTDISTRICT, A NON-PROFIT MISSOURICORPORATION; et al., Defendants.Case No. 4:25-cv-00023-RK|Filed 06/22/2026Attorneys and Law FirmsCecilia Jania Brown, Cecilia Nuby & Associates LLC,Chicago, IL, David S. Rauzi, Law Offices of David S. Rauzi,Kansas City, MO, Mark Eldon Meyer, Law Offices of MarkE. Meyer, L.L.C., Lees Summit, MO, for Plaintiff Euphoric,LLC.Cecilia Jania Brown, Cecilia Nuby & Associates LLC,Chicago, IL, for Plaintiff THE SOURZE, LLC.Stephen Roosevelt Williams, Law Office of Stephen R.Williams, Kansas City, MO, Cecilia Jania Brown, CeciliaNuby & Associates LLC, Chicago, IL, David S. Rauzi, LawOffices of David S. Rauzi, Kansas City, MO, Mark EldonMeyer, Law Offices of Mark E. Meyer, L.L.C., Lees Summit,MO, for Plaintiff UNIKC, LLC.Jacqueline M. Duvall, Michael L. Matula, Stacy M. Bunck,Ogletree, Deakins, Nash, Smoak & Stewart, Kansas City,MO, for Defendants Westport Community ImprovementDistrict, Pamela Ptacek, Paul Mesler, Kyle Kelly, LarryGoldman, Christie Montague, Franklin D. Kimbrough.Jacqueline M. Duvall, Michael L. Matula, Ogletree, Deakins,Nash, Smoak & Stewart, Kansas City, MO, for DefendantsZach Marten, Max Wasserstrom, Brandi Degenhardt.Jacqueline M. Duvall, Ogletree, Deakins, Nash, Smoak &Stewart, Kansas City, MO, for Defendant Murfin Inc.Amy Diane Quinn, R. Mark Nasteff, Jr., Nasteff & QuinnLLC, Liberty, MO, for Defendants Brett Allred, Allread, Inc.R. Mark Nasteff, Jr., Nasteff and Quinn, LLC, Liberty, MO,for Defendant Allred Holdings, LLC.Jacqueline M. Duvall, Michael L. Matula, Stacy M. Bunck,Ogletree, Deakins, Nash, Smoak & Stewart, Kansas City,MO, John E. Franke, George Revis Lewis, Franke, Schultz& Mullen, Kansas City, MO, for Defendants Matthew Vos,Jeremy Hurt.John E. Franke, George Revis Lewis, Franke, Schultz &Mullen, Kansas City, MO, Matthew D. Stromberg, FoulstonSiefkin, LLP, Overland Park, KS, for Defendant WestportDevelopment, LLC.Christal Marie Wang, Timothy J. Wolf, Lucas Ude, WattersWolf Bub & Hansmann LLC, St. Louis, MO, KathrynAnn Wright, Lauren Ann Mangiameli, Halbrook Wood, PC,Prairie Village, KS, for Defendant AC Westport, LLC.Scott A. Wissel, Ashlyn Buck Lewis, Kenneth W. Borgnino,Lewis Rice LLC, Kansas City, MO, for Defendants DBIcehouse, LLC, Gregory Bartold, Joe Niebur.Don Alcorn Peterson, Grant Peterson, Don Peterson LawLLC, Overland Park, KS, for Defendants 4128 Broadway,LLC, Harold Brody.ORDERROSEANN A. KETCHMARK, JUDGE UNITED STATESDISTRICT COURT*1 Before the Court are several somewhat related motionsregarding expert designations which the Court addresses here:(1) Plaintiff The Sourze, LLC and Defendants' motions toextend expert-designation deadlines, (Docs. 433, 478); (2)Plaintiff The Sourze, LLC's motion to designate expertsprior to serving Rule 26(a)(2)(B) reports, (Doc. 434); and(3) Defendant Westport Development, LLC's “Motion toExclude Brandon L. Comer as an Expert Witness forPlaintiffs Euphoric, LLC and UNIKC LLC and to StrikePortions of his Report Providing Opinions for Them,” (Doc.468). The motions are fully briefed, with the exception ofDefendants' motion to extend expert-designation deadline.1Also pending is Plaintiff The Sourze, LLC's motionto file amended suggestions in opposition to DefendantWestport Development, LLC's motion to exclude to addresscertain “inaccuracies” and “drafting errors” identified by
EUPHORIC, LLC; THE SOURZE, LLC; and UNIKC, LLC, Plaintiffs, v. WESTPORT COMMUNITY..., Slip Copy(2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Westport Development in The Sourze's initial suggestions inopposition. (Doc. 485.)I. The Parties' Motions to Extend Expert-DesignationDeadlines (Docs. 433, 478)The Sourze seeks extension of its expert-designation deadlineto July 31, 2026, for good cause pursuant to Rule 6(b)(1)(A) of the Federal Rules of Civil Procedure.2 It seeks anextension to accommodate the preparation and finalizationof the expert reports of Dr. William Rogers and Brandon L.Comer, both of whom have indicated that their reports cannotbe completed without the production of documents related todiscovery requests for records from the City of Kansas Cityand Defendant Westport Community Improvement District.Defendants initially opposed this request.Since the filing of The Sourze's motion to extend its expert-designation deadline, the following has occurred: (1) TheSourze designated Brandon L. Comer as an expert andserved the Expert Report of Brandon L. Comer on May15, 2026 (Docs. 452, 453), and (2) a Third AmendedComplaint was filed with leave of Court, (Doc. 481),adding claims and defendants. As a result of the ThirdAmended Complaint, the Court expects and anticipates thatan amended scheduling order will be required. The partiesanticipate the same. Accordingly, in light of the currentprocedural posture, the parties' motions to extend expert-designation deadlines are GRANTED. The Court anticipatesthat the parties will therefore incorporate The Sourze'sexpert-designation deadline (concerning Dr. Rogers, sinceMr. Comer has been designated and an expert report served),as well as Defendants' expert-designation deadline into theforthcoming proposed amended scheduling order, which theCourt anticipates will include an extended fact and expert-discovery deadline, among the other applicable deadlines/settings.II. The Sourze's Motion to Designate Prior toDisclosing Expert Report (Doc. 439)*2 In a corresponding motion filed prior to the subsequentprocedural developments in this case as noted above, TheSourze sought leave to designate its experts “upon resolutionof the pending” motion for extension of time, with theexpert reports to be filed later. Rule 26(a)(2)(B) provides:“Unless otherwise stipulated or ordered by the court, [anexpert witness] disclosure must be accompanied by a writtenreport ....” Because the Court grants The Sourze's motion forextension of time and in light of the subsequent proceduralposture, The Sourze's motion is DENIED as moot. Theparties are directed to follow the regular course in disclosingexperts under Rule 26 within the timeline as will be set out inthe anticipated amended scheduling order.III. Westport Development's Motion to Exclude (Doc.468)Westport Development seeks to strike and exclude theportions of Mr. Comer's expert report relating to PlaintiffsEuphoric and Unikc, as to whom the expert-designationdeadline has expired and has not been extended despiteEuphoric and Unikc's attempts through various proceduralmechanisms to post hac extend the missed deadline, all ofwhich have been denied by the Court.3 As noted above,The Sourze designated Mr. Comer and served his expertreport on May 15, 2026. Mr. Comer's expert report includesbackground, analysis, and opinions regarding not only TheSourze but also Euphoric and Unikc, as well. (See Doc.479-1.) Westport Development argues that the portions ofMr. Comer's expert report and anticipated expert testimonyconcerning Plaintiffs Euphoric and Unikc should be strickenand excluded under Rule 37(c)(1) of the Federal Rules ofCivil Procedure.Rule 37(c)(1) provides:If a party fails to provide information or identify a witnessas required under Rule 26(a) or (2), the party is not allowedto use that information or witness to supply evidence ona motion, at a hearing, or at a trial, unless the failurewas substantially justified or is harmless. In addition to orinstead of this sanction [of exclusion], the court, on motionand after giving an opportunity to be heard:(A) may order payment of the reasonable expenses,including attorney's fees, caused by the failure;(B) may inform the jury of the party's failure; and(C) may impose other appropriate sanctions, including anyof the orders listed in Rule 37(b)(2)(A)(i)(vi).As the Eighth Circuit has explained, “[t]he disclosuremandates in Rule 26 are given teeth by the threat of sanctionsin Rule 37.” Petrone v. Werner Enters., Inc., 940 F.3d 425,434-35 (8th Cir. 2019) (internal quotation marks omitted).“However, by its terms, Rule 37(c)(1) applies only when aparty fails to comply with Rule 26(a) and then seeks to use theinformation ‘on a motion, at a hearing, or at a trial.’ ” Id. Put
EUPHORIC, LLC; THE SOURZE, LLC; and UNIKC, LLC, Plaintiffs, v. WESTPORT COMMUNITY..., Slip Copy(2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3another way, “Rule 37(c)(1) addresses what to do if a partyfails to disclose information as required under Rule 26(a) andattempts to use that information on a motion, at a hearing, orat a trial.” Id. At this juncture, neither Euphoric nor Unikchave sought to introduce or use Mr. Comer's expert reportor his expert testimony on their behalf and in regards to hisspecific analysis or opinions as to their respective damages.However, they clearly intend to do so. Accordingly, and underthese somewhat unusual circumstances, the Court providesthe following guidance:This case has been procedurally unique and has raisedprocedural issues uncommon to most cases. As this case hashighlighted, scheduling order deadlines and the discoveryprocedures set out under the Federal Rules of Civil Procedurehave meaning, must be followed, and will be enforced. Atthe same time, in various ways the Federal Rules of CivilProcedure are not rigid or entirely inflexible, particularlythose rules governing scheduling order deadlines anddiscovery procedures. See Fed. R. Civ. P. 1 (mandating thatthe rules of procedure “should be construed, administered,and employed by the court and the parties to secure thejust, speedy, and inexpensive determination of every actionand proceeding”); see also 4 Charles Alan Wright & ArthurR. Miller, Federal Prac. & Proc. § 1029 (4th ed. 2026)(noting that “[t]he primary purpose of procedural rules is topromote the ends of justice”); id. at § 1217 (noting “the basicphilosophy of the federal rules expressed in Federal Ruleof Civil Procedure 1 [is] that simplicity, flexibility, and theabsence of legalistic technicality are the touchstones of a goodprocedural system”). The exclusionary rule set out in Rule37(c) for a party's failure to timely comply with its disclosureobligations is no exception.*3 For instance, while “exclusion occurs automatically”under Rule 37(c)(1), “the rule permits, but does not require,the imposition of an alternative sanction on a party's motion.”Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d698, 705 (8th Cir. 2018). Moreover, “[w]hen fashioning aremedy, the district court should consider, inter alia, thereason for noncompliance, the surprise and prejudice to theopposing party, the extent to which allowing the informationor testimony would disrupt the order and efficiency of thetrial, and the importance of the information and testimony.”Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008).The Sourze and Westport Development primarily agree thatas to Mr. Comer's expert report and his anticipated experttestimony concerning Euphoric and Unikc, the controllingquestion under Rule 37(c)(1) is whether the failure “wassubstantially justified or is harmless.” At this immediatejuncture, however the Court notes that (1) The Sourze timely(in light of the extension granted above) designated anddisclosed Mr. Comer's expert report, and (2) Mr. Comer hasbeen identified by Euphoric and Unikc in their Rule 26(a)disclosures (even if not with the required expert report).The expert report disclosed by The Sourze appears to becomprehensive and addresses the damages of each Plaintiff.As set out above, the Court—and the parties—anticipate anew amended scheduling order that will extend the discoveryperiod in this case given the recent filing of Plaintiffs' ThirdAmended Complaint. The Court anticipates this extendeddiscovery period will very likely include some extendedperiod for both expert and fact discovery, particularly giventhe nature of the Third Amended Complaint.To be sure, the Court acknowledges the prior Orders that,up to this point, denied relief requested by Euphoric andUnikc related to the missed expert-designation deadline. Ateach point, the Court endeavored to address the specific issueraised and the specific relief sought and to faithfully apply theparticular Rule of Civil Procedure invoked by the Plaintiffsat that time along with the applicable and relevant caselaw inlight of the specific arguments raised by the parties. See alsoMargolin v. Nat'l Ass'n of Immigr. Judges, 146 S. Ct. 1285,1288, 608 U.S. (2026) (“Federal courts adhere to the principleof party presentation. That principle—the rule that points notargued will not be considered—distinguishes our adversarialsystem of justice from an inquisitorial one. Because courts areessentially passive instruments of government, we rely on theparties to frame the issues for decision and decide only thequestions presented.” (internal quotation marks and citationsomitted)).While Euphoric and Unikc earlier sought relief relying onvarious other procedural mechanisms and Rules of CivilProcedure, Rule 37(c)(1)—both requiring exclusion onlyif the failure to disclose was not substantially justifiedor harmless and allowing the Court the discretion tofashion an alternative sanction—has always been in thebackground. Because neither Euphoric nor Unikc, at thisimmediate juncture, seek to use Mr. Comer's expert report ortestimony “on a motion, at a hearing, or at a trial,” WestportDevelopments' motion to exclude under Rule 37(c)(1) ispremature and is DENIED without prejudice. To the extenta Rule 37(c)(1) motion is timely raised at an appropriate timein the later stages of this case, the Court will consider at thattime the procedural posture of the case and all relevant factors
EUPHORIC, LLC; THE SOURZE, LLC; and UNIKC, LLC, Plaintiffs, v. WESTPORT COMMUNITY..., Slip Copy(2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4as then existing—including the notice and opportunity forDefendants to address or respond to Mr. Comer's expert report—in determining whether exclusion is required and/or a lessersanction (or no sanction) is appropriate pursuant to Rule 37(c)(1).IV. The Sourze's Motion to Amend Its InitialSuggestions in Opposition (Doc. 485)*4 In its reply brief, Westport Development identifiedseveral incomplete or inaccurate citations in The Sourze'sinitial suggestions in opposition. (See Doc. 479 at 7-9.) TheCourt has previously addressed incomplete, inaccurate, andmisleading citations found in Plaintiffs' briefing submitted tothe Court. (See Doc. 476 at 32 n.32.)For example, in the initial suggestions in opposition, TheSourze cites a case, “Bonin v. Chadron Community Hospital,”providing the citation “28 F.4th at 1039-40,” as an exampleof the Eighth Circuit “revers[ing] the exclusion of a late-disclosed expert because the sanction ‘prevented the plaintifffrom proving an essential element of her claim,’ holdingthat such exclusion is ‘manifestly unjust.’ ” (Doc. 469 at5.) Rather than an Eighth Circuit case, as best as the Courtcan discern, the true and correct citation intended was toa case, Bonin v. Chadron Community Hospital, 163 F.R.D.656 (D. Neb. 1995), in which the district court declinedto strike the defendant's expert witnesses—which wouldhave been warranted because the expert designations werematerially incomplete—but instead imposed lesser sanctionspermitting further expert discovery. More concerning, thequoted language in The Sourze's initial suggestions inopposition as attributed to Bonin does not appear at all in thatorder, nor could the Court locate any case in which the twoquoted passages appear together.Similarly, The Sourze's initial suggestions in oppositionincludes the following assertion: “The same principle appearsin Watson v. Argee Transportation Co., where the courtreversed exclusion of damages evidence because it ‘strippedthe plaintiff of the ability to prove an essential element of theclaim.’ 378 F.3d 993, 999 (8th Cir. 2004).” (Doc. 469 at 5-6.)The correct citation is Watson v. Argee Transport Co., No.4:23-CV-00722-NCC, 2024 WL 1514294 (E.D. Mo. Apr. 5,2024). The quoted language appears nowhere in the correctlycited case, and neither could the Court locate any case whichincluded the quoted language. The Sourze's initial suggestionsin opposition includes other incorrect, incomplete, andmisleading citations and quotations to additional cases aswell, as outlined in Westport Development's reply brief.In its motion to amend, The Sourze states that after receivingWestport Development's reply, counsel “identified severalquoted passages ... [that] were inaccurately attributed tocertain cases.” (Doc. 485 at 1, 2.) The motion to amendstates that “[t]hese inaccuracies were inadvertent and resultedfrom drafting errors.” (Id.) Accordingly, The Sourze seeksleave to file a proposed amended brief (attached to its motion)that“(a) remove[s] any quotation not supported by the citedauthority; (b) replace[s] those quotations with accurateholdings from controlling Eighth Circuit and Missouriprecedent; (c) strengthens the legal argument using correct,verified citations; and (d) do[es] not expand the scope ofthe arguments made.”(Id. at 3.) Because the Court denies Westport Development'smotion under Rule 37(c)(1) at this juncture as explainedabove, the Court finds that The Sourze's motion for leaveto file a supplemental and corrected brief is moot, and istherefore DENIED.V. Order to Show Cause as to Plaintiff Counsel CeciliaJ. Brown of the Law Firm Cecilia Nuby & AssociatesLLC Why Sanctions Should Not Be Imposed UnderRule 11(b) of the Federal Rules of Civil Procedure, 28U.S.C. § 1927, and the Court's Inherent Authority*5 As noted above, the issue of incorrect, incomplete,and misleading caselaw citations has been previously raisedby several Defendants and addressed by the Court. Againstthis background and at this juncture, further discussion andconsideration is warranted upon review of The Sourze'smotion to amend its suggestions in opposition and theproposed amended suggestions in opposition submitted tothe Court by Plaintiff Counsel Cecilia J. Brown. Despitehaving received notice that her filings to the Court havecontained incorrect, incomplete, and misleading citations tocaselaw, her most recent filing contains more of the same.This is inexplicable to the Court given that Plaintiff CounselBrown specifically filed her motion and proposed amendedsuggestions in opposition to “ensure accuracy and clarity ofthe record,” (Doc. 485-1 at 1), and to include “correct, verifiedcitations” with “accurate holdings from controlling EighthCircuit and Missouri precedent,” (Doc. 485 at 3).A. Incorrect, Incomplete, and Misleading Citations
EUPHORIC, LLC; THE SOURZE, LLC; and UNIKC, LLC, Plaintiffs, v. WESTPORT COMMUNITY..., Slip Copy(2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.51. Motion to AmendThe motion to amend includes the following assertion:8. Courts in this District routinely grantleave to correct citation inaccuraciesto ensure the record is accurate andreliable. See, e.g., Frakes v. RoneTrucking, Inc., No. 13-05032-CV-SW-DGK, 2014 WL 12616945, at1-2 (W.D. Mo. Feb. 14, 2014) [sic](granting leave to amend expert-related filings where corrections werenecessary and no prejudice wouldresult).(Doc. 485.) Although the citation to Frakes appears to becorrect, both the general proposition asserted prior to thecase citation and the Frakes-specific proposition set outin the parenthetical are inaccurate and misleading in thecontext of this case. The so-called “expert-related” issuein Frakes was the parties' requests to extend their expert-designation deadlines (a request the district court granteddespite expressing significant reservations about plaintiffcounsel's diligence and his failure to meet the deadline orrequest an extension to the deadline before it had expired).2014 WL 12616945, at *2. Frakes simply did not involve thecorrection or amendment of any “expert-related filings” or thecorrection of “citation inaccuracies.”2. Proposed Amended Suggestions In OppositionSecond, and even more concerning to the Court, are thenumerous citation deficiencies and inaccuracies contained inthe proposed amended suggestions in opposition itself. Uponreview, the proposed amended suggestions in oppositionpresented to the Court and signed by Plaintiff Counsel Browncontinues to present to the Court inaccurate citations,4attributes quotations to cases in which the quoted languageis not found,5 and misconstrues cited cases as supportingstated propositions.6 These deficiencies, as the Court haspreviously noted, directly implicate counsel's duty of candorto the Court as well as professional and ethical obligationsand responsibilities.B. Conclusion*6 Accordingly, the Court ORDERS that Plaintiff CounselCecilia J. Brown of the law firm Cecilia Nuby & Associates,LLC SHOW CAUSE why she should not be sanctionedunder Rule 11 of the Federal Rules of Civil Procedure,28 U.S.C. § 1927, and the Court's inherent authority forthe inaccurate, incomplete, and misleading citations (andaccompanying assertions or propositions) identified in TheSourze's motion to amend and proposed amended suggestionsin opposition as set out above.7 Plaintiff Counsel Brown'sshow-cause response should include a declaration explaining(1) how she conducted legal research for and drafted themotion to amend The Sourze's suggestions in opposition andThe Sourze's proposed amended suggestions in opposition,(2) what, if anything, she did to validate the citations(including the form of the citation, quoted language, andthe stated holdings or explanations of the cited caselaw),(3) what, if anything, she did differently in researchingand preparing the motion to amend and proposed amendedsuggestions in opposition in ostensibly attempting thanher prior briefing to address the deficiencies identified byopposing counsel and the Court in those other filings, and(4) what specific procedures and steps will be implementedand followed to ensure that future filings submitted to theCourt in this matter do not contain inaccurate, incomplete,or misleading citations to legal authority. In addition to therequired declaration, Plaintiff Counsel Brown is directedfile a show-cause response brief, not to exceed a total of15 pages, addressing why sanctions should not be imposedas considered above. Plaintiff Counsel Brown's show-causeresponse (including both the declaration and the responsebrief) is due on or before July 8, 2026.IT IS SO ORDERED.All CitationsSlip Copy, 2026 WL 1788434
EUPHORIC, LLC; THE SOURZE, LLC; and UNIKC, LLC, Plaintiffs, v. WESTPORT COMMUNITY..., Slip Copy(2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.6Footnotes1As to The Sourze's motions, Defendants filed suggestions in opposition, (Docs. 444, 445), and The Sourzefiled a reply, (Doc. 454). As to Westport Development's motion to exclude, The Sourze filed suggestions inopposition, (Doc. 469), and Westport Development filed a reply, (Doc. 479).2Rather than Rule 6(b)(1)(A), Defendants refer to Rule 16(b)(4) of the Federal Rules of Civil Procedure as theappropriate authority for The Sourze's request. Because The Sourze's expert-designation deadline had notpassed at the time The Sourze requested an extension, the standard for granting the requested extension—good cause—is the same under either provision. The Court proceeds accordingly.3The Court notes that neither Euphoric nor Unikc filed a response to Westport Development's motion to strikeor exclude but only The Sourze filed suggestions in opposition. The Court presumes this is because only TheSourze has formally designated Mr. Comer as its expert and served the required expert report under Rule26 of the Federal Rules of Civil Procedure.4The proposed amended suggestions in opposition includes a citation to a case, “Earth to Go v. Midwest Coal,682 S.W.3d 424 (Mo. App. 2024)”; the correct citation is Earth to Go v. City of Richland, 706 S.W.3d 310(Mo. Ct. App. 2025). (Doc. 485-1 at 4 n.1.) It also cites “Rodriguez v. United States, 823 F.3d 593, 600-01(8th Cir. 2016),” but this citation does not appear to reference an actual case—the federal reporter citation(823 F.3d 593) references a case, Foudy v. Miami-Dade County, 823 F.3d 590, 593 (11th Cir. 2016). TheCourt could not locate any Eighth Circuit case from 2016 with the caption “Rodriguez v. United States.”5The proposed amended suggestions in opposition attributes two quotes to Harvey v. Timber Resources, Inc.,37 S.W.3d 814, 818 (Mo. Ct. App. 2001): (1) “When a plaintiff sues for damages arising directly out of abreach of contract, he or she need not prove past profits or expenses,” and (2) “loss is ascertainable withreasonable certainty from the breach and the profits claimed are not speculative or conjectural and werewithin the contemplation of the parties when the contract was made.” (Doc. 485-1 at 4 n.2.) The quotedlanguage is not found in Harvey, however, but instead is found in another case cited in the proposed amendedsuggestions in opposition, BMK Corp. v. Clayton Corp., 226 S.W.3d 179, 195 (Mo. Ct. App. 2007). In addition,the proposed amended or corrected suggestions in opposition cites the “Rodriguez v. United States” casereferenced above as supporting the following proposition including a purported quotation from Rodriguez:“The Eighth Circuit has repeatedly held that where one party has already met an accelerated disclosuredeadline, and the opposing party is granted substantially more time to prepare its rebuttal, exclusion is notwarranted because the extended schedule ‘eliminates any meaningful risk of surprise or unfairness.’ ” (Doc.485-1 at 7 n.4.) The Court could not locate the quotation attributed to “Rodriguez v. United States” (whichdoes not appear to exist) to any federal or state decision contained in the Westlaw or Lexis databases.6The proposed amended suggestions in opposition cites to a case, Consultus, LLC v. CPC Commodities,No. 19-cv-00821-FJG, 2023 WL 5827222, at *4-5 (W.D. Mar. 29, 2023), as supporting the assertion that“Courts within this District ... apply tailored remedies, such as limiting testimony or striking discrete opinions,rather than imposing wholesale exclusion where lesser measures address any prejudice.” (Doc. 485-1 at 2.)The cited opinion, however, does not concern potential exclusion under Rule 37(c)(1), but instead considersa Daubert challenge to expert testimony. The proposed amended suggestions in opposition cites anothercase in support of this proposition (with a “see also” signal), Consultus, LLC v. CPC Commodities, No. 19-cv-00821-FJG, 2023 WL 11950656 (W.D. Mo. Apr. 12, 2023), which did consider a Rule 37(c)(1) challengebut which found that the late-filed expert designation was not substantially justified or harmless and grantedthe motion to strike/exclude.
EUPHORIC, LLC; THE SOURZE, LLC; and UNIKC, LLC, Plaintiffs, v. WESTPORT COMMUNITY..., Slip Copy(2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.7Similarly, the proposed amended suggestions in opposition cites a case, Kudabeck v. Kroger Co., 338 F.3d856, 861-63 (8th Cir. 2003), as directly supporting the proposition that “[t]he Eighth Circuit also holds thatRule 37(c)(1) is not a strict-liability rule: even where a disclosure is deficient, exclusion is improper if theopposing party had fair notice of the expert, the subject matter, and the substance of the opinions.” (Doc.485-1 at 3.) Kudabeck, like the March 29, 2023 Consultus order, noted above, however, involved a Daubertchallenge, not a Rule 37(c)(1) issue.The proposed amended suggestions in opposition also cites a case, Wagner v. Hesston Corp., 450 F.3d756, 758-59 (8th Cir. 2006), as additional support for the general proposition noted above for which it directlyrelied on the “Rodriguez v. United States” citation (see supra n.7) and provides a parenthetical to the Wagnercitation describing that case as “recognizing that timing-based objections lose force where the opposing partyhas ample time to respond.” (Doc. 485-1 at 7 n.4.) Wagner, like the March 29, 2023 Consultus order andKudabeck, however, involved a Daubert challenge to an expert opinion and does not appear to address inany way a “timing-based objection[ ]” to an expert designation as relevant to a Rule 37(c)(1) challenge.Finally, none of the four cases cited as supporting the proposition that “Courts routinely find a failure todisclose harmless where the opposing party has a fair opportunity to address the expert's opinions throughdiscovery and cross-examination,” (Doc. 485-1 at 8), are actually supportive of that assertion in any way:Kudabeck, 338 F.3d at 861-63 (Daubert challenge, not Rule 37(c)(1) issue); Vanderberg, 906 F.3d at 74-05(affirming district court's finding that failure to timely disclose or designate an expert was not substantiallyjustified and not harmless and ultimately excluding the subject expert testimony); Wegener, 527 F.3d at 693(same); and Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006) (Daubert challenge, notRule 37(c)(1) issue).7Plaintiff Unikc's counsel, Stephen Williams, also signed some of the prior briefs in which the Court identifiedthe same deficiencies and inaccuracies in the prior Order addressing, inter alia, Defendants' motions todismiss and Plaintiffs' motion to amend the complaint. The motion to amend and proposed amendedsuggestions in opposition, however, were filed only on behalf of Plaintiff The Sourze and were accordinglysigned only by Plaintiff Counsel Brown. The Court previously addressed the deficient and unprofessionalbriefing but gave counsel the benefit of all doubt and did not at that earlier time address the matter further.While the problems identified in Plaintiffs' briefing are concerning and raise professional and ethical concerns,particularly concerning to the Court are the two filings addressed above which were presented to the Courtafter counsel received express notice (by opposing counsel and the Court) of inaccurate, incomplete, andmisleading citations in Plaintiffs' submissions filed in this case and which were presented to the Courtspecifically to address the issue and to provide accurate and verified citations to legal authority. While theCourt directs this Order to Show Cause only to Plaintiff Counsel Brown—as the signing attorney for the motionto amend and proposed amended suggestions in opposition—nothing in this Order should be construed orunderstood to foreclose any other appropriate action by the Court regarding the submission of those earlierbriefs, and any future brief or filing submitted to the Court that contains similar inaccurate, incomplete, andmisleading citation issues as the Court deems proper and necessary at a later time.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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