The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
Before the Court is Consumer Defendants'*fn1 motion to extend time to serve an expert report and to strike the expert report of plaintiff ( the "motion" or "motion to strike") (Docket No. 383). For the reasons that follow, the motion is granted in part and denied in part.
This action has been pending since September 2006. Plaintiff's remaining claims allege violations of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), as well as various state law torts. In an order dated April 12, 2011 (the "April 12 order") (Docket No. 350), the undersigned set the following schedule: "The pro se plaintiff shall serve any expert report in compliance with the provisions of Rule 26(a)(2), Fed. R. Civ. Proc., on or before May 20, 2011; defendants' expert reports shall be filed on or before June 17, 2011. This is the final schedule." (April 12 order at 5). On June 16, 2011, Consumer Defendants filed the instant motion to strike. In it, they assert that plaintiff's Amended and Supplemented Valuation Report ("amended expert report") (Docket No. 375), dated May 20, 2011, should be stricken under Federal Rule of Civil Procedure 37(c) ("Rule 37(c)") because it is untimely and fails to follow the requirements of Federal Rule of Civil Procedure 26(a)(2) ("Rule 26(a)(2)"). Consumer Defendants assert that plaintiff emailed them a copy of his amended expert report, estimating plaintiff's alleged loss at $549,000,000, on May 24, 2011, four days after the due date. (See motion to strike at 1;*fn2 see also amended expert report at 11). They assert the amended expert report violates Rule 26(a)(2) because (1) it was untimely; (2) it is conclusory on the issue of which defendants caused which damages; and (3) it fails to list the other cases in which the expert testified at trial or in a deposition within the last four years pursuant to Rule 26(a)(2)(v) and fails to provide a statement of compensation to be paid for the study or testimony pursuant to Rule 26(a)(2)(vi). (See motion to strike at 2). As a sanction for these failures, Consumer Defendants seek an order pursuant to Rule 37(c) precluding plaintiff from presenting expert testimony at trial or in support of a summary judgment motion. (See id.). Finally, they ask for a sixty-day extension (to be measured from the date of the order disposing of the motion) to serve their expert report, "since [Consumer Defendants] [are] unable to obtain a rebuttal expert without a proper expert report first being submitted by plaintiff." (Id. at 1, 3).
Rule 37(c)(1) allows a court to preclude expert testimony and information included in an expert report if the party proffering it has violated Rule 26(a) by "failing to provide information or identify a witness as required" by that subsection. Fed. R. Civ. Proc. 37(c)(1). Preclusion for violation of Rule 26(a) is not mandatory. Rather, courts in this Circuit have recognized that preclusion is a "harsh sanction." See Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., Ltd., - F. Supp. 2d -, 2011 WL 182056, at * 4 (S.D.N.Y. Jan. 14, 2011); see also Lab Crafters, Inc. v. Flow Safe, Inc., No CV-03-4025, 2007 WL 7034303, at *2 (E.D.N.Y. Oct. 26, 2007) (recognizing that preclusion is a "drastic remedy"). Thus, preclusion is a discretionary remedy even if "the trial court finds that there is no substantial justification and the failure to disclose is not harmless." Design Strategy. Inc. v. Davis, 469 F.3d 284, 297 (2d Cir. 2006) (internal quotation marks omitted).
In deciding whether to impose sanctions, such as preclusion, the court must consider "(1) the party's explanation for the failure to comply with the [disclosure requirement]; (2) the importance of the testimony of the [putatively] precluded witness[es]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance." Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (internal quotation marks omitted, first and third alterations in original).
Consumer Defendants assert that they received plaintiff's amended expert report on May 24, 2011, four days after the April 12 order required it to be served. They assert that plaintiff "emailed a copy to us on Tuesday, May 24th and mailed a service copy postmarked May 24th." (Motion to strike at 1). Consumer Defendants provide no evidence for this assertion, such as a declaration attaching the email and/or a postmarked envelope. However, the amended expert report's affidavit of service, which plaintiff filed with the Court on May 24, 2011, asserts that plaintiff's Expert Report was mailed on May 20, 2011. (See Docket No. 375-1). The affidavit of service trumps Consumer Defendants' letter representation.
Moreover, even if the amended expert report were untimely by four days, application of the Balsamico factors indicate that it should not be precluded under Rule 37(c). The first factor--explanation for the alleged lateness--is moot since plaintiff has submitted proof of timely compliance and therefore provides no explanation for lateness. As to Balsamico's second factor, the report sought to be precluded is important to plaintiff's case. The amended expert report calculates plaintiff's losses, premised on the assumption that the allegations in the Second Amended Complaint in (related case) Conte v. County of Nassau, Case No. 06-cv-4746 and the Third Amended Complaint in the instant case are true. (See amended expert report at 11). Regarding prejudice, it is difficult to see how the Consumer Defendants could have been prejudiced by a delay of four days, especially when they had until June 17, 2001, to file their own expert report. The final factor--the availability of a continuance--is irrelevant here. A briefing schedule for motions for summary judgment has not been set, nor is there a trial date, therefore there is no need for a continuance.
Consumer Defendants present no legal support for their assertion that this Court should strike the amended expert report based on a four-day delay. (See Motion to Strike at 1 (stating that plaintiff's "expert disclosure is untimely and should be stricken for this reason alone")). The cases they cite do not strike expert reports for untimeliness; rather the cases they point to merely deny motions to extend the deadline for expert disclosure. See Murray v. Roadway Express, No. 09-cv-1337, 2010 WL 3023905, at *2 (E.D.N.Y. July 30, 2010); Levy v. Eisner, No. 04 Civ. 0398, 2006 WL 2015368, at *1 (S.D.N.Y. July 12, 2006). While the Court recognizes that untimeliness can be a valid reason to strike an expert disclosure, that ...