UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AFS/IBEX, A DIVISION OF 

METABANK, 

 

 Plaintiff, 

 

v. 

 Case No.: 15-cv-11409 

Honorable Gershwin A. Drain 

TRAVELERS PROPERTY 

CASUALTY COMPANY OF 

AMERICA, et al., 

 

 Defendants. 

___________________________/ 

 

ORDER GRANTING PLAINTIFF-ASSIGNEES/CROSS-CLAIMANTS’ 

MOTION TO STRIKE EXHIBITS [#166] AND GRANTING IN PART AND 

DENYING IN PART PLAINTIFF-ASSIGNEES/CROSS-CLAIMANTS’ 

MOTION TO STRIKE WITNESS [#171]

 I. Introduction 

 Presently before the Court is the Plaintiff-Assignees/ Cross-Claimants, 

Margaret Lauber’s and Janet Vogel’s (hereinafter “VL”), Motion to Strike Exhibits, 

filed on August 24, 2017. Defendants, Keith and Karen Larson, filed a Response to 

VL’s Motion to Strike Exhibits on August 27, 2017. Also, before the Court is VL’s 

Motion to Strike Witness, filed on August 25, 2017. Defendants filed a Response 

to VL’s Motion to Strike Witness on August 26, 2017. 

 A hearing on these matters was held on August 30, 2017. After the hearing 
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concluded, the Court entered an order requiring the parties to submit a stipulation 

no later than September 7, 2017 if they came to an agreement concerning the 

disputes raised by VL’s present motions. The parties submitted a Stipulation by 

the deadline set by the Court indicating they had resolved some of the disputes 

relative to Defendants’ proposed exhibits. Accordingly, the instant order only 

addresses Plaintiff-Assignees/Cross-Claimants’ objections to Defendants’ 

proposed exhibits A-L, P-W, Y, Z, BB, CC, EE, FF, and HH. 

 For the reasons that follow, the Court will grant VL’s Motion to Strike 

Exhibits and will grant in part and deny in part VL’s Motion to Strike Witness. 

 II. VL’s Motion to Strike Exhibits 

On August 2, 2017, this Court entered an Order Denying VL’s Motion for 

Default Judgment. Dkt. No. 157. VL moved for default judgment pursuant to Rule 

37 of the Federal Rules of Civil Procedure based on the failure of Defendants to 

produce requested discovery. The Court determined that the sanction of default 

judgment was not warranted, but held the less drastic sanction of precluding the 

Defendants from relying on documents produced subsequent to the discovery cutoff 

date was appropriate. The Court’s August 2, 2017 Order also prohibited the 

Defendants from relying on expert testimony because they failed to serve VL with 

any expert disclosures. 

 On August 24, 2015, the Defendants submitted their Initial Disclosures, 
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which identified 59 prospective exhibits, but none were included with the 

disclosures. Defendants’ Initial Disclosures identified Kenneth Landini as a 

potential witness. In July of 2016, the Defendants’ prior counsel produced 10 

documents, totaling 226 pages. In August of 2016, the Defendants produced an 

additional 16 documents, totaling 527 pages. 

 On or about August 22, 2017, the Defendants transmitted 34 proposed trial 

exhibits to VL. At least 29 of the proposed trial exhibits were never produced and 

some that were produced do not match the documents produced in 2016. 

Defendants’ current counsel did not represent the Defendants in 2016, thus he is 

unable to explain the discrepancies with respect to the documents produced in 2016 

and the documents produced in August of this year. Defendants argue that their 

former counsel indicated in an email to VL’s counsel that he could “come over” to 

counsel’s office to have “a copy service retrieve, bate stamp and copy as the parties 

require” the requested discovery. However, VL’s counsel maintains that 

Defendants’ former counsel committed to transmitting additional documents once 

produced by Defendants. 

 Upon review of the parties’ briefing and consideration of the arguments 

presented at the August 30, 2017 hearing, the Court concludes that it will not permit 

the introduction of any exhibits that were not produced prior to the discovery cutoff 

date in this matter. Nor will it permit the introduction of documents that are 
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different than the documents produced in 2016. 

III. VL’s Motion to Strike Witness 

VL also moves to strike the testimony of Defendants’ proposed witness, 

Kenneth Landini. VL argues that Defendants’ characterization of Landini as a fact 

witness is a mere subterfuge to thwart this Court’s August 2, 2017 order excluding 

expert testimony. VL asserts that Landini was hired by Defendants in August of 

2014, well after VL was employed by Defendants’ insurance agency. As such, VL 

maintains that Landini will not provide relevant fact testimony because he was not 

around when the records at issue herein were generated. Moreover, VL assert that 

there is serious concern Landini did not author the report concerning the insurance 

agency’s fraudulent scheme. 

 In response, Defendants assert that Landini will testify to the fact that he was 

hired by the Defendants as a forensic accountant and will not give any opinion that 

anyone committed fraud. 

 Upon review of the parties’ briefing and consideration of the arguments 

presented during the August 30, 2017 hearing, the Court concludes that Landini 

may testify that he was hired by the Defendants to investigate the fraudulent 

scheme at issue herein. However, he may not discuss his report or its conclusions 

or in any way offer expert testimony in this matter. 
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 IV. Conclusion 

Accordingly, for the reasons stated on the record and contained in this order, 

VL’s Motion to Strike Exhibits [#166] is GRANTED. Proposed trial exhibits A-L, 

P-W, Y, Z, BB, CC, EE, FF, and HH are HEREBY STRICKEN. 

 VL’s Motion to Strike Witness [#171] is GRANTED IN PART and DENIED 

IN PART. Landini may testify as a fact witness only, and may not offer any expert 

testimony, nor testimony concerning his report or its conclusions. 

 SO ORDERED. 

Dated: September 14, 2017 /s/Gershwin A. Drain 

 GERSHWIN A. DRAIN 

 United States District Judge 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record 

by electronic and/or ordinary mail. 

/s/ Tanya Bankston 

Deputy Clerk