IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WILLIAl\1 H. COULT AS; CHRISTINE 

COULT AS; and CHRISTINE 

SCHW ANENBERG, individually and as 

Personal Representative of the Estate of Roark 

Schwanenberg, 

Plaintiffs, 

v. 

LIBERTY MUTUAL FIRE INSURANCE 

COMPANY, 

Defendant. 

PAPAK, Magistrate Judge: 

3: 15-cv-00237-PK 

OPINION & ORDER 

Plaintiffs William H. Coultas, Christine Coultas, and Christine Schwanenberg (filing 

individually and as the personal representative of the Estate of Roark Schwanenberg) filed the 

instant action against Defendant Libetty Mutual Fire Insurance Company ("Libetty"). Plaintiffs 

allege that Libe1ty conve1ted their causes of action against the patties that were responsible for a 

helicopter crash that killed Mr. Schwanenberg and seriously injured Mr. Coultas. Now before 

the court are Liberty's Motion for Summary Judgment (#88), Liberty's Motion to Strike, and 

Plaintiffs' Motion to Amend (#79). For the reasons provided below, Liberty's Motion for 

Summaiy Judgment is granted, Liberty's Motion to Strike is denied, and Plaintiffs' Motion to 

Amend is denied. Plaintiffs' unopposed Motion for Leave to File a Sur-Reply Opposing 

Defendant's Motion for Summary Judgment (#101) is granted. 

OPINION & ORDER-PAGE 1 

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FACTUAL BACKGROUND1 

In 2007, Libe1ty issued a workers' compensation insurance policy to Carson Helicopters, 

Inc., which employed Roark Schwanenberg and William Coultas .. On August 5, 2008, lvfr. 

Schwanenberg and Mr. Coultas were involved in a work-related helicopter crash that killed Mr. 

Schwanenberg and seriously injured Mr. Coultas. Shortly thereafter, Libe1ty began paying death 

and workers' compensation benefits to Christine Schwanenberg (Mr. Schwanenberg's widow) 

and Mr. Coultas, respectively, under the terms of the insurance policy. Libe1ty paid those 

benefits in full and, pursuant to Oregon law, acquired a lien for the amount thereof. See Or. Rev. 

Stat. § 656.580(2). Liberty then retained outside counsel to represent it in anticipated 

subrogation actions against the parties that were potentially responsible for the helicopter 

accident (the "potentially responsible patties"). 

On October 7, 2008, Libe1iy sent Plaintiffs fonn letters notifying them of their option to 

personally sue the potentially responsible patties or, alternatively, to assign their rights to sue to 

Liberty (the "Election Letters"). Liberty had used the same Election Letters many times before 

and mistakenly believed them to be compliant with Oregon law. Mrs. Schwanenberg received 

her Election Letter on October 14, 2008. It is unclear when exactly Mr. Coultas received his 

Election Letter. The Election Letters instructed Plaintiffs to sign and return their election to 

Liberty "within 60 days ofreceipt" of the Letter. The Election Letters did not inform Plaintiffs 

that, pursuant to Oregon law, their causes of action would be assigned to Libe1ty by operation of 

law if they failed to file suit within 90 days of electing to do so. See id. § 656.583(2). Rather, 

the Election Letters merely stated that Plaintiffs' causes of_action were subject to a two-year 

statute of limitations. 

1 Except where expressly indicated otherwise, I construe the evidentiary record according to the 

legal standard governing motions for summary judgment under Federal Civil Procedure Rule 56. 

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Mr. Coultas elected to file suit personally and returned his election to Liberty within 60 

days of receiving the Election Letter. However, he did not file suit within 90 days of making his 

election. Mrs. Schwanenberg also elected to file suit personally, but she failed to return her 

election to Liberty within 60 days of receiving the Election Letter. 

On December 10, 2008, Liberty filed a subrogation action in the United States District 

Court for the Northern District of California on behalf of:tvfr. Schwanenberg and his survivors 

and beneficiaries. Likewise, on January 30, 2009, Liberty filed a subrogation action in the 

United States District Court for the District of Connecticut on behalf of Mr. Coultas. Both 

lawsuits assetied claims arising from the helicopter accident. 

Plaintiffs then retained counsel in an effort to file their own lawsuits regarding the 

accident. Plaintiffs' counsel informed Liberty that its claimed assignments of Plaintiffs' causes of 

action were invalid due to flaws in the Election Letters and asked Libe11y to dismiss its 

subrogation actions. Liberty refused. 

On May 27, 2009, Plaintiffs moved to intervene in the subrogation actions. While those 

motions were pending, the subrogation actions were consolidated with other cases arising from 

the accident2 and transferred to this com1 in a multi-district litigation ("MDL") proceeding. The 

MDL com1 granted Plaintiffs' motions to intervene. 

Then, on February 24, 2010, Plaintiffs separately filed suit in Oregon state cou11 against 

multiple defendants, asse11ing claims arising from the helicopter accident. Libe11y never made 

an appearance in either of those suits. 

On October 5, 2010, Plaintiffs filed a petition with the Oregon Workers' Compensation 

Board (the "Board"), asking it to rule on the validity of Liberty's claimed assignments. On April 

2 In addition to Mr. Coultas and Mr. Schwanenberg, 11 other people were either killed or 

seriously injured in the helicopter accident. 

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8, 2011, the Board ruled that the assignments were void due to misrepresentations contained in 

the Election Letters. 3 Liberty then dismissed its subrogation action on behalf of Mr. Coultas. 

Libetty appealed the Board's ruling regarding the Schwanenberg assignment. The Oregon Court 

of Appeals affirmed the Board's ruling on August 8, 2012. Libetty subsequently dismissed the 

Schwanenberg subrogation action. 

Meanwhile, Plaintiffs continued to prosecute their Oregon state comt lawsuits and 

ultimately settled with all of the defendants. Plaintiffs also settled with three other potentially 

responsible parties that were not involved in either their state court actions or Libe1ty's 

subrogation actions. In total, Plaintiffs recovered approximately $30,000,000 in settlement 

payments. 

PROCEDURAL BACKGROUND 

On December 10, 2014, Plaintiffs filed their initial Complaint (#1-1) in this action in 

Oregon state coutt, assetting claims against Liberty for conversion, wrongful use of civil 

3 The Board determined that both Election Letters contained a misrepresentation by omission 

because they did not inform Plaintiffs that Liberty also insured one of the potentially responsible 

parties. The Board also detennined that the Election Letter sent to Mrs. Schwanenberg contained 

an additional misrepresentation because it infotmed her that she had 60 days from receiving the 

Letter to file suit, but Liberty nevertheless filed a subrogation action on Mrs. Schwanenberg's 

behalf only 56 days after she received the Letter. Additionally, the Board found that the 

Schwanenberg Election Letter contained a material omission because it did not provide, pursuant 

to O.R.S. § 656.583(1), a time period of not less than 90 days in which Mrs. Schwanenberg was 

required to file suit if she elected to pursue her cause of action or state that if she did not comply 

with the time period, her cause of action would be assigned to Liberty. Like the Schwanenberg 

Letter, the Coultas Letter did not explicitly provide a time period in which Mr. Coultas was 

required to file his own cause of action ifhe elected to do so. However, the Board analyzed that 

issue differently in the Coultas matter. Rather than ruling that the omission was an independent 

basis for invalidating the assignment, the Board construed the Letter's statement that Mr. 

Coultas's cause of action was subject to a two-year statute of limitations as a representation that 

Liberty would not consider Mr. Coultas's cause of action assigned to it by operation of law 

before the expiration of that period. Because Mr. Coultas elected to bring his own suit and filed 

that suit within the statute of limitations period, the Board determined that he never assigned his 

cause of action to Libetty. 

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Case 3:15-cv-00237-PK Document 108 Filed 05/09/16 Page 4 of 13
proceedings, and breach of duty of good faith and fair dealing. Mrs. Schwanenberg also alleged 

fraud against Liberty and its employee, Tim Detrick. Plaintiffs filed an Amended Complaint on 

Janumy 12, 2015, eliminating all but the conversion and fraud claims. Liberty removed the 

action to this Court on February 11, 2015. Mrs. Schwanenberg then voluntarily dismissed her 

fraud claim and, consequently, Detrick. Therefore, all that remains is Plaintiffs' conversion 

claim against Liberty. 

SUMMARY JUDGMENT STANDARD 

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); Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). A factual 

dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party." Anderson, 477 U.S. at 248. The substantive law governing a claim or defense 

detennines which facts are material. See 1'.Ioreland v. Las Vegas 1vfetro. Police Dep't, 159 F.3d 

365, 369 (9th Cir. 1998). In adjudicating a motion for summary judgment, the coUlt must draw 

all reasonable inferences in favor of the nonmoving party and may neither make credibility 

detenninations nor weigh evidence. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 

U.S. 133, 150 (2000); Lytle v, Household 1vlfg., Inc., 494 U.S. 545, 554-55 (1990). 

DISCUSSION 

I. Liberty's JVIotion for Summary Judgment 

A. The Parties' Argument 

Liberty argues that Plaintiffs' conversion claim is barred by Oregon's litigation privilege 

because it is based solely upon Libe1ty's conduct and statements in connection with the 

OPINION & ORDER-PAGE 5 

Case 3:15-cv-00237-PK Document 108 Filed 05/09/16 Page 5 of 13
subrogation actions. Alternatively, Liberty argues that even absent the litigation privilege, a 

reasonable trier of fact could not find that it converted Plaintiffs' causes of action. 

In response, Plaintiffs argue that the litigation privilege is inapplicable because they were 

not defendants in the subrogation actions. According to Plaintiffs, accepting Liberty's 

characterization of the privilege would create a slippery slope leading to the immunization of 

conduct that the privilege is not intended to protect. Alternatively, Plaintiffs argue that even if 

the litigation privilege is applicable, this case falls within the privilege's exception for wrongful 

initiation of civil proceedings. Plaintiffs futiher argue that they have presented sufficient 

evidence to permit a reasonable trier of fact to find that Libe1iy converted Plaintiffs' causes of 

action. 

B. Analysis 

Libe1iy's argument regarding the litigation privilege requires me to analyze the conduct 

underlying Plaintiffs' conversion claim separately. See Franson v. Radich, 735 P.2d 632, 635 

(Or. App. 1987) (employing a similar approach in the context of a motion to dismiss). I must 

consider which, if any, of Liberty's statements and actions are protected by the privilege. I must 

then determine whether the remaining unprotected statements and actions, if any, are sufficient 

to create a genuine issue of material fact as to Libe1iy's liability for conversion. 

As I previously explained in ruling on Defendants' Motion to Dismiss, Plaintiffs' 

conversion claim is based solely on (1) Liberty's sending the deficient Election Letters and (2) 

Liberty's subsequent prosecution of the subrogation actions. See Order 7 (#46). That 

understanding of Plaintiffs' conversion claim is supported by the allegations in Plaintiffs' 

Amended Complaint, see Am. Comp!. 'if'if 16-21, 30-34, 40-44, 47, 53-55, 63-65 (#1-1),4 and 

4 Plaintiffs' Amended Complaint begins on page 20 of this document. 

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Plaintiffs' prior argument in opposition to Defendants' Motion to Dismiss, see Plfs.' Resp. to 

Defs.' Mot to Dismiss 7-8, 11 (#21). 

For the reasons provided below, Plaintiffs' conversion claim is ba1Ted by the litigation 

privilege to the extent it is based on Liberty's prosecution of the subrogation actions. As 

Plaintiffs conceded at oral argument, the only remaining alleged statements and actions 

underlying their conversion claim-those relating to the Election Letters-are not sufficient to 

create a genuine issue of material fact as to Liberty's liability for conversion. Consequently, 

Liberty is granted summary judgment. 

1. Liberty's Prosecution of the Subrogation Actions 

Plaintiffs' conversion claim is ba!1"ed by the litigation privilege to the extent it is based on 

Liberty's prosecution of the subrogation actions. Oregon's litigation privilege is an affirmative 

defense that, if successfully established, provides immunity for conduct and statements made in 

connection with judicial and quasi-judicial proceedings. See }vfantia v. Hanson, 79 P.3d 404, 

407-08, 411 (Or. App. 2003); Franson, 735 P.2d at 634. The privilege applies to statements and 

conduct made preliminary to, as well as in the course of, litigation. i'vianlia, 79 P.3d at 408 

(quoting Restatement (Second) ofT01is § 586 (1977)). The privilege is "absolute," and it 

"applies equally to parties to such proceedings and to their attorneys." Id. at 407 (citations 

omitted). Although the litigation privilege originally arose in the defamation context, Oregon's 

appellate courts have extended it to "any t01i action" based on conduct or statements made in 

connection with litigation. Wollam v. Brandt, 162, 961P.2d219, 222 n.5 (Or. App. 1998) 

(citations omitted). The courts have articulated only one exception to the litigation privilege: it 

does not protect conduct that constitutes wrongful initiation of civil proceedings. See i'vlanlia, 79 

P .3d at 413-14. However, a plaintiff need not actually bring a wrongful initiation claim to 

OPINION & ORDER-PAGE 7 

Case 3:15-cv-00237-PK Document 108 Filed 05/09/16 Page 7 of 13
circumvent the privilege. Rather, the plaintiff can proceed on a different tort theory, so long as 

the alleged tortious conduct would satisfy the elements of wrongful initiation. See id. at 414. 

Libe1iy's statements and actions in prosecuting the subrogation actions were clearly 

"connected" to litigation. Immunizing those statements and actions also serves the underlying 

purpose of the litigation privilege-permitting pa1iies, either personally or through their 

attorneys, to vindicate their rights in court without fear of retaliatory lawsuits. See id. at 411 

(citation omitted) (internal quotation marks omitted). Pe1mitting workers' compensation insurers 

to pursue claims on behalf of their insureds' employees safeguards the insurers' rights. When a 

workers' compensation insurer pays benefits to an insureds' employee, it acquires a lien for the 

amount of the benefits against recoveries from third pmiies. See Or. Rev. Stat. § 656.580(2). 

The insurer can satisfy its lien by successfully suing on behalf of the injured employee. 5 See Or. 

Rev. Stat.§ 656.591(2). Any leftover recovery is paid to the insured. Id. Absent the litigation 

privilege, insurers may be hesitant to file suit on behalf of their insureds' employees for fear of 

retaliatory lawsuits challenging the insurer's ability to bring the suit or the manner in which the 

insurer pursued the litigation. The litigation privilege is intended to protect against that 

contingency. See lviantia, 79 P .3d at 408, 411 (citation omitted) (internal quotation marks 

omitted). Consequently, the privilege bars Plaintiffs' conversion claim to the extent it is based on 

Libe1iy's prosecution of the subrogation actions. 

5 Of course, the insured's employee must assign her cause of action to the insurer. See id. § 

656.591(2). As explained above, Liberty's purported assignments in this case turned out to be 

invalid. However, that does not render the litigation privilege inapposite. The paramount 

interest in unhindered vindication of rights that the litigation privilege seeks to protect requires 

courts to tolerate a ce1iain amount of necessary evil. See Dan B. Dobbs, Paul T. Hayden and 

Ellen M. Bublick, The Law of T01is § 539 (2d ed.) ("The immunity may sometimes protect 

scoundrels and liars, but it has always been thought necessary, because if each case is judged on 

its own merits, honest witnesses and other participants in the trial cannot be assured of protection 

from suit."); accord Brown v. Gatti, 99 P .3d 299, 304 (Or. App. 2004), aff'd in part, rev'd in 

part, 145 P.3d 130 (Or. 2006). 

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I reject Plaintiffs' argument that the litigation privilege is inapplicable because they were 

not defendants in the subrogation actions. As stated above, the litigation privilege is intended to 

pe1mit paiiies to vindicate their rights in comi without fear of retaliatory lawsuits. See id 

(citation omitted) (internal quotation marks omitted). Plaintiffs' characterization of the privilege 

unde1mines that purpose. An example proves the point. Consider a construction litigation 

scenario. A developer hires a general contractor who, in turn, hires a subcontractor to construct a 

building. The subcontractor negligently performs its part of the work, thereby damaging the 

building. The subcontractor subsequently becomes insolvent. The developer therefore sues the 

general contractor for the damage. In order to succeed in that suit, the developer would need to 

establish that the subcontractor's work was deficient. However, under Plaintiffs' naiTow 

characterization of the litigation privilege, the subcontractor could sue the developer for 

defamatory statements the developer made in the underlying litigation for the purpose of 

establishing the deficiency of the subcontractor's work. That result would fly in the face of the 

litigation privilege. See id (citation omitted) (internal quotation marks omitted). Consequently, 

Plaintiffs' narrow characterization of the privilege cannot stand. 

Nor am I persuaded by Plaintiffs' slippery slope arguments. According to Plaintiffs, the 

logical extension of applying the litigation privilege to this case would be immunity for a lawyer 

who "mns down a pedestrian in the crosswalk on his way to the court," "absconds with ... 

settlement proceeds," or "steals a diamond ring from its true owner in order to present it as 

evidence in comi." See Plfs.' Resp. 20-21 (#92). Not so. In 1\1antia, the Oregon Court of 

Appeals held that the litigation privilege does not apply "where the nature of the defendant's 

conduct was such that the underlying purposes of the privilege would not be served by 

immunizing that conduct.". 79 P .3d at 414. Immunizing the conduct in the above-quoted 

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scenarios would not further the ability of parties to vindicate their rights in court without fear of 

retaliatory lawsuits. Consequently, Plaintiffs' slippery slope concerns are unfounded. 

Finally, I also reject Plaintiffs' argument that Liberty's pursuit of the subrogation actions 

falls within the litigation privilege's exception for wrongful initiation of civil proceedings.6 

Libe1iy's pursuit of the subrogation actions could constitute wrongful initiation of civil. 

proceedings only if: (1) the subrogation actions were terminated in Plaintiffs' favor, (2) Liberty 

lacked probable cause in prosecuting the subrogation actions, and (3) Liberty's primary purpose 

in prosecuting the subrogation actions was something other than securing an adjudication of its 

claims asse1ied therein. 7 See 1Vfantia, 79 P.3d at 414 (citations omitted). In this case, there is 

simply no evidence that Libe1iy's primary purpose in prosecuting the subrogation actions was 

anything other than securing an adjudication of its claims asse1ied therein. 

It is undisputed that Liberty initiated the subrogation actions to recover the liens it 

acquired by paying benefits to Mrs. Schwanenberg and Mr. Coultas. Indeed, Plaintiffs even 

admitted as much in their motions to intervene in the MDL proceedings. See Marrkand Deel. 

Ex. 17, at 8, Ex. 18, at 10. Plaintiffs nevertheless argue that Liberty's primary purpose in 

prosecuting the subrogation actions was to recover, under 0.R.S. § 656.591(2), the attorney fees 

6 Plaintiffs initially asse1ied claims for wrongful initiation of civil proceedings but voluntarily 

dismissed those claims when they filed their Amended Complaint. See Notice of Removal, Ex. 

A (#1-1). 

7 Because my analysis below renders the issue moot, I express no opinion on whether, in the 

context of the litigation privilege, a plaintiff can establish the elements of wrongful initiation 

when he was not a defendant in the underlying litigation. Compare Alvarez v. Retail Credit 

Ass'n of Portland, Or., Inc., 381P.2d499, 501(Or.1963) (en bane) (holding that, in order to 

succeed on a wrongful initiation claim, the plaintiff must establish that the defendant commenced 

litigation against the plaintiff in the underlying action), and DeHarpport v. W.E.J., 348 P.3d 

1192, 1195 (Or. App. 2015) (same), with J'vfantia, 79 P.3d at 414 (omitting that element but citing 

Alvarez). 

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it accrued in relation to those actions. That argument is a non sequitur. 8 Liberty could have 

simply avoided incurring attorney fees by not filing the subrogation actions. Moreover, Liberty 

could have recovered the attorney fees it incurred in the subrogation actions only if it prevailed 

on its underlying claims therein. See Or. Rev. Stat.§ 656.591(2) (permitting an insurer to deduct 

from its subrogation recovery the amount of its lien and "expenses incurred in making such 

recovery"-i.e. attorney fees-before remitting the rest of the recover to its subrogor). Because 

recovery of fees depended on Libetty succeeding in the subrogation actions, Libetty's interest in 

fees was, at most, secondary to its interest in succeeding on its substantive claims. 

Consequently, a reasonable trier of fact could not find that Liberty's primwy purpose in 

prosecuting the subrogation actions was to recover its attorney fees. See }vfantia, 79 P.3d at 414 

(citations omitted). Plaintiffs' conversion claim is therefore barred by the litigation privilege to 

the extent the claim is based on Liberty's pursuit of the subrogation actions. 

2. The Election Letters 

Next, I assume, arguendo, that the litigation privilege does not shield Liberty from 

liability for the Election Letters. As Plaintiffs conceded at oral argument, even operating under 

that assumption, a reasonable trier of fact still could not find that Liberty converted Plaintiffs' 

causes of action by sending the Election Letters. Cf Franson, 735 P.2d at 635 ("Because the 

allegations remaining after disregarding those protected by the [litigation] privilege do not allege 

8 Additionally, pursuit of attorney fees is not the type of improper purpose that typically gives 

rise to liability for wrongful initiation of civil proceedings. 

The principal situations in which the civil proceedings are initiated for an 

improper purpose are those in which (1) the person initiating them does not 

believe that his claim may be held valid; (2) the proceedings are begun primarily 

because of hostility or ill will; (3) the proceedings are initiated solely for the 

purpose of depriving the person against whom they are initiated of a beneficial 

use of his propetty; (4) the proceedings are initiated for the purpose of forcing a 

settlement which has no relation to the merits of the claim. 

Restatement (First) of Torts§ 676 cmt. on clause b. 

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conduct sufficient to make out the claim, the trial court did not elT in dismissing [the plaintiffs 

tmt claim]."). "To succeed in a conversion claim, the plaintiff must prove 'an intentional 

exercise of dominion or control over a chattel which so seriously interferes with the right of 

another to control it that the actor may justly be required to pay the full value of the chattel."' 

Cron v. Zimmer, 296 P.3d 567, 576-77 (Or. App. 2013) (quoting lvfustola v. Toddy, 456 P.2d 

1004 (Or. 1969)). 

Liberty did not exe1t any dominion or control over Plaintiffs' causes of action by sending 

the Election Letters. The Election Letters merely notified Plaintiffs of their potential claims and 

requested that Plaintiffs elect to pursue those claims themselves or assign them to Libe1ty. 

Libe1ty did not begin exe1ting dominion or control over Plaintiffs' causes of action until it filed 

the subrogation actions-well after it mailed the Election Letters. However, as explained above, 

Liberty's statements and actions in that regard are protected by the litigation privilege. Because 

Libe1ty did not exert dominion or control over Plaintiffs' causes of action by sending the Election 

Letters, the Letters cannot subject Libe1ty to liability for conversion.9 Consequently, Liberty is 

granted summary judgment. 

II. Liberty's Motion to Strike 

Libe1ty moves the comt to strike the testimony of David Hollander, which Plaintiffs 

submitted in opposition to Libe1ty's Motion for Summary Judgment. See Def.'s Reply 4-5 n.6 

(#95). I have reviewed Hollander's testimony and Liberty's objections. Assuming, arguendo, 

9 Although Plaintiffs have not pleaded a claim for trespass to chattels, they neve1theless argue 

that Libe1iy could be held liable for that tmt as a "lesser included offense" of conversion. Plfs.' 

Resp. 30 (#92). Setting the pleading deficiency aside, Plaintiffs purpo1ied trespass to chattel 

claim fails for the same reason as its conversion claim-a reasonable trier of fact could not find 

that the Election Letters interfered with Plaintiffs' possession of their causes of action. See Scott 

v. Jackson Cty., 260 P.3d 744, 752 (Or. App. 2011) (holding that the elements of a claim for 

trespass to chattels are the same as those of a claim for conversion, the only difference being the 

extent of the interference with the plaintiffs possession and the remedy). 

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that the testimony is admissible, it does not change my conclusion that Liberty is entitled to 

summary judgment. Consequently, Libe1iy's Motion to Strike is denied as moot. 

III. Plaintiffs' Motion to Amend 

Plaintiffs do not seek to asse1i any new or additional claims through their Motion to 

Amend. Rather, Plaintiffs seek to amend their damages prayer only. Because I have already 

detennined that Liberty is entitled to summary judgment on Plaintiffs' conversion claim, 

Plaintiffs' Motion to Amend is denied as moot. 

CONCLUSION 

For the reasons provided above, Liberty's Motion for Summary Judgment (#88) is 

granted, Libe1iy's Motion to Strike is denied, and Plaintiffs' Motion to Amend (#79) is denied. 

Plaintiffs' unopposed Motion for Leave to File a Sur-Reply Opposing Defendant's Motion for 

Summary Judgment ( # 101) is granted. All other pending motions are denied as moot. Judgment 

should be entered accordingly. 

Dated this 9th day of May, 2016. 

Isl L (\ I 

Honorable Paul Papak 

United States Magistrate Judge 

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