Aaryan & Pratha, Inc. v. Costco Wholesale Corporation et al
MEMORANDUM OPINION AND ORDER: the Court finds that Costco's 41 Motion to Strike is GRANTED in part and DENIED in part as set forth herein above and its Motion for Summary Judgment (Doc. 22 -5) is DENIED. Signed by Honorable Judge Callie V.S. Granade on 5/10/2018. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
AARYAN & PRATHA, INC.,
Civil Action No. 2:16-274-CG
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Summary
Judgment (Doc. 22-5)1, Plaintiff’s Response in opposition thereto (Doc. 35), and
Defendants’ Reply (Doc. 40) and on Defendants’ Motion to Strike the Affidavits of
Wayne Russell, Leslie Watson, and James McGuire (Doc. 41) to which Plaintiff has
responded (Doc. 44) and Defendants have replied (Doc. 45). For the reasons
explained below, the Court finds that Defendants’ Motion to Strike (Doc. 41) is
GRANTED in part and DENIED in part and their Motion for Summary Judgment
(Doc. 22-5) is DENIED.
Plaintiff, Aaryn & Pratha, Inc. (“A&P”), an Alabama corporation, owns and
Defendants initially filed their motion in redacted form (Doc. 22), but this Court
will refer to the un-redacted version (Doc. 22-5) only.
operates a Shell branded convenience store and retail gas station located at 9264
Boyd Cooper Parkway in Montgomery, Alabama. (Doc. 1; Doc. 35 at 4).
Defendants, Costco Wholesale Corporation and Costco Membership, Inc.
(collectively “Costco”), are Washington and California corporations, respectively,
both engaging in business in Alabama. (Doc. 35 at 4). Costco operates a retail store
located at 8251 EastChase Parkway, in Montgomery, Alabama that sells gasoline to
its members. (Doc. 22-5 at 8). The gas stations that are operated by the parties are
located 0.7 miles apart. (Doc. 22-5 at 8; Doc. 35 at 4).
On April 18, 2016, Plaintiff filed a Complaint seeking Preliminary and
Permanent Injunctive Relief and damages against Defendants alleging Defendants
violated the Alabama Motor Fuel Marketing Act (“AMFMA”) 1977 Ala. Code § 8-221. (Doc. 1). Specifically, Plaintiff contends that Costco sold regular unleaded
gasoline below cost on sixteen separate days from March 2016 to April 2016, in
violation of the AMFMA with the intent to injure Plaintiff and other competitors in
the same market area. (Doc. 1 at 3-5). Plaintiff alleges that as a result of
Defendants’ violation, it has suffered irreparable harm and damages, including a
decrease in gasoline sales. (Doc. 1 at 3, 5).
After filing their Answer (Doc. 32)2, Defendants filed a Motion for Summary
Judgment asserting that they are entitled to judgment as a matter of law because
they were meeting competition in good faith pursuant to Ala. Code § 8-22-8(b).
Document 32 is Defendants’ Amended Answer. The initial Answer was filed on
June 17, 2016. (Doc. 16).
Plaintiff has responded asserting that Defendants neither acted in good faith nor
properly established that the retailers that it matched were competitors under the
AMFMA (Doc. 35) and Defendants timely replied (Doc. 40). In support of its
response, Plaintiff submitted multiple exhibits including the affidavits of Leslie
Watson (“Watson”) (Doc. 35-4), Wayne Russell (“Russell”) (Doc. 35-5), and James
McGuire (McGuire”)(Doc. 35-13). Thereafter, Defendants filed a Motion to Strike
the Affidavits of Russell, Watson, and McGuire (Doc. 41) to which Plaintiff has
responded (Doc. 44) and Defendants have replied (Doc. 45). The motions are now
ripe before this Court.
The Montgomery Costco’s gasoline prices are set at least once per day and
typically twice per day by Costco’s motor fuel department located in King County,
Washington. (Doc. 22-5 at 12; Doc. 22-8 at ¶¶¶ 3, 4, 11). Each morning the motor
fuel department reviews information from www.app.opispricepro.com ("PricePro") –
a retail gasoline comparative pricing tool – that compares the Montgomery Costco’s
gasoline prices to pre-selected area competitors. (Doc. 22-5 at 12; Doc. 22-8 at ¶ 5).
After reviewing the competitors’ prices, the fuel department sets Costco’s price,
frequently resulting in matching the price of a competitor. (Doc. 22-5 at 13; Doc. 228 at ¶ 10). Costco’s motor fuel department typically repeats this process in the late
afternoon during weekdays using PricePro data collected throughout the day. (Doc.
22-5 at 13; Doc. 22-8 at ¶ 11). Once the fuel department sets the price of gasoline,
Costco employees change the relevant advertisements to reflect the updated gas
price. (Doc. 22-5 at 13; Doc. 22-8 at ¶ 12).
According to Costco, there are sixteen competitors that it daily reviews using
PricePro, all of which sell the same product – regular unleaded gasoline – and all of
which are located within a 7.5 mile radius of the Montgomery Costco. (Doc. 22-5 at
10, 16; Doc. 22-8 at ¶¶ 7, 8).
Certain of these competitors are pre-selected by
Costco’s motor fuel department “based on the competitor’s location, pricing history,
distance from [Costco’s] retail stores, and market data on the home or business
location of [Costco’s] members/customers.” (Doc. 22-5 at 9; Doc. 22-8 at ¶ 6). Costco
tracks the location of its members who actually buy gasoline at the Montgomery
location and tracks the gasoline retailers located near the homes and/or businesses
of Costco gasoline buying customers. (Doc. 40 at 5; Doc. 22-7 at 3-6). On the sixteen
days at issue in the Complaint, Costco asserts it was meeting the price of either the
Quick Serve on Wares Ferry Road, Sam’s Club on Eastern Boulevard, Liberty on
Atlanta Highway, Mapco on Vaughn Road, or Valero on Vaughn Road. (Doc. 22-5 at
20-21; Doc. 22-8 at 14-18).
In its response, A&P does not dispute the above stated facts. Rather, it
argues that the gas retailers selected and identified by Costco are not competitors
under the AMFMA and that Costco did not act in good faith when it met the price of
those alleged competitors. (Doc. 35, generally). A&P has presented facts that the
five retailers that Costco used as competitors are located more than five miles from
Costco, on different roads, on different traffic routes, and are either not equipped to
sell or do not typically sell a significant amount of gas so as to be true competitors of
Costco. (Id). A&P also submitted affidavits of retail gasoline marketers stating
that local gasoline retailers do not consider several of Costco’s alleged competitors to
be realistic competitors and stating that Costco does not consider several gas
retailers as competitors that are closer in proximity to it and are on same road or
traffic thoroughfare as its tracked competitors. (Id). Costco does not dispute the
facts presented by A&P.
Motion to Strike
Given that a determination on Defendants’ Motion to Strike will potentially
impact the analysis of Defendants’ Motion for Summary Judgment, this Court will
address Defendants’ Motion to Strike first.
Because the challenged affidavits were submitted in opposition to a motion
for summary judgment, they must comply with the requirements of Rule 56(e) of
the Federal Rules of Civil Procedure. Rule 56(e) provides that an affidavit opposing
a motion for summary judgment “shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P.
56(e)(emphasis added). Affidavits which set forth conclusory arguments rather
than statements of fact based on personal knowledge are improper. See, e.g.,
Thomas v. Ala. Council on Human Relations, Inc., 248 F.Supp.2d 1105, 1112 (M.D.
Ala. 2003); Story v. Sunshine Foliage World, Inc., 120 F.Supp.2d 1027, 1030 (M.D.
Fla. 2000). Accord, Leigh v. Warner Bros., Inc., 212 F .3d 1210, 1217 (11th Cir.
Sworn statements which fail to meet the standards set forth in Rule 56(e)
may be subject to a motion to strike. See, e.g., Thomas, 248 F.Supp.2d at 1112;
Givhan v. Electronic Eng'rs, Inc., 4 F.Supp.2d 1331, 1334 (M.D. Ala. 1998). The
motion to strike should state precisely the portions of the affidavit to which
objection is being made, and the grounds therefor. Givhan, 4 F.Supp.2d at 1334
citing to Olympic Ins. Co. v. H.D. Harrison. Inc., 418 F.2d 669, 670 (5th Cir. 1969).
However, the Court need not strike the entire affidavit, rather it may strike or
disregard the improper portions and consider the remainder of the testimony or
statement. Givhan, 4 F.Supp.2d at p. 1334 n. 2. In the context of a non-movant's
burden on summary judgment, the Eleventh Circuit “has consistently held that
conclusory allegations without specific supporting facts have no probative value”
and cannot defeat a well-supported motion for summary judgment. Evers v. General
Motors, 770 F.2d 984, 986 (11th Cir. 1985)(citations omitted).
Furthermore, Federal Rule of Evidence 702 permits a person qualified as an
expert to testify in the form of an opinion if, among other reasons: “(a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.” Fed. R. Evid. 702. “A district court is thus required to act as a
gatekeeper ‘to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the practice of
an expert in the relevant field.’” McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir.
2004) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
Defendants’ seek to strike the expert testimony of Wayne Russell, Leslie
Watson, and James McGuire because their testimony “is conclusory and unreliable,
and, therefore, does not meet requirements Federal Rule of Evidence 702 for at
least four reasons: (1) the Purported Experts expressly disclaim that they are
experts; (2) the Purported Experts admit that their opinions are not based upon
sufficient facts or data or are otherwise arbitrary; (3) the Purported Experts’
testimony goes to a party’s state of mind, which is not the proper subject of expert
testimony; and (4) the Purported Experts’ testimony reaches legal conclusions that
are reserved to the determination of this Court.” (Doc. 41 at 3)(emphasis removed).
In response, Plaintiff states “it is [the] breadth of experience that forms the
foundation and the basis of these gentlemen to offer the testimony now attacked by
Costco regarding the gasoline markets at issue; who a competitor is and who a
competitor is not with respect to a given facility by analyzing the nature of the
facility including volumes of fuel sold; distances from competitors including Costco;
whether a location is on the same traffic pattern as a competitor at another location
including Costco, etc.” (Doc. 44 at 3).
Wayne Russell (“Russell”) is the President of Russell Petroleum Corporation
(“Russell Corp.”), an Alabama Corporation located in Montgomery, Alabama, in the
wholesale and retail gasoline business. (Doc. 35-5 at 1). Mr. Russell has been in
the gasoline business in Central Alabama, including in the City of Montgomery for
forty-nine years during which time he has marketed gasoline to every market
within the city. Russell Corp. supplies fuel to forty-two locations in the City of
Montgomery and surrounding communities known as “Kwik Shop” and “PetroPlus”.
(Id.) Mr. Russell has surveyed competitive pricing and priced gasoline over the
course of his forty-nine years to the Russell Corp. locations. (Id.)
Leslie Watson (“Watson”) is President of Tom Jones, Inc., an Alabama
Corporation that, among other things, markets gasoline at retail in Alabama,
including in the City of Montgomery. (Doc. 35-4 at 1). Mr. Watson has worked in
the gasoline business for fifty-two years and during that time he has marketed
gasoline in every market within the City of Montgomery. (Id.) He has additionally
surveyed competitive pricing throughout the City of Montgomery and beyond for 32
years and his employer supplies fuel to thirteen locations within the City of
Montgomery and Montgomery and Autauga Counties in facilitates branded as
James McGuire (“McGuire”) is the President of McGuire Oil Company based
in Mobile, Alabama, which is principally a Chevron-branded distributor of motor
fuel products. (Doc. 35-13 at 2). McGuire Oil has been in the gasoline business for
over forty-eight years and supplies approximately sixty locations throughout
Southwest Alabama, the Panhandle of Florida, and Southeast Mississippi. (Id).
James McGuire has personally been in the gasoline business for approximately
Disclaimer of Being Experts
Costco first asserts that all three affidavits should be stricken because each of
the affiants disclaim being experts. (Doc. 41 at 3-5). Specifically, Costco points to
the following testimony in support of exclusion:
Q: Mr. Russell, you have given an affidavit in the case we’re here
about today. I believe that you’ve been offered up as an expert in the
case that we’re here about today. Is that what you understand as well?
A: I’m not an expert, but I’ve been in the business a long time.
Q: . . . Have you ever been retained as an expert in any litigation?
A: No expert. I’m not an expert.”
(Doc 41 at 4)(internal citations omitted). Costco further points out that Mr. Russell
(1) has never been qualified as an expert in motor fuel in any place for any purpose,
(2) has no specialized training or education about motor fuel pricing, and, (3) did not
personally set prices for any of his owned retail locations, and has not for over a
decade. (Doc. 41 at 4)(internal citations omitted). Similarly, when asked by Costco
whether he was an expert, Mr. Watson stated that he (1) did not regularly hold
himself out as an expert, (2) had never previously offered expert testimony or been
qualified by a court to do so, (3) had never prepared any documents on the gasoline
retail market in Montgomery outside of pricing surveys, and (4) had never
conducted any research on consumer sensitivity to gasoline prices. (Id.)(citations
omitted). Finally, when asked whether he was giving expert testimony, Mr.
McGuire, stated “[w]ell, I’m not saying to anybody I’m an expert to testify today”
and, thereafter, stated “I think I can answer your question. I think a legal term, no
judge has ever declared me an expert. I’ve never known myself out --put myself out
as an expert. I’ve been in this business for a long time, so I have a lot of experience
in the gasoline wholesale and retail business, but I don’t consider myself an expert .
. . in anything. . . I don’t claim to be an expert.” (Doc. 41 at 5) (internal citations
omitted). Mr. McGuire also stated that he had never given prior testimony as an
expert or been designated as an expert and he had never offered a prior expert
report. (Doc. 41 at 5) (internal citations omitted).
With regard to Defendants’ first ground for excluding the affidavits, this
Court finds Defendants’ position to be without merit. While Rule 702 requires
specialized knowledge and skill before one can be considered an expert, the Court is
unaware of any requirement that the purported expert hold themselves out to be an
expert and Defendant has provided this Court with no case law to support such a
position. Whether or not someone considers themselves to be an “expert” has no
bearing on whether or not their opinions can be considered as expert testimony
based on their education, knowledge, and experience under Federal Rule of
2. Insufficient Facts or Data
Costco next asserts that all three affidavits should be excluded because the
affiants’ testimony is not based on sufficient facts or data. (Doc. 41 at 5-8).
Specifically, Costco argues that McGuire’s affidavit suggests he has specialized
knowledge of the legislative history of the AMFMA, but when asked about his
involvement with the passage of the AMFMA, Mr. McGuire testified that he didn’t
know where the language for the AMFMA came from, that he didn’t know “the
procedure of how [the AMFMA] got passed”, that he didn’t know who the Senate
sponsor for the bill was, he didn’t know what committees were involved in the
passage of the AMFMA, and most importantly that he did not have any input at all
on the definition of the terms “competitor” or “market area” under the AMFMA.
(Doc. 41 at 6)(internal citations omitted). Costco contends, therefore, that “Mr.
McGuire’s testimony regarding the AMFMA –in addition to reaching impermissible
legal conclusions, as discussed below –is unreliable and irrelevant.” (Id.)
Costco also takes issue with Mr. Watson’s testimony because he (1) was not
involved with the passage of the AMFMA, (2) did not know where his customers
lived, (3) did not know how far individuals were willing to drive in order to take
advantage of better pricing, (4) did not have any direct experience with PricePro or
GasBuddy, (5) did not know where Costco bought its gasoline from or at what price,
and (6) provided testimony noting his opinion that Costco should not consider
retailers with sales volume of less than 50,000 gallons per month was “an arbitrary
line.” (Doc. 41 at 6-7)(internal citation omitted). Accordingly, Costco contends,
“[h]is testimony in this case is not based on sufficient facts or data, but is
admittedly conclusory and ‘arbitrary’” and “is due to be excluded.” (Id. at 7).
Lastly, Costco points out that Mr. Russell was (1) not involved with drafting
the language of the AMFMA, (2) did not know where his customers lived, (3) did not
know how far individuals were willing to drive in order to take advantage of better
pricing, (4) did not know where Costco’s customers lived or worked, and (5) did not
know how Costco selected its prices. (Id. at 7-8). (internal citation omitted). As a
result, Costco contends Mr. Russell’s testimony in is “conclusory and based on
insufficient facts and data” and “is due to be excluded.” (Id.)
While there is no dispute that the above classification of the testimony of
Russell, Watson, and McGuire is accurate, Costco fails to make any argument that
the absence of the above knowledge justifies exclusion of the respective affidavits in
their entirety. More specifically, Costco does not assert how the above testimony
establishes that all of the information and every opinion within the affidavits
should be excluded or that none of the affiants could potentially be experts for the
sake of offering any opinion based on their experiences as market retailers in
Montgomery. As such, Costco’s argument seeking total exclusion of the relevant
affidavits based on a lack of sufficient facts and data is denied. To the extent that
Costco seeks to exclude portions of the relevant testimony based on lack of the
above-discussed information, Costco does not indicate which specific opinions it
seeks to exclude beyond its request to exclude “testimony regarding AMFMA”. (Doc.
41 at 6). Such a generalization fails to identify the specific portions of each affidavit
that Costco seeks to exclude. See Givhan, 4 F.Supp.2d at 1334 (“The motion to
strike should state precisely the portions of the affidavit to which objection is being
made, and the grounds therefor.”) citing to Olympic Ins. Co. v. H.D. Harrison. Inc.,
418 F.2d 669, 670 (5th Cir. 1969). As a result, while some of the opinions of the
Russell, Watson, and McGuire may be subject to exclusion for the grounds stated by
Costco, Costco has not sufficiently identified those portions to which the above
grounds apply such that the same could be stricken.3
3. Mindset and Intent
Costco next argues that the testimony of Russell, Watson, and McGuire
should be stricken because the affiants’ testimony goes to Costco’s mindset and
intent, an improper subject of expert testimony. (Doc. 41 at 8-9). Specifically, Costco
seeks to exclude Russell’s, Watson’s, and McGuire’s testimony that Costco was
manufacturing “a meeting competition defense for the purpose of trying to beat the
law. . .”. (Id.) (internal citations omitted).
In support of its position, Costco asserts that, “[s]uch inferences about the
intent or motive of parties or others lie outside the bounds of expert testimony.”
Tindall v. H & S Homes, LLC, 2012 WL 3241885, *12 (M.D. Ga. 2012)(internal
quotations and citations omitted). Plaintiff’s Response (Doc. 44) does not address
the admissibility of these specific statements. Nevertheless, this Court agrees that
the subject opinions of Russell, Watson, and McGuire that relate to Costco’s alleged
intent are not admissible and should be stricken. Specifically, any opinion of
Russell, Watson, or McGuire that Costco was trying “manufacture a defense” or
“beat the law” are stricken.4
As the Court understands Costco’s position, the portions of the affidavits that
should be stricken due to insufficient facts or data are the same as those portions
which are due to be stricken because they contain legal conclusions. As a result, for
the reasons set forth herein below, it is of no consequence that the opinions
regarding the AMFMA are not being struck for lack of sufficient facts or data.
4 Any opinions relating to Costco’s intent are also due to be stricken as legal
conclusions because Costco’s intent is demostartive of whether it acted in “good
4. Legal Conclusions
Lastly, Costco asserts that the subject affidavits should be stricken because
they contain conclusions of law. Namely, the affiants all testify in some form that,
in their opinion, the gas retailers that Costco monitors as competitors are not true
competitors under the AMFMA. (Docs. 35-4, 35-5, 35-13, generally). Costco
contends that whether or not the retailers Costco price matched are competitors
under the AMFMA, is the ultimate issue for the Court to decide and Costco takes
issue with the affiants’ opinions relating to the legal meanings of certain words in
the AMFMA. (Doc. 41). In response, Plaintiff argues only that the affidavit of
Costco’s expert, Dr. Robicheaux stated an exact, albeit opposite opinion, i.e. “that all
gasoline retailers that Costco is currently tracking […] are in competition with
Costco” (Doc. 44 at 4; Doc. 22-6 at 10). Accordingly, A&P argues that because Dr.
Robicheaux’s opinions are admissible, then the opinions of Russell, Watson, and
McGuire are also admissible. (Doc. 44 at 4). Such an argument is unavailing.
First, there is no motion before this Court pertaining to the admissibility of
Dr. Robicheaux’s opinion and, to the contrary, A&P agrees that Dr. Robicheaux’s
opinions can be validly considered. Second, a plain reading of Dr. Robicheaux’s
affidavit indicates that his opinions are based on his expertise in marketing and
nowhere in his affidavit does Dr. Robicheaux provide an opinion as to the legal
meaning of the AMFMA or the terms “competitors” or “market area” as Plaintiff
faith”, an element of their defense and an issue that is before this Court for the
reasons stated in paragraph 4, below.
contends. Lastly, whether or not Dr. Robicheaux is qualified to provide an expert
opinion under the Federal Rules has no bearing on whether Russell, Watson, or
McGuire are individually qualified to provide expert testimony.
The Eleventh Circuit has held that “testifying experts may not offer legal
conclusions.” Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402
F.3d 1092, 1112 n. 8 (11th Cir. 2005). Accordingly, Costco’s request to strike the
testimony of Russell, Watson, and McGuire which are legal conclusions is granted.5
Specifically, any opinions of Russell, Watson, or McGuire as to the meaning of the
terms “competitors” or “market area” under the AMFMA or any opinion that Costco
was not acting in accordance with the AMFMA are legal conclusions and hereby
stricken. However, while the legal conclusions contained in the affidavits are not
admissible, it is not necessary to strike the affidavits in their entirety. See Givhan,
4 F.Supp.2d at 1334 n.2.
B. Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall
be granted: “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.” The trial court’s
function is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
The above ruling does not entirely alter the discussion on the pending Motion for
Summary Judgment as there remain portions of the subject opinions that are
Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary judgment; there must be
‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting
Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, at 249-250.
(internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving
that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d
1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the
court must view all evidence in the light most favorable to the non-moving party,
and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on
the inferences arising from undisputed facts, then a court should deny summary
judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th
Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838,
841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rely merely on allegations or
denials in its own pleading; rather, its response .... must be by affidavits or as
otherwise provided in this rule be set out specific facts showing a genuine issue for
trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere
‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“[T]he nonmoving party may avail itself of all facts and justifiable inferences in the
record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th
Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal
quotation and citation omitted).
1. The Alabama Motor Fuel Marketing Act (“AMFMA”)
“Alabama is one of many states which [have enacted ‘below-cost’ statutes]
governing the sale of motor fuel. That statute is known as the Alabama Motor Fuel
Marketing Act (the ‘AMFMA’ or the ‘Act’). The stated purpose and intent of the
AMFMA is to curb predatory pricing for the protection of consumers and promoting
fair competition in motor fuel marketing.” Young Oil Co. v. Racetrac Petroleum,
Inc., 757 So. 2d 380 (Ala. 1999) citing to Ala. Code , § 8–22–3 (1993 Repl.Vol.);
BP Exploration & Oil, Inc. v. Hopkins, 678 So.2d 1052, 1053 (Ala.1996).
The AMFMA provides that:
It shall be unlawful for any person engaged in commerce in this state to sell
or offer to sell motor fuel below cost or to sell or offer to sell it at a price lower
than the seller charges other persons on the same day and on the same level
of distribution, within the same market area, where the effect is to injure
Ala. Code § 8-22-6.
However, while the AMFMA contains a proscription against below-cost sales,
§ 8–22–8(b) of the Act expressly allows below cost sales made in good faith to meet
the equally low price of a competitor in the same relevant market:
(b) It is not a violation of this chapter if any price is established in good faith
to meet an equally low price of a competitor in the same market area on the
same level of distribution selling the same or a similar product of like grade
and quality or is exempt under Section 8–22–13.
Ala. Code , § 8–22–8(b).
Costco does not dispute for purposes of summary judgment that it was selling
fuel below cost6 and the parties agree that the AMFMA is controlling and that
matching the price of a competitor is a defense to selling fuel below cost pursuant to
the AMFMA. Thus, the only issue before this Court is whether Costco has proven
that there is no question of material of fact that it was meeting competition under
Costco has reserved such an argument for a later date. (Doc. 22-5, FN 4).
the AMFMA. More specifically, whether there is no question of material fact that
Costco (1) in good faith (2) met an equally low price (3) of a competitor (4) in the
same market area (5) on the same level of distribution (6) selling the same or a
similar product of like grade and quality.7
Meet an Equally Low Price
Costco asserts that during the relevant time period, it was meeting the price
of another retailer. In support of its position, Costco provided the following list
showing the retailer it matched on the respective day:
March 10, 2016: $1.489
March 14, 2016 (morning): $1.589
March 14, 2016 (afternoon): $1.629
March 15, 2016: $ 1.629
March 16, 2016 $ 1.629
March 17, 2016 $1.629
March 21, 2016: $1.629
March 28, 2016 $1.629
March 29, 2016 $1.629
March 30, 2016 $1.629
March 31, 2016 (morning) $1.679
March 31, 2016 (afternoon) $1.679
April 7, 2016 $1.679
April 11, 2016 $1.749
April 12, 2016 $1.749
April 13, 2016 $1.749
April 14, 2016(morning): $ 1.759
April 14, 2016 (afternoon): $ 1.759
April 15, 2016 $1.759
Quick Serve: $1.489
Quick Serve: $1.629
Quick Serve $1.629
Quick Serve/ Sam's Club:$ 1.629
Quick Serve/ Sam's Club $ 1.629
Quick Serve/ Sam's Club $1.629
Sam's Club $1.629
Sam's Club $1.629
Sam's Club $1.629
Sam's Club $1.629
Sam's Club $1.679
Mapco/Quick Serve $1.749
Quick Serve $1.749
Liberty $ 1.759
Sam's Club $1.759
A&P does not challenge Costco’s position that it is on the same level of distribution
and selling the same or a similar product of like grade and quality as the retailers
Costco has identified.
(Doc. 22-5 at 14). A&P disputes that the above prices are accurate on March 16,
2016, March 28-31, 2016, and April 15, 2016. (Doc. 35 at 23-25). A&P argues that
on those dates, Costco’s pricing data of Sam’s is incorrect and, therefore, regardless
or whether Sam’s is competitor under the AMFMA, Costco’s meeting competition
defense fails on those respective days. In support of its position, A&P relies on its
own chart (Doc. 35 at 23) based off the price tracking sheets of Wayne Russell (Doc.
35-5 at 8-26). In reply, Costco asserts that A&P has simply misread Russell’s own
data and the chart in A&P’s motion is wrong. (Doc. 40 at 27- 33). A review of
Russell’s pricing data from which A&P’s chart was supposedly derived, does confirm
Costco’s pricing on March 16, 2016 (Doc. 35-5 at 12) and March 28, 2016 (Id. at 16).
Further, Costco has provided its pricing data for March 28-31, 2016 and April 15,
2016 (Doc. 22-8 at 14-18), which shows the fluctuating gas prices between Costco
and Sam’s throughout the day, rather than the single 8 a.m. price snap shot that
Russell’s pricing data provides and A&P has not provided any factual evidence that
materially disputes the same. As such, there is no genuine issue of material fact as
to whether Costco was meeting the price of another retailer on the days in
Competitors under the AMFMA
The AMFMA defines “competition” “as any person who competes with
The Court does not conclude that Costco was, in fact, meeting the price of another
retailer, but only that A&P has failed to present probative evidence of its claim that
Costco was not meeting another retailer’s price at this stage.
another person in the same market area at the same level of distribution.” Ala.
Code § 8-22-4 (13). Costco submits that on each of sixteen days at issue, it was, at
the very least, meeting the prices of one of three competitors, i.e., Quick Serve on
Wares Ferry Road, Sam’s Club on Eastern Boulevard, or Liberty on Atlanta
Highway, and up to five competitors, adding Mapco on Vaughn Road and Valero on
Vaughn Road. (Doc. 22-5 at 20-21). In support of its motion, Costco has submitted
an affidavit of its retail and marketing expert, Dr. Robert Robicheaux, Ph.D., which
provides that he considered whether Costco was positioned as a destination retailer,
the volume of business that Costco was designed to accommodate, Costco's market
reach, Costco's location relative to interstates and highways, the availability of
substitute products, the location of Costco's tracked competitors, the distance of the
relevant competitors from Costco's Eastchase Parkway retail store, and the home or
business location of Costco's customer base. (Doc. 22-6 at 7).9 He also considered a
number of factors that retail marketers normally review when defining a business's
market area and market competitors. (Id). Dr. Robicheaux then stated:
Based on the facts and considerations mentioned herein, I have
reached several conclusions. First, Costco broadly competes for retail gasoline
sales in the Montgomery metro area. Second, Costco's decision to directly
compete with gasoline retailers within a 7.5-mile radius of their Montgomery
retail store is very conservative and fully justified. Third, Costco's primary
competitor within the Montgomery metro area is the Sam's Club at 1080
Eastern Boulevard. And finally, all gasoline retailers that Costco is currently
tracking within the Montgomery area—including the Quick Serve on Wares
Ferry Road—are in competition with Costco.
Costco also submitted the affidavit of Richard C. Rawlings (Doc. 22-8) and its price
tracking data from March 10, 2016 to April 15, 2016 (Doc. 22-9).
Therefore, given Costco's market position as a destination retailer, its
ability to accommodate a large volume of business, its market reach; its
location relative to interstates and highways, the availability of substitute
products; and the location of Costco's tracked competitors, among other
factors, it is my opinion that Costco directly competes with all the gasoline
retailers it is currently tracking in the Montgomery market.
(Id. at 10). Costco has additionally submitted “scatter maps” which map the home
addresses and work locations of Costco’s Montgomery members which show that it
has a significant amount of gas buying members located near every gas retailer it
tracks as a competitor. (Doc. 22-5 at 20; Doc. 22-7 at 3-6).
For legal support, Costco relies on the Alabama Supreme Court’s decision in
Speedway/SuperAmerica, L.L. C. v. Phillips Truck Stop, Inc., 782 So.2d 255 (Ala.
2000) wherein the Court determined that a truck stop located 80 miles away from a
defendant truck stop should be considered "a competitor in the same market area"
for purposes of the meeting competition defense. In Speedway, the Alabama
Supreme Court adopted the reasoning of the Middle District of Tennessee in
Tennessean Truckstop, Inc. v. MAPCO Petroleum, Inc., 728 F.Supp. 489 (M.D. Tenn.
1990)10 and held that based on the "commercial realities of the truck stop
competitive market"—the defendant was, in fact, in competition with a truck stop
located over 80 miles away, on a different interstate.” Id at 258. Relying on
In Tennessean Truckstop, the Court determined that truck stops located 200 miles
away from the defendant truck stop were competitors for purposes of the Meeting
Competition Defense holding that the U.S. Supreme Court's analysis in Brown Shoe
Co. v. United States, 370 U.S. 294 (1962) applied. The Middle District of Tennessee
found that the relevant market area should be defined as the markets "which
correspond to the commercial realities of the industry." Tennessean Truckstop, Inc.,
728 F.Supp. at 490. (citations omitted).
Speedway, Costco asserts that “the relevant analysis of a ‘competitor’ under
Alabama law must center on the "commercial realities of [Costco's] industry" which
establishes that “Costco’s tracked competitors is a ‘competitor’ under the AMFMA”
as a matter of law. (Doc. 22-5 at 28-29). In that respect, Costco argues that the
commercial reality of the gas retail market establishes that competitors are “those
gasoline retailers selling gasoline (a fungible commodity) to Costco’s ‘same group of
customers’ near their home and work addresses”. (Doc. 40 at 9).
In response, A&P argues that Costco “is either meeting the price of
‘competitors’ that do not fall within the definition of ‘competition’ or more
specifically is not a ‘competitor’ as provided in the AMFMA.” (Doc. 35 at 5). In
support of it position, A&P relies on the undisputed locations of Costco’s tracked
competitors and their proximity to Costco and presents fact and opinion testimony
via the affidavits of Russell, Watson, and McGuire11 (discussed herein above) to
rebut that Quick Serve, Sam’s Club, Liberty, Mapco, and Valero are competitors of
Plaintiff additionally submitted the following exhibits: a copy of a
Memorandum Opinion and Order against Costco in a similar case in the Northern
District of Alabama, Northeastern Division (Doc. 35-1); a list of the 16 alleged
competitors identified by Costco indicating the distance each competitor is from
Costco (Doc. 35-2); excerpts from the deposition of Richard Rawlings (Doc. 35-3); a
map of the City of Montgomery with Costco, A&P, and the 16 alleged competitors
circled (Doc. 35-6); an Affidavit of Tony Powell (Doc. 35-7); an Affidavit of Bobby
Patel (Doc. 35-8); a Memorandum Opinion in Campbell & Sons Oil Company, et al.,
v. Murphy Oil USA, Inc. (in the Northern District of Alabama, Northeastern
Division) granting a temporary restraining order (Doc. 35-9); a Order in Campbell &
Sons Oil Company, et al., v. Murphy Oil USA, Inc. (in the Northern District of
Alabama, Northeastern Division) granting a permanent injunction (Doc. 35-10) and;
a copy of Costco’s Pricing Philosophy (Doc. 35-11); and excerpts from the Deposition
of Robert Robicheaux (Doc. 35-12).
Costco under the AMFMA.12 More specifically, A&P argues that the competitors
selected by Costco are not true competitors because they are outside of Costco’s
“market area” i.e., they are located several miles away, on different traffic
thoroughfares, or are not equipped to compete with the amount of sales that Costco
generates. (Doc. 35 at 7-21). A&P does not dispute that Costco tracks its gasoline
buying members by the location of their home and work place, but rather argues
that a number of other factors should be considered when determining the relevant
“market area” and whether a retailer is a “competitor”.13
In support of its position, Plaintiff relies heavily on the affidavits of Russell,
Watson, and McGuire wherein the affiants opine that the comps used by Costco,
especially Quickserve, are not a true competitors of Costco based on the experience
of each affiant, the location of Costco and its proximity to the selected competitors,
the traffic thoroughfares in the City of Montgomery, and the amount of fuel that
Quick Serve sells in an average month. More specifically, Plaintiff relies on the
affidavit of Mr. Russell, wherein he stated as follows:
Not only is that Quick Serve almost six (6) miles from the Costco facility, it is
not on the same traffic route, is off the beaten path, in a poor neighborhood,
and in fact requires some effort and a number of turns to get to it from the
Costco location including going through a neighborhood from the Atlanta
Highway to get to it at the corner of Wares Ferry Road and Burbank Drive. I
A&P additionally rebuts that the other gas retailers identified by Costco are
competitors under the Act. However, the only retailers Costco claims to have “met”
for purposes of its defense are Quick Serve, Sam’s Club, Liberty, Mapco, and Valero.
Therefore, it is unnecessary for this Court to discuss whether or not the remaining
retailers are competitors under the Act.
13 A&P does not assert a geographic “market area” that would be appropriate in this
specific action under the AMFMA.
understand that Quick Serve sells on average only 17,000 gallons of fuel a
month. Based on my 50-plus years' experience in the gasoline business in the
City of Montgomery and in these very markets, I contend it is not only
inappropriate for Costco to contend Quick Serve is a competitor of Costco's for
gasoline sales, it's absurd to claim such. […]Of the remaining sixteen (16)
‘comps’ Costco claims to use to set its retail prices, three (3) of them are five
(5) or more miles from Costco; six (6) more than four (4) miles away; eleven
(11) more than three miles away; and none of them on the same traffic
thoroughfare as Costco.
(Doc. 35-5 at 4, 6). Mr. Watson similarly opined, “[Quickserve] is simply not a
competitor because of where it is located, that fact that it is off the beaten path, the
fact that it only does 18,000 gallons a month in fuel sales, etc.”. Mr. McGuire also
Costco, nor any facility doing half million gallons of fuel sales a month, would
never give any thought whatsoever to the pricing of fuel by a facility like the
Quick Serve that has been identified to me at 6000 Wares Ferry Road in
Montgomery doing 18,000 gallons a month, much less tucked in a
neighborhood off the beaten path from Costco and some five and one-half
miles from Costco.” […] “…I have reviewed, incredibly 14 of Costco's 16 listed
"comps" are more than three miles from Costco and none of those on the same
traffic thoroughfare as Costco. Even more incredible is there are sites on
there such as the Quick Serve I have referred to above, the Liberty at 6824
Atlanta Highway, the Entec and the Beeline that are five and a half miles or
more from Costco with the Entec and Beeline locations roughly seven or more
Doc. 35-13 at 3, 4). A&P further relies on these affidavits, along with the affidavit
of Plaintiff (Doc. 35-8), to show the undisputed fact that there are several gas
retailers which are closer to Costco or are on the same traffic thoroughfare which
Costco does not track as competitors. (See Doc 35-5 at 6 “My three retail locations
referenced above are all within the 7.5 mile radius which Costco indicates it uses to
identify its pricing comps. Curiously, none of my locations are on Costco’s list of
sixteen (16), even tough two of them are independent branded and one Shellbranded. […]; Doc. 35-4 at 5 “My two retail locations referenced above are within
the 7.5-mile radius which Costco indicates it uses to identify its pricing comps.
Curiously, only my location on Boyd Cooper Drive is on Costco’s list of sixteen (16):
doc. 35-8 at 2-3 “I would believe Costco would consider me a competitor of it given
the close proximity. However, I note that my location is NOT on the list of 16
"comps" which I have been shown, and which I understand Costco claims it uses to
make its daily retail pricing decisions on gasoline.”)
In support of its position, A&P relies heavily on Campbell & Sons Oil Co., et
al. v. Murphy Oil USA, Inc., 99-50-3176NE (N.D. Ala. May 7, 2001) (Doc. 35-9)
wherein the Court, in granting a temporary restraining order against defendant,
found that Murphy Oil had not established that it was “meeting competition, ” in
part, because the alleged competitors were “outside the same market area”. In that
case, the alleged competitors were “three to four miles north, and five to six miles
south, of defendant’s station.” (Doc. 35-9 at 18).14
There is very little case law that establishes whether - as a matter of law - a
gas retailer has met its burden to establish that it was meeting the price of a
competitor pursuant to the AMFMA. In fact, the only binding case from which
A&P also relies on the The Pantry, Inc. v. Costco Wholesale Corporation, et al.,
5:06-CV-04910-UWC (N.D. Ala. May 9, 2008) (Doc. 35 at 12-13), an opinion that
was, as pointed out by Costco, vacated by the Court (Doc. 40 at 8) following the
filing of a Joint Motion for Entry of Court Order Vacating Court's Order Denying
Summary Judgment and Memorandum Opinion. (Pantry, 5:06-CV-04910-UWC at
Doc. 50 (N.D. Ala. May 9, 2008). As such, Pantry will not be discussed herein.
direction can be drawn -- Speedway -- establishes that the “market area” for
purposes of a meeting competition defense is based on the “commercial realities of
the market”. Speedway, 782 So.2d at 258. However, contrary to the facts
contemplated by the Alabama Supreme Court in Speedway, the relevant market in
this action is one for retail gas in a city. Therefore, despite the fact that it is
binding, Speedway is factually dissimilar from the case at hand. Further, other
non-binding decisions in district courts have not been in unison in their findings.
For example, in Florida15, the Middle District Florida, Orlando Division, found that
a gas retailer who matched the prices of other gas retailers within a 10-mile stretch
established as a matter of law a meeting competition defense and the court granted
a motion for summary judgment for Defendants. See NJN Systems, Inc. v. Sunoco,
Inc., 95 F.Supp.3d 1330 (M.D. Fla. 2015). Despite the fact that NJN Systems is a
Florida case, it is notable because the Court in analyzing the relevant market
within a given geographic area relied on the Eleventh Circuit’s observation that
“[t]he relevant market is the ‘area of effective competition’ in which competitors
generally are willing to compete for the consumer potential, and not the market
area of a single company.” Am. Key Corp. v. Cole Nat. Corp., 762 F.2d 1569, 1581
(11th Cir. 1985) (addressing claim under Sherman Act). Further, the NJN Court
relied on the Supreme Court’s observation that, “although the geographic market in
some instances may encompass the entire Nation, under other circumstances it may
In Florida, fuel sales below cost or in a discriminatory fashion that damage
competition violate the FMFMPA.
be as small as a single metropolitan area.” Brown Shoe Co. v. United States, 370
U.S. 294, 337, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (emphasis added).16
Conversely, the Northern District of Alabama in Campbell found that a
defendant had not established that it was “meeting competition” because the
alleged competitors were “three to four miles north, and five to six miles south, of
defendant’s station.” (Doc. 35-9 at 18). In Campbell, the Court relied on Judge
Richard Posner's remark in Economic Analysis of Law that courts tend to define
"market area" "to include in the market those sellers who actually sell to the same
group of customers and exclude those who do not," and the Eleventh Circuit’s
holding that "the boundaries of the product market are determined by the
reasonable interchangeability of the use or the cross-elasticity of demand between
the product and substitutes for it." (Doc. 35-9 at 19). Notably, both Costco and A&P
cite to Posner’s language in support of their respective positions. (Doc. 39 at 10;
Doc. 40 at 9)
None of the above cases are factually on point with the facts of this case.
Therefore, the question before this Court is whether the facts in this action are so
one-sided that one party, Costco, should prevail as a matter of law. Specifically,
whether the facts so clearly establish that based on the commercial realities of the
gas retail market in a city, that a gas retailer located up to 7.5 miles away on a
Notably, this is the same case relied on by the Court in Tennessean Truckstop,
Inc. v. MAPCO Petroleum, Inc., 728 F.Supp. 489 (M.D. Tenn. 1990), discussed
different traffic thoroughfare and that may not be able to accommodate a similar
amount of sales is a “competitor” under the AMFMA as a matter of law because
those retailers share some amount of customers in common with Costco. This Court
does not find that, considering the facts in a light most favorable to Plaintiff, a jury
could not find in favor of plaintiff. Rather, a plain reading of Speedway, shows that
in determining the relevant market area for each of the retailers at issue, the Court
looked not only at the distance between one retailer and its alleged competitor, but
also the type of commodity, the location of the retailers, the traffic patterns around
the retailers, the amenities of the retailer, etc. (See Speedway, 782 So.2d at 257
“[T]he Speedway […] was designed and geographically located to attract the longhaul-truck traffic along the I–65/I–10 freight lane, as evidenced by the size of the
facility, its amenities, and the surveys conducted by Speedway. Furthermore, based
on the facts of Tennessean Truckstop […]we conclude that the trial court's finding
that Speedway was not in competition with the Gulfport Flying J, because the
Flying J was located over 80 miles away and on a different Interstate highway,
“ignores the commercial realities of the truck stop competitive market.”) (emphasis
added). In fact, Costco acknowledges despite its asserted conclusion that “location
is a factor in determining Costco’s relevant market area” and that “the relevant test
does not involve mechanical line drawing, but rather looks to the ‘commercial
realities of the  competitive market. (Doc. 40 at 17). Based on Speedway, this
Court is not satisfied that determining the commercial realities of the retail gas
market in Montgomery does not include weighing the factors such as location,
proximity, traffic thoroughfares, accommodations, size, etc. It is evident that these
are the same factors Costco’s expert considered when he determined that Costco
was competing with all of its tracked competitors from a marketing standpoint and
the same factors considered by Russell, Watson, and McGuire when they consider
whether another retailer is or is not a competitor in their positions as marketers of
retail gas in Montgomery.17
In the instant action, Costco has presented undisputed facts and expert
testimony that supports its position that is was meeting the price of other retailers
within a 7.5 mile radius, which it contends is the relevant market area. However,
A&P has also presented facts which are probative of whether or not those retailers,
were competitors under the AMFMA. The trial court’s function is not “to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Accordingly, at this stage, this Court is not required to determine the relevant
market area based on the facts, but rather to determine if the A&P has presented
facts which materially question whether, at this stage, Costco is entitled to a
judgment as a matter of law. Based on the facts submitted in this case, there exists
a question of material fact as to the relevant market area and whether the gas
retailers identified by Costco were, in fact, competitors for the purpose of Costco’s
defense of meeting competition. As a result, Costco’s Motion for Summary
This Court did not consider the opinions of Russell, Watson, and McGuire which
were previously stricken as legal conclusions.
Judgment is denied.
Costco additionally asserts that there is no question of material fact that
Costco was acting in good faith when meeting the price of its competitors. More
specifically, Costco asserts that because the gas retailers it was monitoring were, in
fact, competitors, its meeting of those retailers’ prices was in good faith. (Doc. 22-5
at 29-31). A&P conversely argues that because the gas retailers that Costco was
monitoring were not actual competitors, its meeting of those retailers was not in
good faith. (Doc. 35 at 5-6). Costco, again, relies heavily on the affidavit of Dr.
Robicheaux in addition to the maps of Montgomery showing that all of its selected
competitors are within 7.5 miles of Costco and have a number of Costco members
who either live or work around the competitors. A&P again relies on the affidavits
of Russell, Watson, and McGuire who opine that it is atypical for any gas retailer to
monitor the number of competitors that Costco monitors and that there are
numerous gas retailers who are closer in proximity to Costco that Costco does not
First, because this Court has determined that an issue of material fact exists
and summary judgment should be denied for the reasons stated above, a discussion
of whether Costco acted in good faith is not necessary. However, because a
determination on whether or not Costco acted in good faith relies in part on whether
or not the retailers it was competing with were actual competitors, there is also a
question of fact as to whether Costco acted in good faith in selecting those alleged
For the reasons stated above, the Court finds that Costco’s Motion to Strike
(Doc. 41) is GRANTED in part and DENIED in part as set forth herein above and
its Motion for Summary Judgment (Doc. 22-5) is DENIED.
DONE and ORDERED this 10th day of May, 2018.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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