UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

BRAUN BUILDERS, INC.,

Plaintiff,

Case Number 09-11534-BC

v. Honorable Thomas L. Ludington

VIVKEKANAND KANCHERLAPALLI, 

SHARON KANCHERLAPALLI, THUMB

NATIONAL MORTGAGE, LLC, INTERNAL 

REVENUE SERVICE, UNITED STATES OF

AMERICA, AND CLINT BRAUN,

Defendants, 

and

VIVKEKANAND KANCHERLAPALLI 

AND SHARON KANCHERLAPALLI, 

Third-Party Plaintiffs,

v.

CLINT BRAUN, 

Third-Party Defendant,

and

VIVKEKANAND KANCHERLAPALLI

AND SHARON KANCHERLAPALLI.

Counter-Claimants, ORDER DENYING AS MOOT MOTION

TO STRIKE REPLY, GRANTING 

v. MOTION TO STRIKE EXPERT 

WITNESSES, AND DENYING AS MOOT

BRAUN BUILDERS, INCORPORATED MOTION FOR EXTENSION OF TIME 

AND CLINT BRAUN TO FILE RESPONSE TO MOTION FOR

LEAVE TO FILE AMENDED 

Counter-Defendants. COMPLAINT

______________________________________ /

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ORDER DENYING AS MOOT MOTION TO STRIKE REPLY, GRANTING MOTION

TO STRIKE EXPERT WITNESSES, AND DENYING AS MOOT MOTION FOR

EXTENSION OF TIME TO FILE RESPONSE TO MOTION FOR LEAVE TO FILE

AMENDED COMPLAINT

Plaintiff Braun Builders’ March 26, 2009 complaint, originally filed in Huron County Circuit

Court, alleges claims for breach of contract, foreclosure of a construction lien, and assorted equitable

relief. The case was removed to this Court by the U.S. Internal Revenue Service, which asserted

a tax lien on the underlying property. [Dkt. # 1]. Also joined as a defendant was Thumb National

Mortgage, which asserted a mortgage lien on the property. Cross motions for summary judgment

filed by Defendants Vivkekanand and Sharon Kancherlapalli and Plaintiffs Braun Builders and Clint

Braun are currently pending. [Dkt. # 36 & 37]. Those motions are set for hearing on March 8, 2010.

Now before the Court are Plaintiffs’ motions to strike expert witnesses [Dkt. # 54] and to strike the

Kancherlapallis’ reply to Plaintiffs’ response to the Kancherlapallis’ motion for summary judgment

[Dkt. # 55]. 

The motion to strike the reply brief [Dkt. # 55] will be denied as moot because it was

withdrawn by Plaintiffs Braun Builders and Clint Braun [Dkt. # 57]. It should be noted, however,

that the Federal Rules of Civil Procedure were amended, effective December 1, 2009. The briefing

submitted by the parties relies on the old version of the rules. [Dkt. # 56 & 57].

Plaintiffs’ motion to strike the Kancherlapallis’ expert witnesses [Dkt. # 54] will be granted.

The Kancherlapallis’ did not make the expert witness disclosures required by the federal rules and

the scheduling order entered in this case. Fed. R. Civ. P. 26(a)(2)(B) & 37(c); [Dkt. # 30].

Defendants’ expert witness disclosures, as described in Rule 26(a)(2)(B), were due on October 30,

2010. Although the Kancherlapallis named an expert witness in their initial disclosures, they did

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not provide the written expert report by the required date. Pursuant to Rule 37(c), “[i]f a party fails

to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed

to use that information or witness to supply evidence . . . unless the failure was substantially justified

or harmless.” 

The Kancherlapallis filed a response on February 3, 2010 indicating that they do not intend

to call an expert witness, and contending the motion to strike is moot. [Dkt. # 59]. However, the

motion will be granted because it correctly contends that expert witnesses may not be called unless

an expert report is timely provided. Fed. R. Civ. P. 37(c). Although the Kancherlapallis named an

expert witness in their initial disclosures, they did not provide Plaintiffs with an expert report.

Consequently, the Kancherlapallis may not introduce evidence provided by their proposed expert.

Accordingly, it is ORDERED that the motion to strike expert witnesses [Dkt. # 54] is

GRANTED. 

It is further ORDERED that the motion to strike Defendants’ reply to Plaintiffs’ response

[Dkt. # 55] is DENIED AS MOOT. 

It is further ORDERED that, to the extent it is still pending, Defendants’ motion for an

extension of time to file a response to Plaintiffs’ motion for leave to file an amended complaint [Dkt.

# 26] is DENIED AS MOOT. The relief requested was already granted by the Court [Dkt. # 28].

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: February 4, 2010

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on February 4, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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