UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION (DAYTON) 

AMERICAN POWER, LLC 

Plaintiff, 

v. 

DOUGLAS O. HARRIS, et al. 

Defendants.

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Case No. 3:17-cv-00347-WHR 

(Judge Walter H. Rice) 

MARMON AND FONTAINE DEFENDANTS’ MOTION FOR LEAVE OF COURT TO 

FILE RESPONSE TO PLAINTIFF’S SUPPLEMENTAL OPPOSITION (DKT. 63) 

Pursuant to S.D. Ohio L.R. 7.2(a)(2), Marmon Highway Technologies, Inc. 

(“Marmon”) and Kelly Dier (together, the “Marmon Defendants”), and Fontaine 

Engineered Products, Inc. (“Fontaine”), Henry Prochazka, and Berkley Buchanan 

(together, the “Fontaine Defendants”), through counsel, hereby move for leave of Court 

to file their Response to Plaintiff’s Supplemental Memorandum in Opposition to 

Defendants’ Objections to Report and Recommendations of Magistrate Judge and 

Memorandum of Law (Dkt. No. 63). A memorandum in support is attached. 

 Respectfully submitted, 

 s/ Timothy G. Pepper 

Timothy G. Pepper (0071076) 

 Trial Attorney 

TAFT STETTINIUS & HOLLISTER LLP 

40 North Main Street, Suite 1700 

Dayton, Ohio 45423-1029 

P: (937) 641-1740 

F: (937) 228-2816 

pepper@taftlaw.com 

Case: 3:17-cv-00347-MJN-PBS Doc #: 64 Filed: 12/03/19 Page: 1 of 4 PAGEID #: 772
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J. David Duffy, Esq. (adm. phv 02/15/2018)

Lawrence C. Friedman (adm. phv 02/02/2018)

THOMPSON COBURN LLP 

One US Bank Plaza 

St. Louis, Missouri 63101 

P: (314) 552-6000 

F: (314) 552-7000 

dduffy@thompsoncoburn.com 

lfriedman@thompsoncoburn.com 

Counsel for Kelly Dier, Henry Prochazka, Berkley 

Buchanan, Marmon Highway Technologies LLC, 

and Fontaine Engineered Products Inc.

Case: 3:17-cv-00347-MJN-PBS Doc #: 64 Filed: 12/03/19 Page: 2 of 4 PAGEID #: 773
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MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE 

RESPONSE TO PLAINTIFF’S SUPPLEMENTAL OPPOSITION (DOC. NO. 63) 

Plaintiff’s Supplemental Opposition to Defendants’ Objections to Report and 

Recommendation of Magistrate Judge (“Supplemental Opposition,” Doc. No. 63) was 

filed more than one year after the “new” decision on which it is based, Dougherty v. 

Esperion Therapeutics, Inc., 905 F.3d 971 (6th Cir. 2018), was issued, and more than 

one year after briefing closed on Defendants’ objections to the Magistrate’s Report and 

Recommendations. Plaintiff’s tardiness in raising the Dougherty case as supplemental 

authority is reason enough to disregard the Supplemental Opposition. However, it should 

be disregarded as to the Marmon and Fontaine Defendants1 for the additional reason 

that the Dougherty case is wholly inapposite to the Marmon and Fontaine Defendants’ 

dismissal arguments. The Dougherty court did not address the vast majority of the legal 

arguments raised in the Marmon and Fontaine Defendants’ dismissal papers, and on the 

one narrow issue where there is some overlap in the legal argument – whether plaintiffs 

sufficiently pled scienter at the dismissal stage – the facts in Dougherty are easily 

distinguished from those applicable to the Marmon and Fontaine Defendants here. For 

those reasons, the Marmon and Fontaine Defendants respectfully request leave of Court 

to file a short response to Plaintiff’s Supplemental Opposition. 

A proposed order granting leave of Court is attached hereto as Exhibit A and the 

Marmon and Fontaine Defendants’ proposed response to Plaintiff’s Supplemental 

Opposition is attached hereto as Exhibit B. 

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 Marmon Highway Technologies, Inc. (“Marmon”) and Kelly Dier (together, the “Marmon Defendants”), 

and Fontaine Engineered Products, Inc. (“Fontaine”), Henry Prochazka, and Berkley Buchanan (together, 

the “Fontaine Defendants”). 

Case: 3:17-cv-00347-MJN-PBS Doc #: 64 Filed: 12/03/19 Page: 3 of 4 PAGEID #: 774
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 Respectfully submitted, 

 s/ Timothy G. Pepper 

Timothy G. Pepper (0071076) 

 Trial Attorney 

TAFT STETTINIUS & HOLLISTER LLP 

40 North Main Street, Suite 1700 

Dayton, Ohio 45423-1029 

P: (937) 641-1740 

F: (937) 228-2816 

pepper@taftlaw.com 

J. David Duffy, Esq. (adm. phv 02/15/2018)

Lawrence C. Friedman (adm. phv 02/02/2018)

THOMPSON COBURN LLP 

One US Bank Plaza 

St. Louis, Missouri 63101 

P: (314) 552-6000 

F: (314) 552-7000 

dduffy@thompsoncoburn.com 

lfriedman@thompsoncoburn.com 

Counsel for Kelly Dier, Henry Prochazka, Berkley 

Buchanan, Marmon Highway Technologies LLC, 

and Fontaine Engineered Products Inc.

Case: 3:17-cv-00347-MJN-PBS Doc #: 64 Filed: 12/03/19 Page: 4 of 4 PAGEID #: 775