[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-10229 

Non-Argument Calendar

________________________

D.C. Docket No. 4:16-cv-00314-HLM

UNITED STATES OF AMERICA, 

upon the relation and for the use and benefit of 

Tennessee Valley Authority,

Plaintiff - Appellee,

versus

AN EASEMENT AND RIGHT-OF-WAY OVER 4.42 ACRES OF LAND,

MORE OR LESS, IN WHITFIELD COUNTY, GEORGIA,

Defendant,

JOHN B. POSTELLE,

Defendant - Appellant.

________________________

Appeals from the United States District Court

for the Northern District of Georgia

________________________

(August 7, 2019)

Case: 19-10229 Date Filed: 08/07/2019 Page: 1 of 11 
2

Before TJOFLAT, ROSENBAUM, and EDMONDSON, Circuit Judges.

PER CURIAM:

In this eminent domain action, John Postelle appeals the final judgment 

following a jury verdict and appeals the district court’s denial of Postelle’s motion 

for a new trial. Postelle’s chief argument on appeal is that the district court abused 

its discretion by -- pursuant to Fed. R. Civ. P. 37(c)(1) and the district court’s local 

rules -- excluding Postelle’s expert-witness testimony. No reversible error has 

been shown; we affirm.

I. Background

This appeal stems from a project by the Tennessee Valley Authority 

(“TVA”) to construct and to maintain a new electric power transmission line in 

Gordon and Whitfield Counties, Georgia. In 2016, TVA filed this eminent domain 

action to acquire a permanent easement and right-of-way across 4.42 acres of a 

127.75-acre parcel owned by Postelle. The sole issue for trial was a determination 

Case: 19-10229 Date Filed: 08/07/2019 Page: 2 of 11 
3

of the amount of just compensation to which Postelle was entitled as a result of the 

taking. 

The district court issued a Scheduling Order establishing discovery 

deadlines, including dates on which each party was required to make expert 

disclosures, in accordance with Fed. R. Civ. P. 26(a)(2). On 29 June 2017 (the 

deadline for Postelle’s Rule 26(a)(2) expert disclosures), Postelle filed a motion 

seeking an extension of the expert disclosure deadline. Among other reasons, 

Postelle said an extension was necessary to allow Postelle’s expert time to review 

TVA’s responses to Postelle’s recently-served discovery requests before the expert 

prepared his written report. At no time did Postelle seek to extend the close of 

discovery, scheduled for 20 November 2017.1

The district court granted Postelle’s motion and issued the order proposed by 

Postelle, which set forth these new expert disclosure deadlines:

a. [Postelle’s] Expert Disclosures: 30 days after [TVA] provides the 

information requested in [Postelle’s] June 23, 2017 discovery 

requests;

1 In his reply brief, Postelle characterizes his failure to seek an extension of the close of 

discovery as an “oversight” or a “scrivener’s error” that should have been noticed and corrected 

by the district court. No; we reject this argument as entirely without merit. Moreover, to the 

extent Postelle attempts to raise this argument (and other arguments) for the first time in his reply 

brief, they are not properly before us and will not be addressed on appeal. See Big Top Koolers, 

Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).

Case: 19-10229 Date Filed: 08/07/2019 Page: 3 of 11 
4

b. [TVA’s] Expert Disclosures: 30 days after [Postelle’s] Expert 

Disclosures are due.

On 25 August 2017, TVA responded to Postelle’s discovery requests. In its 

notice of service, TVA stated that “[p]ursuant to the Order Modifying Scheduling 

Order . . ., Postelle’s expert disclosures are due September 25, 2017.” 

On 22 September, Postelle’s lawyer sent an email to TVA’s lawyer in which 

Postelle’s lawyer acknowledged that Postelle’s expert disclosures were due on 25 

September and sought TVA’s consent to another extension. It appears that TVA’s 

lawyer, however, refused to give unconditional consent. In response, Postelle’s 

lawyer sent a second email (sent on the 25 September deadline), withdrawing the 

earlier request for consent. Postelle’s lawyer asserted, instead, that -- because 

TVA’s discovery responses were inadequate -- Postelle’s 30-day time period for 

filing expert disclosures had not yet been triggered. Postelle, however, filed no 

motion in the district court seeking another extension or an order compelling TVA 

to respond more fully to Postelle’s discovery requests. Nor did Postelle file (in 

whole or in part) his expert disclosures. 

Meanwhile, TVA filed its Rule 26(a)(2) expert disclosures on 25 October 

2017. TVA also moved to exclude Postelle’s expert testimony -- pursuant to Fed. 

R. Civ. P. 16(f)(1)(C) and 37(c)(1) -- on grounds that Postelle had failed to comply 

with the court’s scheduling order and with Rule 26(a)(2).

Case: 19-10229 Date Filed: 08/07/2019 Page: 4 of 11 
5

On 5 December 2017, the district court granted TVA’s motion to exclude. 

The district court rejected Postelle’s position that the 30-day deadline for filing 

expert disclosures was never triggered. Because Postelle failed to comply with 

both Rule 26(a)(2) and Local Rule 26.2C -- and failed to demonstrate that such 

failure was substantially justified or harmless -- the district court determined that 

exclusion of Postelle’s expert testimony was appropriate. The district court also

denied Postelle’s later motions (1) for reconsideration of the district court’s 5 

December 2017 order and (2) to reopen and extend discovery, both of which 

challenged the district court’s exclusion order.

Following a three-day trial, the jury returned a verdict awarding Postelle

$35,000 in just compensation; the district court entered final judgment consistent 

with the jury’s verdict. Postelle then moved unsuccessfully for a new trial,

challenging again the district court’s 5 December 2017 exclusion order.

II. Discussion

We review the district court’s rulings about discovery under an abuse-ofdiscretion standard. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 

1292, 1306 (11th Cir. 2011). Our review of a ruling under Rule 37 “is sharply 

Case: 19-10229 Date Filed: 08/07/2019 Page: 5 of 11 
6

limited to a search for an abuse of discretion and a determination that the findings 

of the trial court are fully supported by the record.” Serra Chevrolet, Inc. v. Gen. 

Motors Corp., 446 F.3d 1137, 1146-47 (11th Cir. 2006) (quotation omitted). 

“[U]nder the abuse of discretion standard, we will leave undisturbed a district 

court’s ruling unless we find that the district court has made a clear error of 

judgment, or has applied the wrong legal standard.” Josendis, 662 F.3d at 1307 

(quotation omitted). 

“Federal Rule of Civil Procedure 26 requires that ‘a party must make expert 

witness disclosures at the times and in the sequence [that] the court orders.’” 

Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 717 (11th Cir. 2019) (alterations 

omitted) (citing Fed. R. Civ. P. 26(a)(2)(D)). Under the initial disclosure 

obligations in Rule 26(a)(1), a party must disclose only the name and address of 

potential witnesses. Fed. R. Civ. P. 26(a)(1). Disclosure under Rule 26(a)(2), 

however, “contemplates not only the identification of the expert, but also the 

provision of a written report containing ‘a complete statement of all opinions’ and 

‘the basis and reasons therefor.’” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 

2008) (affirming the district court’s exclusion of an expert report for failure to 

comply with Rule 26). “Because expert witness discovery rules are designed to 

allow both sides in a case to prepare their cases adequately and to prevent surprise, 

Case: 19-10229 Date Filed: 08/07/2019 Page: 6 of 11 
7

compliance with the requirements of Rule 26 is not merely aspirational.” Id. at 

1266. 

Congress has provided for “a self-executing sanction for failure to make a 

disclosure required by Rule 26(a).” See Fed. R. Civ. P. 37(c)(1) advisory 

committee’s note to 1993 amendment. Under Rule 37(c)(1), a party that “fails to 

provide information or identify a witness as required by Rule 26(a) . . . is not 

allowed to use that information or witness to supply evidence on a motion, at a 

hearing, or at a trial, unless the failure was substantially justified or is harmless.” 

Fed. R. Civ. P. 37(c)(1). We have said that “[c]ourts have broad discretion to 

exclude untimely expert testimony . . ..” Guevara, 920 F.3d at 718 (upholding the 

district court’s exclusion of an expert’s untimely-filed report).

In a similar way, the district court’s local rule establishes these requirements 

for expert disclosure:

Any party who desires to use the testimony of an expert witness shall 

designate the expert sufficiently early in the discovery period to 

permit the opposing party the opportunity to depose the expert and, if 

desired, to name its own expert witness sufficiently in advance of the 

close of discovery so that a similar discovery deposition of the second 

expert might also be conducted prior to the close of discovery. 

Any party who does not comply with the provisions of the foregoing 

paragraph shall not be permitted to offer the testimony of the party’s 

expert, unless expressly authorized by Court order based upon a 

showing that the failure to comply was justified. 

N.D. Ga. L.R. 26.2C (emphasis added).

Case: 19-10229 Date Filed: 08/07/2019 Page: 7 of 11 
8

As an initial matter, Postelle contends that the district court’s exclusion of 

Postelle’s expert testimony was dispositive of Postelle’s claim for damages --

tantamount to a directed verdict or a dismissal with prejudice -- and, thus, required

a finding of willfulness or of bad faith. We disagree. Despite the exclusion order, 

Postelle’s case proceeded to a jury trial during which Postelle was able to introduce 

valuation evidence through cross-examination of TVA’s expert witness and 

through his own testimony. At the close of Postelle’s evidence, the district court 

denied TVA’s motion for judgment as a matter of law. The jury also awarded 

Postelle damages in excess of the valuation evidence introduced by TVA. On this 

record, we cannot conclude that the district court’s exclusion order constituted a 

dispositive ruling requiring a bad faith showing. Cf. BankAtlantic v. Blythe 

Eastman Paine Webber, Inc., 12 F.3d 1045, 1048-49 (11th Cir. 1994) (“Our 

caselaw is clear that only in a case where the court imposes the most severe 

sanction -- default or dismissal -- is a finding of willfulness or bad faith failure to 

comply necessary.”).

Postelle also contends that the district court relied improperly on an 

erroneous factual finding: that Postelle failed entirely to identify an expert witness. 

This contention is contradicted flatly by the record. That Postelle identified the 

name of his proposed expert witness as part of his Rule 26(a)(1) initial disclosures 

Case: 19-10229 Date Filed: 08/07/2019 Page: 8 of 11 
9

is undisputed. The record makes clear, however, that the district court decided to 

exclude Postelle’s expert testimony based on its determination that Postelle later 

failed to fulfill his obligations under Rule 26(a)(2). The district court’s 

determination is supported by the record. Among other things, Rule 26(a)(2) 

requires a written report containing the expert’s opinions and the underlying basis 

and reasons for that opinion: that Postelle filed no such written report is clear. Cf. 

Reese, 527 F.3d at 1265 (explaining that providing an expert witness’s name was 

insufficient to discharge a party’s disclosure obligation under Rule 26(a)(2) and 

Local Rule 26.2C). 

The district court also abused no discretion in concluding that Postelle failed 

to demonstrate substantial justification for his non-compliance with Rule 26(a)(2). 

First, the discovery information Postelle sought from TVA was not critical to 

forming an expert opinion about the fair market value of Postelle’s property. That 

Postelle asserts that his proposed expert witness had in fact assessed the value of 

Postelle’s damages before trial (and without the requested discovery from TVA) 

bolsters that conclusion. The district court thus determined reasonably that a 

written report for Postelle could have been prepared and filed by the established 

deadline without taking account of the thoroughness of TVA’s responses to 

Postelle’s discovery requests and, if necessary, the report might be supplemented 

Case: 19-10229 Date Filed: 08/07/2019 Page: 9 of 11 
10

later pursuant to Rule 26(e). See Reese, 527 F.3d at 1265-66 (concluding that a 

party’s failure to comply with Rule 26(a)(2) was “unjustified and harmful” to the 

non-moving party where the expert witness could have prepared a written report 

based upon the then-available information and supplemented the report after 

reviewing the later-provided discovery documents). 

Moreover -- to the extent Postelle considered essential the discovery sought 

from TVA -- we agree with the district court that Postelle “could have and should 

have” taken some affirmative act in the district court to pursue the disputed 

discovery or to clarify or to extend the disclosure deadline. Instead, Postelle did 

nothing other than to notify TVA’s lawyer of Postelle’s opinion that the 

Scheduling Order’s 30-day time limit had not been triggered. That Postelle

decided unilaterally that his obligations under the Scheduling Order were not 

triggered -- then did nothing more for three months -- is insufficient justification 

for his non-compliance with Rule 26. See Guevara, 920 F.3d at 719 (no abuse of 

discretion found where party engaged in unreasonable delay and filed a 

supplemental report after the close of discovery without seeking leave of the court 

or moving to extend discovery); Reese, 527 F.3d at 1266 (no abuse of discretion in 

excluding expert report where party “could have filed a motion to extend the 

Case: 19-10229 Date Filed: 08/07/2019 Page: 10 of 11 
11

discovery period so as to permit a proper disclosure” and “offered no excuse for 

failing to do so.”). 

Nor are we persuaded that the district court erred in concluding that TVA 

would suffer harm or prejudice as a result of Postelle’s failure to comply with Rule 

26(a)(2).

2

 At the very least, Postelle’s failure to disclose timely his proposed

expert testimony denied TVA the opportunity -- before the close of discovery -- to 

depose Postelle’s expert or to engage in meaningful discovery about the 

information underlying the expert’s opinions. On this record, we cannot conclude 

that the district court abused its discretion in excluding Postelle’s expert 

testimony.3

 

AFFIRMED.

2 We also note that a showing of harm or prejudice is seemingly unnecessary under the district 

court’s local rules. See N.D. Ga. L.R. 26.2(C). Thus -- even absent a showing of prejudice -- the 

district court might have had discretion to exclude Postelle’s expert testimony under its local 

rules.

3 We have also considered Postelle’s argument that the district court erred in denying his motion 

to reopen discovery, pursuant to Fed. R. Civ. P. 6(b)(1)(B). This reopening decision is another 

decision that is left to the broad discretion of the district court. On this record, we are 

unconvinced that excusable neglect has been demonstrated that might justify a reopening of 

discovery. In addition, we accept that TVA -- at a late stage -- would be prejudiced by having to 

take the large number of depositions proposed by Postelle’s lawyer. That several months 

remained between the close of discovery and the projected trial date is not outcomedeterminative. The district court abused no discretion in denying Postelle’s motion to reopen. 

Case: 19-10229 Date Filed: 08/07/2019 Page: 11 of 11