Unreported / Non-Citable
Background
William Owens sued the Secretary of the Navy. Hung Cao, the Acting Secretary, is the defendant in his official capacity, automatically substituted for former Secretary John Phelan under Federal Rule of Civil Procedure 25(d). Defendant moved for summary judgment, plaintiff opposed, and defendant replied. Plaintiff also filed two requests for judicial notice, RJN 1 and RJN 2. On September 18, 2026, the court issued an order to show cause directing the parties to explain why it should consider the RJN 2 evidence. Both sides responded, and the court treated the matter as fully briefed.
The responses exposed problems with several exhibits. The court noted that plaintiff did not explain his late submission of Exhibits F through K, and that defendant represented Exhibits F, G, and J are not in the voluminous administrative and discovery record. Defendant says its June 2024 production request sought all records plaintiff intended to use to support his claims, and that the emails at Exhibits F and J appear in neither the administrative record nor plaintiff's production. For Exhibit G, a deposition of Commander Elliott, defendant says plaintiff produced only the cover page and page 85. Defendant does not object to Exhibit H, and the court had already taken judicial notice of Exhibit K subject to limits in the earlier order. The exhibits in dispute are therefore F, G, I, and J. Defendant also argued plaintiff abandoned Exhibits G, I, and J by not addressing them in his brief.
The Court’s Holding
This is a scheduling and issue-framing order, not a ruling on the summary judgment motion. The court set limited oral argument for November 10, 2026, at 2:00 p.m. and confined it to four issues. First, whether plaintiff showed good cause and excusable neglect under Rule 6(b)(1)(B) for filing after the April 16, 2025 opposition deadline, addressing prejudice, length and impact of delay, reason for delay, and good faith under Ahanchian v. Xenon Pictures. Second, if Exhibits F, G, and J were disclosed in discovery, whether exclusion is an appropriate remedy under Yeti by Molly v. Deckers Outdoor, including whether any nondisclosure was substantially justified or harmless, whether plaintiff had Exhibits F and J when he answered the production request, whether defendant forfeited objections not raised earlier, and whether the Navy itself holds copies or a full transcript.
Third, whether prejudice can be cured by ordering additional discovery, such as a full transcript for Exhibit G, and allowing a supplemental defense brief. The parties must also address whether excluding an exhibit would be tantamount to dismissing a claim, which would require considering willfulness, fault, bad faith, and lesser sanctions under R & R Sails, and whether the evidence, if considered, creates a genuine dispute of material fact. Fourth, whether the court should decline to consider Exhibit I. The court did make two rulings. It rejected defendant's abandonment argument, finding that plaintiff appears to rely on the substance of Exhibits G, I, and J despite typographical citation errors. It also denied plaintiff's request for reconsideration of its judicial notice rulings on RJN 1 and RJN 2, because the earlier order did not invite reconsideration.
Key Takeaways
- The court has not yet decided whether to consider the RJN 2 exhibits, and the summary judgment motion remains pending.
- A party who files evidence after the opposition deadline must show good cause and excusable neglect, including a persuasive reason for the delay and good faith.
- Before excluding undisclosed evidence, the court will weigh whether the nondisclosure was substantially justified or harmless and whether supplemental discovery and briefing could cure any prejudice.
- Typographical citation errors in an opposition brief did not amount to abandoning reliance on exhibits whose substance the brief still invokes.
- A request for reconsideration of earlier rulings will be denied when the order inviting briefing did not authorize reconsideration.
Why It Matters
The order shows how a court may handle contested summary judgment evidence: it identifies the specific timeliness, disclosure, and prejudice questions and gives the parties a focused hearing before deciding what is in the record. Its list of questions previews the framework likely to govern, including the possibility that excluding evidence could operate like dismissal of a claim and so require a finding of willfulness, fault, or bad faith.
The ruling is a case-management order and carries no merits holding on Owens's claims. Its practical value is limited to the court's rejection of an abandonment argument based on citation mistakes and its enforcement of the scope of an order to show cause. The outcome of the exhibit dispute and the merits of the summary judgment motion remain open.