Norfolk Southern Railway Company v.Citizens of the City of Liberty

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
NORFOLK SOUTHERN RAILWAY 	)
COMPANY, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 4:25-CV-00064-DGK
)
THE MAYOR, COUNCILMEN, and 	)
CITIZENS OF THE CITY OF LIBERTY, 	)
)
Defendants. 	)
ORDER GRANTING MOTION TO STRIKE DECLARATIONS
This lawsuit arises from Plaintiff Norfolk Southern Railway Company’s (“Norfolk”) claim
that Defendant Liberty, Missouri (“the City”), entered into an agreement in 1964 with Norfolk’s
predecessor-in-interest whereby the railroad allowed the City to construct and use a private grade
crossing across the railroad’s tracks. 	In return, the City agreed to indemnify the railroad for any
injuries arising from its use.
In 2018, an accident occurred at the crossing, leading to two lawsuits. 	The City refuses to
indemnify Norfolk in these lawsuits, arguing that the agreement is void and/or unenforceable.
The parties have briefed cross-motions for summary judgment.
Now before the Court is Norfolk’s Motion to Strike the Declarations of Curtis Renno and
Curt Wenson. 	ECF No. 126. 	Renno and Wenson are two previously undisclosed witnesses
whose declarations the City submitted in support of the its motion for summary judgment.
After carefully reviewing the record and the law, the Court holds the City violated Federal
Rules of Civil Procedure 26(a) and 26(e) by failing to disclose these witnesses earlier, and its
failure to disclose these witnesses was not substantially justified or harmless. 	Accordingly, the
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motion is GRANTED. 	The Court holds the City cannot rely on declarations from these
individuals in its motion for summary judgment, nor can the City call either individual as a witness
at trial or otherwise use their testimony.
Background
Curtis Wenson is a city employee who witnessed the vehicle train collision at issue in the
Underlying Actions. 	Curtis Renno is the City Administrator of Liberty. 	Prior to submitting their
declarations, Defendants never identified either of these individuals as witnesses pursuant to Rule
26. 	Additionally, on April 9, 2025, Norfolk served interrogatories on the City which specifically
required it to identify all witnesses it will or may call to testify for any purpose at trial. 	The City
responded by raising boilerplate objections and claiming certain privileges. 	The City did not
supplement its response by disclosing Wenson or Renno until one month after the close of
discovery, when the City attached Wenson and Renno’s declarations in support of its motion for
summary judgment.
Standard
Federal Rule of Civil Procedure 26 prescribes the parties’ duty to disclose information.
Rule 26(a) requires a party to disclose “the name and, if known, the address and telephone number
of each individual likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses.” 	Fed. R. Civ. P.
26(a)(1)(A)(i). 	Rule 26(e) states, a party “must supplement or correct its disclosure or response .
. . if the party learns that in some material respect the disclosure or response is incomplete or
incorrect.” 	Fed. R. Civ. P. 26(e)(1)(A).
Rule 37(c)(1) provides, “If 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
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evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” 	This is “a self-executing sanction for failure to make a disclosure required by Rule
26(a).” 	Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018)
(quoting Fed. R. Civ. P. 37(c) advisory committee’s note to 1993 amendment). 	Where there is a
violation, the burden is on the potentially sanctioned party to prove harmlessness or justification.
Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003).
Analysis
Norfolk argues the City did not disclose any of the declarants as witnesses in its Rule
26(a)(1) disclosure, a Rule 26(e) disclosure, or at any point during the discovery period. 	Norfolk
contends that since the City did not identify these individuals as witnesses during discovery, it did
not depose them or otherwise evaluate the basis for their testimony. 	Hence, it has suffered
prejudice because it now has no time to investigate their statements and or an opportunity to depose
them.
In response, the City argues that testimony of undisclosed witnesses should not be barred
unless there is bad faith involved, and there was no bad faith in failing to disclose these witnesses.
The City cites Bergfeld v. Unimin Corporation for support. 	319 F.3d 350, 355 (8th Cir. 2003)
(“The ‘use of an undisclosed witness should seldom be barred unless bad faith is involved.’”)
(quoting Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989)). 	With respect
to Renno, the City argues the fact that his name appears dozens of times in documents it produced
to Norfolk disproves any possibility of bad faith and proves that the lack of disclosure of Renno
was harmless. 	It states the primary purpose in submitting Renno’s declaration was to provide
reliable, admissible evidence regarding a second set of tracks at the railroad crossing at issue. 	It
explains it expected to receive this information during the deposition of Norfolk’s corporate
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representative on March 20, 2026, but the corporate representative testified Norfolk knew nothing
about the second set of tracks at the crossing except that they were constructed at some point
between 1990 and 1996. 	Thus, the City contends, using an undisclosed witness to provide
information about the crossing is “fully justified.” 	Suggestions In Opp’n at 3, ECF No. 133. 	As
for Wenson, the City asserts the only fact he provided is that the City has been a special charter
city since at least 1964, a fact which Norfolk does not dispute and which is subject to judicial
notice. 	Finally, the City notes it has supplemented its discovery responses while Norfolk’s motion
to strike has been pending, and it included these two witnesses in such supplementation, along
with other information.
The City’s argument is unavailing. 	As a threshold matter, the City’s citation to the
Bergfeld case from 2003—which is essentially a citation to the Mills case from 1989—is
unpersuasive because the contemporary view in the Eighth Circuit is that Rule 37(c)(1) means
exactly what it says: 	“If 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 on
a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
This is “a self-executing sanction for failure to make a disclosure required by Rule 26(a).”
Vanderberg, 906 F.3d at 702. 	Granted, where the exclusion of such evidence is tantamount to
dismissal, the district court may, “on motion,” consider an alternative sanction. 	Id. at 705. 	But
the City has not made such a motion or suggested any alternate sanction. 	Thus, the Court must
exclude the information from these witnesses unless the failure to identify them was substantially
justified or harmless.
Applying the recent Eighth Circuit caselaw here, the Court finds the City has not justified
its failure to disclose. 	At best, the City’s failure to identify these witnesses until well after the
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close of discovery was negligent; at worst, the failure was an illicit attempt to gain a tactical
advantage—something which would be consistent with other behavior exhibited by the City during
this litigation. 	See Order Regarding Disc. Dispute at 6, ECF No. 104 (noting the City’s refusal to
answer interrogatories about how a box filled with relevant documents suddenly appeared was
“woefully insufficient, so deficient that it appears to be purposefully insufficient”). 	Either way,
its failure to disclose well before the close of discovery was not substantially justified. 	Further,
because the City did not identify these individuals as witnesses, Norfolk has been deprived of an
opportunity to investigate their statements and/or depose them, thus the failure to disclose was not
harmless.
Because the City patently violated Rules 26(a) and 26(e), the City is not allowed to use
Renno or Wenson’s testimony. 	While the City has not moved for an alternate sanction, even if it
had, the Court would not impose an alternate sanction because exclusion of these witnesses’
testimony is not unfairly harsh or outcome determinative.
For the reasons discussed above, the motion is GRANTED. 	The City cannot rely on
declarations from these individuals in its motion for summary judgment, nor can the City call either
as witnesses at trial or otherwise use their testimony.
IT IS SO ORDERED.
Date: 	September 17, 2026 	/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT
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