-1- 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMERICAN FURUKAWA, INC., a Delaware 

Corporation, 

Plaintiff, 

v. 

ISTHIHAR HOSSAIN, a Michigan 

Resident, and HT WIRE & CABLE 

AMERICAS, LLC, a Limited Liability 

Company, 

Defendants. 

 / 

Case No. 14-cv-13633 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

STEPHANIE DAWKINS DAVIS

OPINION AND ORDER DENYING PLAINTIFF’S 

MOTION TO STRIKE DEFENDANTS’ WITNESS LIST [112] 

I. INTRODUCTION

 Before the Court is Plaintiff’s Motion to Strike Defendants’ Witness List, 

filed on March 21, 2016. See Dkt. No. 112. Plaintiff has requested oral argument 

on this matter. However, after reviewing the briefing, the Court concludes that oral 

argument will not aid in the resolution of this matter. Accordingly, the Court will 

resolve the Motion on the briefs as submitted. See E.D. Mich. L.R. 7.1(f)(2). For 

the reasons discussed below, the Motion will be DENIED. 

4:14-cv-13633-SDD Doc # 126 Filed 05/11/16 Pg 1 of 5 Pg ID 3330
-2- 

II. BACKGROUND

Plaintiff filed this lawsuit against Isthihar Hossain (“Hossain”). The Court’s 

Scheduling Order on December 3, 2014, set a deadline of April 21, 2015 for parties 

to file witness lists. Dkt. No. 23. Defendant Hossain filed his initial disclosures on 

January 16, 2015, but did not provide a witness list. In the initial disclosures, 

Defendant identified five potential witnesses. Other witnesses were identified 

generically, such as “past and present managers, owners, employees or agents . . .”. 

Dkt. No. 112 (Exhibit 1). 

 On July 7, 2015, the Court amended the Scheduling Order, setting 

September 30, 2015 as the new discovery cutoff date, but did not extend the date 

for filing witness lists. Dkt. No. 40. On September 16, 2015, the Plaintiff filed its 

Amended Complaint, adding HT Wire as a Defendant. Dkt. No. 65. On December 

22, 2015, the Court issued a Second Amended Scheduling Order, extending the 

discovery cutoff to March 15, 2016, but did not extend the deadline for filing 

witness lists. Dkt. No. 107. The Defendants filed their Witness List on February 

23, 2016, a few weeks before the close of discovery. Dkt. No. 109. 

 Defendants have identified a total of 27 witness categories, and 35 witnesses 

by name. Id. Only five of those names were disclosed in the initial disclosures. 

4:14-cv-13633-SDD Doc # 126 Filed 05/11/16 Pg 2 of 5 Pg ID 3331
-3- 

III. LAW AND ANALYSIS

Federal Rule of Civil Procedure 16(f)(1) allows for the Court to sanction a 

party for failing to obey a scheduling order. The Court is given broad discretion but 

must design the sanction to fit the violation. Santos v. Farmers Ins. Exchange, 

2008 WL 723504 (E.D. Mich. Mar. 17, 2008). The striking of a party’s witness list 

is a severe sanction and may be tantamount to granting a default judgment. Id. 

Plaintiff argues that the Defendants have violated the Court’s scheduling 

order by filing their witness list nine months after the Court’s deadline. 

Furthermore, Plaintiff argues that many of the witnesses identified in Defendants’ 

list were not previously disclosed, and they now do not have enough time to 

schedule depositions and to prepare for trial. 

 This case bears a striking similarity to Cotton v. R. Sassak, 2008 WL 

1882708 (E.D. Mich. April 24, 2008). In Cotton, this Court issued an original 

scheduling order setting a discovery cutoff date and a due date for the filing of 

witness lists. Id. at *1. The Court then extended the discovery cutoff date, but did 

not extend the due date for the filing of witness lists. Id. The Defendants’ witness 

list was filed several months after the due date, but 19 days before the close of 

discovery. The Plaintiffs argued that 28 of the 32 listed witnesses were not 

previously disclosed, and that they “did not have time to submit interrogatories or 

to schedule depositions prior to the close of discovery.” Id. However, the Court 

4:14-cv-13633-SDD Doc # 126 Filed 05/11/16 Pg 3 of 5 Pg ID 3332
-4- 

ultimately denied the Plaintiffs’ unopposed motion to strike the witness list. The 

Court held that “Plaintiffs [had] failed to show that the imposition of such a severe 

sanction was warranted.” Id. at *2. The Court further held that, “[t]heir failures to 

take any action to discover the substance of these witnesses’ testimony before the 

discovery period closed and to ask now for any such relief suggest that Plaintiffs 

[were] not significantly prejudiced.” Id. 

 The same reasoning applies in this case. As articulated in Cotton, the 

Plaintiff’s stated reasons do not warrant striking the Defendants’ witness list. 

Moreover, according to Defendants, Plaintiff was made aware of many of the listed 

witnesses through the course of ordinary discovery in November of 2015. See Dkt. 

No. 113 at 11 (Pg. ID No. 2145). What Plaintiff “is complaining about, then, is not 

unfair surprise, but the fact that Plaintiffs did not provide a complete witness list 

before the Court’s initial” deadline, despite the fact that the deadline was set well 

before Plaintiff added Defendant HT Wire to the case. Santos, 2008 WL 723504 at 

*2. “The objectives and procedures of Rule 16 may facilitate discovery, but are not 

a substitute for it.” Id. 

 Instead of pursuing discovery on the remaining, previously undisclosed 

witnesses, or request an extension of discovery, or seek leave to conduct 

depositions outside of the discovery deadline, Plaintiff chose to file the present 

motion. These circumstances, in conjunction with the fact that Plaintiff did not 

4:14-cv-13633-SDD Doc # 126 Filed 05/11/16 Pg 4 of 5 Pg ID 3333
-5- 

raise this issue either at the time of the deadline or in the intervening nine months, 

suggest that Plaintiff has not been prejudiced by the delayed filing of the witness 

list. Id. Accordingly, Plaintiff’s Motion to Strike will be denied. However, if 

Plaintiff finds it necessary to conduct additional discovery or depositions, it should 

file a motion with the Court for immediate consideration, and the Court will take 

appropriate action. 

IV. CONCLUSION

For the reasons discussed above, the Plaintiff’s Motion to Strike [112] is 

DENIED. 

IT IS SO ORDERED. 

Dated: May 11, 2016 /s/Gershwin A Drain 

Detroit, MI HON. GERSHWIN A. DRAIN 

 United States District Court Judge

4:14-cv-13633-SDD Doc # 126 Filed 05/11/16 Pg 5 of 5 Pg ID 3334