IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BENJAMIN LAWS, JR., et al., 

Plaintiffs,

Case No. 2:12-cv-544

v. JUDGE GREGORY L. FROST

Magistrate Judge Terence P. Kemp

STEVENS TRANSPORT, INC., et al., 

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings:

(1) a motion for partial summary judgment (ECF No. 59) filed by Defendants, a

memorandum in opposition (ECF No. 65) filed by Plaintiffs, and a reply memorandum (ECF No.

68) filed by Defendants; and

(2) a motion for leave to file a surreply (ECF No. 71) filed by Plaintiffs, a memorandum

in support (ECF No. 72) filed by Plaintiffs, a combined memorandum in opposition and

contingent motion for leave to file a response to the surreply (ECF No. 74) filed by Defendants,

and a reply memorandum (ECF No. 75) filed by Plaintiffs.1

For the reasons set forth below, the Court GRANTS Plaintiffs’ motion for leave to file a

1

 The Court notes that the docket fails to indicate correctly select pending motions. 

After Plaintiffs filed their motion for leave to file a surreply (ECF No. 71), they then filed

separately a memorandum in support of that motion. Plaintiffs’ counsel incorrectly classified

that memorandum as a motion during the electronic filing process, and as a result the

memorandum appears as a pending motion on the docket. Additionally, when Defendants filed

their memorandum in opposition to the motion for leave to file a surreply, they included as part

of that filing a motion for leave to file a response to the surreply memorandum. (ECF No. 74.) 

That filing does not appear as a pending motion on the docket. The Clerk shall correct the

docket to indicate that Plaintiffs’ filing is a memorandum and not a motion (ECF No. 72) and

that Defendants’ combined filing is a motion (ECF No. 74). 

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surreply (ECF No. 71), DENIES Defendants’ contingent motion for leave to file a response to

the surreply (ECF No. 74), and DENIES Defendants’ motion for partial summary judgment

(ECF No. 59). 

I. Background

On June 4, 2010, Defendant Charles G. Dunn, III, was driving a tractor trailer in the right

lane of a one-way street in Lima, Ohio. Plaintiff Benjamin Laws, Jr. was driving a car in the left

lane of that same street when Dunn allegedly attempted to make a left turn from the right lane. 

The tractor trailer that Dunn was driving collided with the car that Laws was driving, and Laws

sustained injuries.

Laws subsequently filed a five-count complaint in the Franklin County Common Pleas

Court against Defendant Dunn and against the employers for which Dunn was driving the tractor

trailer, Defendants Stevens Transport, Inc., Stevens Transport CD, Inc., and Stevens Transport T

L, Inc. (collectively, “Stevens Transport”). (ECF No. 3.) Defendants removed that action to this

Court in June 2012 (ECF No. 2), and they have since filed a motion for partial summary

judgment (ECF No. 59). Laws and his wife, Plaintiff Chandra Laws, filed a motion for leave to

file a surreply in connection with that summary judgment briefing. (ECF No. 71.) Finally,

Defendants filed a motion for leave to file a response to the surreply, contingent on whether the

Court permits the surreply. (ECF No. 74.) Briefing has closed on all three motions, which are

ripe for disposition. 

II. Threshold Issues

Because Plaintiffs’ motion for leave to file a surreply can affect the record, this Court is

obligated to address that filing before ruling on Defendants’ motion for partial summary

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judgment. See Brainard v. Am. Skandia Life Assurance Corp., 432 F.3d 655, 667 (6th Cir. 2005)

(“a district court should dispose of motions that affect the record on summary judgment before

ruling on the parties’ summary judgment motions”). In the motion, Plaintiffs argue that they

should be allowed to file a surreply because Defendants raised an argument for obtaining

summary judgment for the first time in the reply memorandum. Specifically, Plaintiffs assert

that Defendants presented a new argument that Plaintiffs should have and failed to present

required expert testimony to support the negligence claims at issue in the summary judgment

motion. Plaintiffs’ surreply argues that no such expert testimony is required, in addition to

providing and affidavit by and the report of Plaintiffs’ expert, Brooks Rugemer.

Defendants dispute that they raised a new argument in their reply memorandum. They

assert that they raised in their initial summary judgment motion and memorandum in support that

Plaintiffs lack any evidence that Stevens Transport knew or should have known that Dunn was

purportedly incompetent so as to anticipate the alleged conduct that led to this litigation. The

reply memorandum’s more specific focus on expert testimony would therefore be simply a

refinement of the broad argument for summary judgment that evidence was lacking. Defendants

thus posit that Plaintiffs’ reliance on their expert is simply a last-minute afterthought intended to

salvage Count III. 

At first blush, Defendants’ reasoning has some superficial appeal. An absence of any

evidence argument no doubt implicitly includes as a subset an absence of expert testimony

component. But the circumstances of this case generally and the briefing specifically necessitate

rejecting such a nuance-free analysis as dispositive.

This Court has previously recognized that “ ‘a district court responding to a request for

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leave to file a sur-reply “routinely grants such motions when a party is unable to contest matters

presented to the court for the first time in the last scheduled pleading.” ’ ” Koch v. County of

Franklin, No. 2:08-cv-1127, 2010 WL 2386352, at *4 (S.D. Ohio June 10, 2010) (quoting

Ben–Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (citation omitted)). This

proposition weighs in favor of accepting for consideration Plaintiffs’ proffered surreply.

Understanding the applicability of the foregoing proposition necessitates review of how

this case has developed. Prior to the summary judgment briefing, the parties joined in asking

this Court to extend the expert disclosure deadlines. The parties made this request despite the

Court having previously admonished them to stop seeking additional modifications to the case

schedule. Reluctantly, the Court agreed to accept the parties’ schedule and extended the expert

deadlines. Plaintiffs’ deadline for making their initial expert disclosures became June 3, 2013. 

This deadline obviously fell after the existing summary judgment deadline of March 25, 2013, a

fact which the Court found curious but nonetheless accepted as a result of crediting the parties

with knowing what they were doing even if the rationale was not readily apparent to this Court.

Of course, the parties soon returned to this Court with yet another request to modify the

case schedule. This time the parties sought to push back the summary judgment deadline once

again, citing that the deadline fell after the expert disclosures and that resolution of a discovery

dispute had delayed Plaintiffs’ ability to respond to an anticipated motion for partial summary

judgment by Defendants. (ECF No. 55.) The parties described the summary judgment deadline

and expert disclosure deadlines issue as inadvertent. 

This was a generous characterization of the scenario in which the parties had placed

themselves in light of the history of the parties’ problems with meeting the case schedule that

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this Court summarized in a March 19, 2013 Order as follows:

On August 29, 2012, the Magistrate Judge originally set a January 31, 2013

dispositive motions deadline. (ECF No. 12.) The next day, this Court repeated that

deadline in an Order that established the remainder of the case schedule. (ECF No.

13.) On November 21, 2012, Defendants filed a motion to modify the trial date. 

(ECF No. 33.) When this Court subsequently held a November 27, 2012 telephone

conference on that motion, the parties took advantage of the opportunity to orally

request modification of what this Court recognized as “every single case schedule

deadline remaining in this litigation.” (ECF No. 35, at PAGEID # 149.) The Court

accepted the schedule that the parties requested and memorialized that schedule in

its November 28, 2012 Order. (ECF No. 35.) That Order expressly noted that the

amended deadlines were “firm deadlines” and cautioned the parties to “coordinate

all discovery so that the . . . deadlines are met without additional requests for

modification of the case schedule.” (ECF No. 35, at PAGEID # 150.) 

The requested changes including moving the dispositive motions deadline to

March 25, 2013. This change made little sense to the Court given that the requested

expert disclosure dates now fell after the summary judgment deadline, but this Court

accepted the parties’ representations and credited the parties with knowing what they

were doing.

On February 19, 2013, the parties again asked the Court to modify the case

schedule. (ECF No. 48.) This request specifically targeted only the expert

deadlines. Despite its admonition in the November 28, 2012 Order that the amended

deadlines were firm deadlines, the Court granted the requested modifications to the

case schedule. (ECF No. 51.)

(ECF No. 56, at Page ID # 365-66.) The Court denied the latest request to modify the case

schedule with the following explanation:

As this summary of the procedural history indicates, the parties were

responsible for the selection of the dispositive motions deadline. After imposition

of this deadline, the parties again came before this Court to modify the case schedule

they had requested, but they failed to seek modification of the dispositive motions

deadline. Their assertion that the failure to seek modification of the March 25, 2013

dispositive motion deadline was inadvertent does not provide good cause for

disturbing a deadline they requested. The parties have long been on notice of this

already amended deadline and it is their own conduct that has made this deadline

potentially problematic for them.

This last point informs the parties’ pointing to the Magistrate Judge in their

motion. Review of the docket indicates that Plaintiffs filed a motion to compel (ECF

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No. 37) on January 10, 2013, which the Magistrate Judge addressed in a February

19, 2013 Opinion and Order (ECF No. 49). On February 15, 2013, Defendants filed

a motion opposing discovery and to strike select discovery requests (ECF No. 46)

and Plaintiffs filed another motion to compel (ECF No. 47). The Magistrate Judge

addressed both motions in his March 8, 2013 Opinion and Order. (ECF No. 54.) 

There is no indication that the Magistrate Judge has been anything other than diligent

in timely and capably addressing the discovery disputes, and there is no reason why

his orders warrant disruption of the existing dispositive motions deadline. The

parties in fact came to this Court for modification of the case schedule while all three

of their discovery motions were pending, yet they failed to ask for modification of

the dispositive motions deadline at that time.

The Court also recognizes that in speculating about Plaintiffs’ alleged

inability to respond to a not yet even filed motion for partial summary judgment as

good cause for altering the case schedule, the parties are attempting to circumvent

the Federal Rules of Civil Procedure. Rule 56(d) already provides a mechanism for

addressing when discovery issues complicate consideration of a motion for summary

judgment. Plaintiffs could invoke the procedures in that rule if they are able to meet

the standard set forth therein. Attempting to evade that standard by mutual

agreement is both unnecessary and unpersuasive.

The parties requested a deadline and repeatedly failed to seek modification

of it while returning to this Court for modification of other deadlines. Now, only

days prior to the dispositive motions deadline, they seek to change that deadline

based on essentially self-inflicted and unconvincing reasons that fail to constitute the

requisite good case under Federal Rule of Civil Procedure 16(b)(4). Such

unwarranted modification would also have a problematic domino effect on the final

pretrial conference and trial dates because this Court has scheduled the time it needs

to coordinate working on any motion in this litigation with other motions in other

cases. Accordingly, the Court DENIES the March 18, 2013 joint motion to amend

the dispositive motions deadline. (ECF No. 55.) 

(Id. at Page ID # 366-68.) With the established case schedule controlling, this Court assumed

that the parties would throw up no additional roadblocks to proceeding to the disposition of this

case.

The Court was naive. On March 25, 2013, Defendants filed their motion for partial

summary judgment. (ECF No. 59.) Plaintiffs thereafter responded with a motion to extend the

time for filing a memorandum in opposition, citing the need to take a deposition to enable them

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to respond to Defendants’ motion; Defendants agreed to the extension request. (ECF No. 61.) 

Plaintiffs also submitted a proper request for additional time under Federal Rule of Civil

Procedure 56(d). (ECF No. 62.) The Court granted the extension in an April 16, 2013 Order. 

(ECF No. 63.)

All of this leads to several main points. 

First, arguing that a party lacks evidence (lay or otherwise) is not necessarily the same

things as arguing that a party must present expert, or opinion, testimony to support one or more

claims. Assuming arguendo that Defendants did raise the issue of expert testimony being

required for the first time in the reply memorandum, Plaintiffs should be entitled to file a

surreply and rely on the affidavit and report of their expert. Because litigation by ambush is

disfavored, fairness favors the surreply.

Second, even assuming arguendo that Defendants’ motion for summary judgment and its

memorandum in support did fairly raise a lack of expert evidence issue by asserting a general

lack of evidence argument, the expert testimony upon which Plaintiffs seek to rely in their

surreply arose after the summary judgment briefing had closed–and it did so based in part on

Defendants’ agreeing to such a schedule. This is an odd scenario, but one in which fairness

again favors permitting the surreply, albeit for a slightly different reason than in the prior

paragraph. 

Defendants’ contention that because Plaintiffs did not assert in their extension request of

the summary judgment briefing that they wanted to rely on expert testimony does not puncture

the fairness of permitting the surreply. The parties had already tried to alter the summary

judgment briefing schedule once to accommodate the expert disclosure schedule, and this Court

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denied that request.

Equally unpersuasive is Defendants’ contention that Plaintiffs’ expert fails to provide

sufficient detail in his affidavit to support his conclusions. This speaks to the weight to be

afforded the opinion testimony and not to whether the filing of the surreply is warranted. 

Moreover, as noted, the incorporated expert report informs the affidavit. 

Third, unlike Plaintiffs’ proffering a surreply with their motion for leave, Defendants

have failed to proffer a responsive memorandum with their contingent motion for leave to file

such a brief if the Court accepts the surreply. What this means is that Defendants would again

delay consideration of their motion for partial summary judgment if the Court were to permit

additional briefing.2 Defendants could and should have avoided such delay by submitting a

memorandum as an attachment to their motion for leave. By failing to do so, Defendants

essentially again seek to modify the case schedule, despite having failed to demonstrate good

cause for doing so. Although Plaintiffs do not oppose the filing of an additional brief, a simple

lack of opposition does not present the good cause that is lacking.

Fourth, the last granted extension the Court discussed above–pushing back consideration

of the summary judgment motion to enable reliance on a deposition–was ultimately pointless. 

The extension enabled Plaintiffs to take and use for summary judgment purposes the deposition

of a Stevens Transport’s corporate representative, William F. Tallent. Plaintiffs have relied on

this deposition extensively in their memorandum in opposition to Defendants’ motion for partial

summary judgment (ECF No. 65), and Defendants also have relied on the deposition in their

2

 Defendants also ask to depose Rugemer. Plaintiffs’ reply memorandum indicates that

this deposition was scheduled for July 9, 2013. It appears that the request is therefore moot.

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reply memorandum (ECF No. 68). But the parties’ reliance is erroneous because the Court

cannot consider the Tallent deposition transcripts upon which the parties rely.

In connection with their memorandum in opposition, Plaintiffs filed two versions of the

Tallent deposition transcript on May 17, 2013, one incomplete version (ECF No. 65-1) and one

complete version (ECF No. 66). Defendants failed to file a copy of the deposition transcript and

instead apparently cite to one of the two versions that Plaintiffs filed. The problem is that the

first version that Plaintiffs filed lacks a court reporter certification page altogether while the

second version they filed contains an unsigned court reporter certification page. 

A signed court reporter certification is an “essential portion[] of [the] transcript[].” S. D.

Ohio Civ. R. 7.2(e). A deposition transcript that lacks such a signed court reporter certification

fails to qualify as proper summary judgment evidence under Federal Rule of Civil Procedure 56. 

See Fed. R. Civ. P. 30(f)(1); Soliday v. Miami County, Ohio, No. C-3-91-153, 1993 WL

1377511, at *5 n.4 (S.D. Ohio Nov. 22, 1993) (stating that “the Court cannot consider”

deposition testimony referenced in summary judgment reply memorandum but not filed with

court); Moore v. Florida Bank of Commerce, 654 F. Supp. 38, 41 n.2 (S.D. Ohio 1986)

(unauthenticated deposition is not proper material under Rule 56); Podlesnick v. Airborne

Express, Inc., 550 F. Supp. 906, 910 (S.D. Ohio 1982) (depositions not filed with court but

referred to in summary judgment memoranda were not considered in court’s decision). See also

Orr v. Bank of America, NT & SA, 285 F.3d 764, 774 (9th Cir. 2002) (discussing unauthenticated

deposition extracts). The Court therefore cannot consider either version of the Tallent deposition

transcript in its summary judgment analysis. (ECF Nos. 65-1, 66.) 

For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for leave to file a

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surreply (ECF No. 71) and DENIES Defendants’ contingent motion for leave to file a response

to the surreply (ECF No. 74). The Clerk shall detach the proffered surreply and its exhibits,

which Plaintiffs filed as attachments to the memorandum in support of the motion for leave, and

place them on the docket. (ECF No. 72-1.)

III. Discussion

A. Standard Involved

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion

for summary judgment if the nonmoving party who has the burden of proof at trial fails to make

a showing sufficient to establish the existence of an element that is essential to that party’s case. 

See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

In viewing the evidence, the Court must draw all reasonable inferences in favor of the

nonmoving party, which must set forth specific facts showing that there is a genuine issue of

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

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that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,

477 U.S. at 251-52).

B. Analysis 

1. Count III

Plaintiffs assert in Count III of the complaint state law claims for negligent hiring,

retention, and supervision, as well as claims for negligent training and negligent entrustment. 

The Sixth Circuit has explained that 

Ohio law requires that a plaintiff prove the following five elements to impose

liability upon an employer for a claim of negligent hiring, supervision and retention:

(1) the existence of an employment relationship; (2) the employee’s incompetence;

(3) the employer’s knowledge of the employee’s incompetence; (4) the employee’s

act or omission causing the plaintiff’s injuries; and (5) a causal link between the

employer’s negligence in hiring, supervising, and retaining the plaintiff’s injuries.

Estate of Barney v. PNC Bank, Nat’l Ass’n, 714 F.3d 920, 929 (6th Cir. 2013) (citing Lehrner v.

Safeco Ins./American States Ins. Co., 171 Ohio App.3d 570, 583, 872 N.E.2d 295, 305 (2007). 

As the parties correctly note in their briefing, some Ohio courts have found that these same

elements apply to a negligent training claim. See Johnson v. Swift Transp. Co. of Arizona, No.

3:10-CV-352, 2013 WL 796147, at *7 (S.D. Ohio Mar. 4, 2013) (citing Ford v. Brooks, No.

11AP-664, 2012 WL 760741, at *6 (Ohio App. Mar. 8, 2012), for the proposition that “the

elements required to prove a claim of negligent hiring and supervision also apply to a claim of

negligent training”). Finally, another judicial officer in this Circuit has explained that

[t]he Ohio Supreme Court has defined the elements of a negligent

entrustment claim:

The owner of a motor vehicle may be held liable for an injury

to a third person upon the ground of negligence if the owner

knowingly, either through actual knowledge or through knowledge

implied from known facts and circumstances, entrusts its operation

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to an inexperienced or incompetent driver whose negligent operation

results in the injury.

Gulla v. Straus, 154 Ohio St. 193, 193, 93 N.E.2d 662 (1950). Negligent

entrustment liability in Ohio “is generally confined to cases where [the owner]

entrusts his motor vehicle to one whose appearance or conduct is such as to indicate

his incompetency or inability to operate the vehicle with due care.” Grieser v.

Montgomery, No. 3:11CV587, 2012 WL 1906379, at *5 (N.D. Ohio, May 25, 2012),

unpublished, quoting Gulla, 154 Ohio St. at 199, 93 N.E.2d 662. Where an

entrustee’s incompetence is not apparent to the entruster, “it must be affirmatively

shown that the entruster had at that time knowledge of such facts and circumstances

relating to the incompetency of the entrustee to operate the motor vehicle as would

charge the entruster with knowledge of such incompetency.” Id.

Hurst v. Estate of Ziriada, No. 5:11CV00667, 2013 WL 2153281, at *8 (N.D. Ohio May 15,

2013). See also Arnieri v. Cornhoff, No. 1:11 CV 1897, 2012 WL 5334734, at *5 (N.D. Ohio

Oct. 26, 2012).

Stated simply, the common threads among all of these claims for purposes of the instant

analysis is essentially whether Dunn was incompetent and whether Stevens Transport knew or

should have known this fact and nonetheless enabled Dunn so as to be held responsible.

Regardless of whether Ohio law requires expert testimony to answer these questions, an

issue the parties dispute, and regardless of whether a negligent training claim falls only under the

elements of traditional negligence, Plaintiffs have presented expert testimony in the form of the

Brooks Rugemer affidavit and the expert report that the affidavit incorporates that informs the

claims. (ECF No. 72-1.) Together this evidence indicates that Dunn failed to act as a reasonable

and prudent truck driver on June 4, 2010, that he was responsible for the accident on that date,

and that this conduct was reasonably foreseeable to Stevens Transport based on its knowledge of

Dunn’s prior driving and multiple accidents. Rugemer also indicates that Stevens Transport

failed to act in a reasonable and prudent manner by allowing Dunn to drive as their agent, that

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the training and remedial retraining that Stevens Transport provided Dunn was deficient, and that

it was reasonably foreseeable to Stevens Transport that Dunn’s dangerous driving habits would

lead to serious injury or death.

For summary judgment purposes, it does not matter whether Rugemer is correct or

incorrect in his opinions. Neither does it matter what weight this Court would assign his

opinions nor even that Defendants have pointed to evidence (mainly through Dunn’s often

unspecific testimony) intended to establish the adequacy and effectiveness of Dunn’s training

and Stevens Transport’s confidence in him. What matters here is whether the evidence,

construed in a light in which all reasonable inferences are drawn in favor of Plaintiffs, means

that Plaintiffs have set forth specific facts showing that there is a genuine issue of material fact

for trial. Plaintiffs have, which means that the evidence presents a sufficient disagreement to

require submission to a jury. Accordingly, Defendants are not entitled to summary judgment on

Count III. 

2. Punitive Damages

Defendants also seek summary judgment on Plaintiffs’ request for punitive damages,

which covers several of Plaintiffs’ claims. The Sixth Circuit had explained that 

[u]nder Ohio law, in order to recover punitive damages for a negligence claim . . .,

the plaintiff must establish, by clear and convincing evidence, that “the actions or

omissions of [the] defendant demonstrate malice or aggravated or egregious fraud.” 

Ohio Rev.Code Ann. §§ 2315.21(C)(1), 2315.21(D)(4), 3721.17(I)(2)(b). Malice is

divided into two categories: “(1) that state of mind under which a person’s conduct

is characterized by hatred, ill will, or a spirit of revenge, or (2) a conscious disregard

for the rights and safety of other persons that has a great probability of causing

substantial harm.” Preston v. Murty, 32 Ohio St.3d 334, 336, 512 N.E.2d 1174

(1987). . . .

The “conscious disregard” type of malice “requires the party to possess

knowledge of the harm that might be caused by his behavior.” Malone v. Courtyard

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by Marriott L.P., 74 Ohio St.3d 440, 446, 659 N.E.2d 1242 (1996). Because “it is

rarely possible to prove actual malice otherwise than by conduct and surrounding

circumstances,” “actual malice can be inferred from conduct and surrounding

circumstances which may be characterized as reckless, wanton, willful or gross.” 

Villella v. Waikem Motors, Inc., 45 Ohio St.3d 36, 37, 543 N.E.2d 464 (1989)

(quotations omitted).

Freudeman v. Landing of Canton, 702 F.3d 318, 330 (6th Cir. 2012). The crux of Defendants’

argument is that, in light of the foregoing standard, Plaintiffs cannot show the requisite

aggravating circumstances that would entitle Plaintiffs to an award of punitive damages.

Plaintiffs dispute this contention. They argue that reasonable minds could differ on

whether Defendants were aware that their actions had a great probability of causing substantial

harm and whether Defendants consciously disregarded the rights and safety of the injured party.

The issues of fact recognized above directly inform the issue of punitive damages. 

Consequently, the Court concludes that Defendants are not entitled to judgment on punitive

damages at this time. 

IV. Conclusion

The Court GRANTS Plaintiffs’ motion for leave to file a surreply (ECF No. 71),

DIRECTS the Clerk to file the proffered surreply and its exhibits on the docket (ECF No. 72-1),

DENIES Defendants’ contingent motion for leave to file a response to the surreply (ECF No.

74), and DENIES Defendants’ motion for partial summary judgment (ECF No. 59). 

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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