Cayne et al v. Washington Trust Bank et al

Filing 233

MEMORANDUM DECISION AND ORDER denying 125 Plaintiffs Motion to Include a Prayer for Relief Seeking Punitive Damages; granting in part and denying in part 136 Defendants Motion in Limine to Exclude Testimony of Proposed Expert Christine Kosydar; d enying 149 Plaintiffs Application for Automatic Exclusion, or to Strike, the Untimely Disclosure of Defendants Experts; granting in part and denying in part 188 Plaintiffs Motion in Limine No. 7 Seeking Exclusion of Any Evidence or Testimony Conc erning Defendants Proposed Non-Retained Rebuttal Expert Witnesses; granting in part and denying in part 192 Plaintiffs Motion in Limine No. 9 Seeking the Exclusion of Any Testimony by Peter Stanton; granting 231 Defendant's Motion to Strike. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBERT CAYNE and PHYLLIS CAYNE, husband
and wife; RONNIE RIVERA, individually; SEAN
RIVERA, individually; KEN McELROY and
LAURA McELROY, husband and wife; and the
same on behalf of themselves and on behalf of all
others similarly situated,

Case No. 2:12-cv-00584-REB
MEMORANDUM DECISION AND
ORDER ON DOCKET MOTIONS
NOS. 125, 136, 149, 188 AND 192

Plaintiffs,
vs.
WASHINGTON TRUST BANK, a Washington
corporation; and WEST SPRAGUE AVENUE
HOLDINGS, LLC, a Washington limited liability
company; and JOHN/JANE DOE I-V,
Defendants.
Currently pending before the Court are Plaintiffs’ Motion to Include a Prayer for Relief Seeking
Punitive Damages (Dkt. 125), Defendants’ Motion in Limine To Exclude Testimony of Proposed Expert
Christine Kosydar (Dkt. 136), Plaintiffs’ Application for Automatic Exclusion, or to Strike, the
Untimely Disclosure of Defendants’ Experts (Dkt. 149), Plaintiffs’ Motion in Limine No. 7 Seeking
Exclusion of Any Evidence or Testimony Concerning Defendants’ Proposed Non-Retained Rebuttal
Expert Witnesses (Dkt. 188), and Plaintiffs’ Motion in Limine No. 9 Seeking the Exclusion of Any
Testimony by Peter Stanton (Dkt. 192).1 Having carefully considered the record, participated in oral
1

A decision on both parties’ motions for reconsideration (Dkts. 178, 211) will be
forthcoming.
Memorandum Decision and Order - 1

argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and
Order:2
I. MOTION FOR PUNITIVE DAMAGES
A.

Punitive Damages: Legal Standard
Plaintiffs seek to amend their complaint to assert a claim for punitive damages. Plaintiffs’

punitive damages claim is governed by Idaho Code § 6-1604, which provides that a Court shall
allow amendment to include a prayer for relief seeking punitive damages, if:
after weighing the evidence presented, the court concludes that, the
moving party has established at such hearing a reasonable likelihood
of proving facts at trial sufficient to support an award of punitive
damages.
Idaho Code 6-1604(2).3 A trial court’s decision as to whether the moving party established such a
reasonable likelihood is discretionary and reviewed for abuse of discretion. See Vendelin v. Costco
Wholesale Corp., 95 P.3d 34, 41 (Idaho 2004); see also Kuntz v. Lamar Corp., 385 F.3d 1177, 1187
(9th Cir. 2004). As a matter of substantive law, in Idaho punitive damages are not favored and
should be awarded only in the most unusual and compelling circumstances, and are to be awarded
cautiously and within narrow limits. Manning v. Twin Falls Clinic & Hosp., Inc., 830 P.3d 1185,
1190 (Idaho 1992); see also Jones v. Panhandle Distribs., Inc., 792 P.2d 315 (Idaho 1990).
Importantly, whether a party is allowed to assert a claim for punitive damages is not based
upon the type of case or claim. Todd v. Sullivan Const. LLC, 191 P.3d 196, 201 (Idaho 2008). “A

2

A more detailed discussion of the factual background and legal context is found in the
Court’s September 3, 2015, Memorandum Decision and Order (Dkt. 177).
3

The standard that must be proved at trial in order to award punitive damages is that the
plaintiff must prove by “clear and convincing evidence” conduct that is oppressive, fraudulent,
malicious or outrageous. I.C. § 6-1604(1).
Memorandum Decision and Order - 2

prayer for punitive damages is not a stand-alone cause of action, but flows from an underlying cause
of action, such as breach of contract or a tort, when the conduct of a party meets the threshold level
of being oppressive and outrageous.” Boise Tower Assocs., LLC v. Washington Cap. Joint Master
Trust, 2006 WL 1749656, *12 (D. Idaho 2006).
Conduct justifying punitive damages requires “an intersection of two factors: a bad act and a
bad state of mind.” Linscott v. Rainier Nat. Life. Ins. Co., 606 P.2d 958, 962 (Idaho 1980). See also
Todd, 191 P.3d 196, 201 (Idaho 2008); Myers v. Workmen’s Automobile Ins. Co., 95 P.3d 977, 985
(Idaho 2004). The defendant must act (1) in a manner that was an extreme deviation from
reasonable standards of conduct with an understanding of - or disregard for- its likely consequences,
and (2) with an extremely harmful state of mind, described variously as with malice, oppression,
fraud, gross negligence, wantonness, deliberately, or willfully. See Myers v. Workmen’s Auto Ins.
Co., 95 P.3d 977, 983 (Idaho 2004). Idaho law describes five factors of significance in the proof of
punitive damages: (1) the presence of expert testimony; (2) whether the unreasonable conduct
actually caused harm to the plaintiff; (3) whether there is a special relationship between the parties,
as in the insured-insurer relationship; (4) proof of a continuing course of oppressive conduct; and (5)
proof of the actor’s knowledge of the likely consequences of the conduct. Cuddy Mountain
Concrete Inc. v. Citadel Const Ins., 824 P.2d 151, 160-61 (Idaho Ct. App. 1992).
B.

Discussion
The Court considers Plaintiffs’ evidence and arguments in support of their motion to amend

to add a prayer for punitive damages in the context dictated by Idaho law: that they show a
reasonable likelihood of proving facts at trial to support such an award. I.C. § 6-1604(2); Cf. I.C.

Memorandum Decision and Order - 3

§ 6-1604(1) (at trial, claimant must prove punitive damages by “clear and convincing evidence”). 4
Plaintiffs focus on five main facts in support of their argument that they are entitled to
pursue punitive damages. In Plaintiffs’ words, these are: (1) the Bank intentionally entered into a
lending agreement where the LLC agreed to repay a $10 million loan although it received none of
the loan proceeds and gave the Club’s property to the Bank as collateral; (2) the Bank’s detailed
financial analysis concluded that repayment would necessarily come from the refundable
membership deposit proceeds paid by each member to the LLC to join the Club; (3) the Bank
knowingly accepted the membership deposit payments exceeding $4.5 million as repayment toward
the loan; (4) the Bank took ownership of the Club’s property (after the LLC’s default) in a “secretive
and voluntary” deed in lieu transaction rather than a judicial foreclosure where due process would
have protected the members, while knowing the deposits totaled $29.5 million; and (5) the Bank
voluntarily chose to take an assignment of the LLC’s Membership Agreements and incorporated
Membership Plan the LLC entered into with each member in order to maintain the membership
base, which would both maximize the resale value of the Club’s property and allow the Bank to
continue to collect member dues and charges. See Plaintiffs’ Motion for Leave to Seek Punitive
Damages (Dkt. 125) at 5-6.
For the reasons detailed herein, the Court denies Plaintiffs’ motion. The Court follows, in

4

Idaho law applies to the punitive damages motion. Idaho Code § 6-1604 is substantive
in nature and therefore controlling in this federal diversity case. See Windsor v. Guarantee Trust
Life Ins., 684 F. Supp. 630 (D. Idaho 1988); Hillborn v. Metro. Group Prop. & Cas. Ins., 2014
Wl 2506303, *1 (D. Idaho June 3, 2014). Also, as the Court briefly touched upon at the hearing,
the Court disagrees with Defendants’ characterization that Plaintiff’s motion was untimely and
must comply with Fed. R. Civ. P. 16(b). Given the unique nature of the Idaho statute on punitive
damages and the requirement that a plaintiff must seek leave to amend a complaint to add
punitive damages (and is precluded from raising such a claim in its initial pleading) the Court
finds it was timely filed.
Memorandum Decision and Order - 4

doing so, the Supreme Court’s guidance in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 422 (2003) that “a defendant’s dissimilar acts, independent from the acts upon which liability
was premised, may not serve as the basis for punitive damages.” Plaintiffs seek to rely upon such
independent acts in seeking to add a claim for punitive damages. Much of the alleged “bad
conduct” and “bad state of mind” evidence relied upon by Plaintiffs stems from the initial 2004 loan
from the Bank to the LLC. For example, Plaintiffs argue that member fees were used to “justify”
the 2004 loan, that the loan was repaid from those membership deposit fees, the LLC received none
of the loan proceeds, and the Bank’s banking practices surrounding the 2004 loan deviated from
proper standards. However, the making of the 2004 loan is not the act upon which liability in this
case is premised. Liability, if any, stems from a breach of the Membership Agreement. The
Supreme Court’s holding in Campbell made clear the distinction – a “defendant should be punished
for conduct that harmed the plaintiff, not for being an unsavory individual or business.” Id. at 423.
The Court has considered Plaintiffs’ motion, and the expert report of Christine Kosydar,
against the five factors laid out in Cuddy Mountain. Of significance is the fact that, as discussed
further below, Ms. Kosydar will not be permitted to testify on all the matters contained in her report.
Her opinions on, and criticisms of, the Bank’s practices with respect to the 2004 loan, including loan
repayment and where the loan proceeds were used, will not be allowed at trial. The nature of that
particular testimony is of minimal significance in the context of a motion to add a punitive damages
claim. The testimony which the Court will permit as to the implied assumption/breach of contract
claim is more explanatory than inculpatory. Hence, this factor does not support a punitive damages
claim.
The holding in Campbell, discussed above, is implicated by the second factor – that is, the

Memorandum Decision and Order - 5

question of whether the allegedly unreasonable conduct actually harmed Plaintiffs. Plaintiffs argue
that the 2004 “sham loan” was where the bad acts and bad state of mind began, culminating with the
breach of the membership agreement. The Court is not persuaded. Plaintiffs’ remaining claim is a
breach of contract claim, based upon a theory of implied assumption. The relevant conduct to that
claim is the conduct immediately contemporaneous to the execution of the Deed in Lieu and its
related agreements, or a part of the operation of the Club in the months which followed and the
subsequent closing of the Club. These events occurred in 2011. The conduct related to the
beginning of the loan relationship in 2004 and the following loans is too attenuated to support a
claim for punitive damages tied to the Defendants’ conduct in regard to the alleged breach of the
Membership Agreement.
Plaintiffs further argue that they were harmed by the Bank’s decision to pursue the DIL
instead of other remedies, and that the Bank engaged in a “devious thought process for extricating
themselves from the Sham Club Loan while taking advantage of the gross disparity in bargaining
power between [the Bank] and the Club’s members.” See Plaintiff’s Motion (Dkt. 125) at 12.
While the DIL transaction may have preceded the harm alleged to have been suffered by Plaintiffs,
they fail to show that the DIL was executed with a harmful state of mind towards Plaintiffs. The
DIL Agreement contains specific reference to the Bank’s responsibility to consider the best interests
of the members. Plaintiffs, obviously, contend that the ultimate denouement of these events fell far
short of meeting their best interests, but this evidence further diminishes Plaintiffs’ argument that the
Bank’s state of mind when executing the DIL was harmful towards Plaintiffs.
As to the third factor, there is no special, or fiduciary-type, relationship between Plaintiffs
and the Bank. Idaho does not recognize a special relationship between a bank, as a lender, and its

Memorandum Decision and Order - 6

debtor/borrower. See Idaho First Nat’l Bank v. Bliss Valley Foods, Inc. 824 P.2d 841, 852 (Idaho
1991). If the original borrower (the LLC) has no special relationship with the Bank, there is no
space for Plaintiffs to argue that they had a special relationship with the Bank simply because the
Bank is alleged to have taken on the LLC’s duties toward the Plaintiffs. The Plaintiffs’ relationship
in that setting can only be a relationship they inherited as a result of the Bank’s alleged assumption
of the duties contained in the Membership Agreement. Further, Plaintiffs’ argument that their
purported “member” (the golfer) relationship with the LLC (the golf club) – made more significant
in the Plaintiffs’ view by the fact of the membership deposits – was such a special relationship has
even less merit. The size of the deposits were unarguably more a function of the characteristics of
the development and the people involved – a luxury, exclusive, “world-class” golf resort touted in
part by its “ranking” in a national golf industry magazine, with “membership” limited for obvious
reasons only to those people who could afford to buy into the considerable expense of becoming
homeowners and golf club members in the development. Those facts fall short of creating a special
relationship for purposes of punitive damages.
Looking at the fourth factor, there is little evidence to suggest ongoing oppressive conduct
aimed at Plaintiffs by the Bank. Once the Bank took over the Club after the Deed in Lieu of
Foreclosure, it kept the Club in operation through the end of the golfing season. Regardless of what
ultimately transpired with the sale of the Club and the alleged termination of the Plaintiffs’ rights as
members of the Club, during the time period the Club remained open the Plaintiffs were benefitted.
And, as previously described, the record offers sparse support for a claim of ongoing oppressive
conduct aimed at Plaintiffs that is needed to demonstrate either a bad act, or bad state of mind,
standing alone, much less in tandem.

Memorandum Decision and Order - 7

The last inquiry under Cuddy Mountain pertains to whether the Bank had knowledge of the
likely consequence of its conduct. At the time the DIL was executed, the evidence and its related
inferences can just as persuasively support a conclusion that to the extent the Bank was paying
attention to such things at all, the Bank believed it would sell the Club with the memberships intact.
That assessment is entirely consistent with the general state of the evidence that the Bank was
seeking to keep the Club intact as an operational, exclusive, private golf club resort, because that
asset was more valuable than a shuttered golf course. The Court agrees with Plaintiffs that it is
inescapable that the Bank must have been aware of the consequences of its actions pertaining to the
Plaintiffs when the Club was sold and memberships were terminated; however, even leaving aside
for the moment the evidence that the Bank thought it had left any such potential liabilities at the
door when they executed the DIL, that particular, arguably “bad,” fact of terminating the
memberships is not sufficient to allow amendment for a claim of punitive damages in light of the
other factors.
Accordingly, the Court is not persuaded that Plaintiffs have shown a reasonable likelihood of
proving facts at trial of the requisite bad act and bad state of mind to support adding a punitive
damages claim under Idaho law. The circumstantial evidence alleged to support a purported bad
state of mind surrounding the breach of the Membership Agreement travels barely beyond the
breach itself. Indeed, the fact of the breach occurred as a result of events transpiring at the 11th hour.
Significantly, “a breach of contract by itself is not sufficient to warrant an award of punitive
damages.” Gen. Auto Parts Co. v. Genuine Parts Co., 979 P.2d 1207, 1211 (Idaho 1999). And,
even in cases where there is evidence that a contract was intentionally breached, a claim for punitive
damages requires evidence of malice or other bad intent on the part of the breaching party. See id;

Memorandum Decision and Order - 8

see also Todd v. Sullivan Const. LLC, 191 P.3d at 201. In the absence of bad intent, allowing
Plaintiffs to pursue a claim for punitive damages is improper. Plaintiffs’ motion is denied.5
II. DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PROPOSED
EXPERT CHRISTINE KOSYDAR
Defendants move to strike the report of Plaintiffs’ expert, Christine Kosydar, on several
grounds. First, they contend that the conclusions in her expert report regarding the Bank’s
compliance with standard banking practices (in 2004, then in 2008, 2009, and 2010) and whether the
Bank assumed the refund liability under the DIL Agreement are legal conclusions, irrelevant, and
prejudicial. Fed. R. Evid. 403, 702. Second, they argue that Ms. Kosydar’s opinions on whether the
Bank is liable under various lender-liability theories, including fraud, involve claims no longer at
issue in this case, are legal conclusions, and lead to confusion and prejudice.
The Court agrees with Defendants that the bulk of Ms. Kosydar’s report contains legal
conclusions that are an improper subject for expert testimony. Her expert report also focuses on the
2004 loan and the financial circumstances of Mr. Chesrown and the LLC leading up to the 2004
loan and after it, including supplemental loans in 2008, 2009, and 2010. The Court will prohibit Ms.
Kosydar from testifying about matters contained in her report that discuss: the history of the 2004
loan, the 2004 loan itself, the supplemental loans in 2008, 2009, and 2010, how any of these loans
were repaid, and whether such loans and related circumstances were in accordance with customary
banking practices (see, e.g., Kosydar Expert Report (Dkt. 128-5) at 2-22). The Court finds that

5

Following oral argument, Plaintiffs submitted a notice of supplemental authority (Dkt.
224) without seeking leave from the Court to file such authority. Defendants have moved to
strike this filing. The Court did not consider this supplemental authority in reaching its decision
as it was filed after the hearing, without leave from the Court. Defendants’ motion to strike
(Dkt. 231) is granted.
Memorandum Decision and Order - 9

testimony on these topics is irrelevant to the claim at issue, contain legal conclusions, and also
would likely confuse the jury on the ultimate issue to be determined.
Likewise, the Court will also prohibit Ms. Kosydar from testifying on the legal ramifications
of the DIL, specifically the assumption of the deposit liability, the DIL itself, how the Club was
operated post-DIL, the creation of West Sprague, and conclusions regarding the Bank’s liability, and
punitive damages. (See, e.g., Kosydar Expert Report pp. 25-36.) Again, the Court finds these are
legal conclusions, irrelevant, and likely to prejudice the jury.
The Court will allow Ms. Kosydar to testify as an explanatory witness on the following: the
options that the Bank, or a bank in a similar situation, would have to recover on its loan, (i.e.,
Kosydar Report, pp. 23-24), typical banking practices in similar situations leading up to the DIL and
the general background of the case necessary to explain the situation before the Bank at the time of
the DIL. The Bank objected to such testimony on the premise that the Bank’s employees would be
available to explain such matters, but that is not a basis to preclude Plaintiffs from offering their own
witness to speak to such matters.
III. PLAINTIFFS’ APPLICATION FOR AUTOMATIC EXCLUSION, OR TO STRIKE,
THE UNTIMELY DISCLOSURE OF DEFENDANTS’ EXPERTS
Plaintiffs have moved to strike what they contend were untimely disclosures of expert
testimony from the following individuals: (1) Neal Gluckman, CPA; (2) Dean Oberst; (3) Jack
Heath; (4) Mark Perko; (5) Dean Emmanuels; and (6) Julie Shiflett. (Dkt. 149). The deadline for
Defendants’ disclosure of experts was February 16, 2015. The rebuttal expert report deadline was
March 16, 2015. (Dkt. 78). Defendants disclosed these expert witnesses on March 16, 2015.
Plaintiffs argue that these experts should have been disclosed by the February 16, 2015, deadline
and because they were not, they should be stricken, or only allowed to testify as lay witnesses (for
Memorandum Decision and Order - 10

Oberst, Heath, Perko, Emmanuels, and Shiflett).
The case management form provided by the Court, and ultimately submitted by the parties
for the Court’s use in issuing a scheduling order, states: “Plaintiff to identify and disclose rebuttal
expert reports, if any, by . . .” (see Dkt. 47), the Case Management Order entered by the Court
provides: “Rebuttal expert witness disclosures shall be provided on or before . . . .” The Order is
intended to use the stipulated dates of the parties for such matters, but it does not specifically limit
the rebuttal report deadline to plaintiffs. (See Dkt. 78). Defendants seize upon this discrepancy in
arguing that their disclosures were not untimely.
As stated by the Court during the hearing, this is the first time that a party has made such an
argument in regard to the scheduling order – that is, to argue that the defendant has two expert
witness deadlines. There is, perhaps, an ambiguity. In such a context, the better practice would be
to ask for direction from the Court as to the meaning of the particular deadline. However, the Court
will accept for these purposes the representation of defense counsel that their reading of the
scheduling order permitted them to identify experts by the later date and that they believed they
were complying with the deadlines in submitting their expert disclosures and expert report on March
16, 2015. The Court will deny Plaintiffs’ motion to strike due to untimeliness.
IV. PLAINTIFFS’ MOTION IN LIMINE NO. 7 SEEKING EXCLUSION OF ANY
EVIDENCE OR TESTIMONY CONCERNING DEFENDANTS’ PROPOSED NONRETAINED REBUTTAL EXPERT WITNESSES
In Plaintiffs’ Motion in Limine No. 7, Plaintiffs seek to exclude the non-retained experts
(Oberst, Heath, Perko, Emmanuels, and Shiflett) because the proffered disclosure is insufficiently
detailed and fails to fairly apprise Plaintiffs of the scope of the intended expert testimony. See Fed.
R. Civ. P. 26(a)(2)(C) (disclosure must include “a summary of the facts and opinion to which the

Memorandum Decision and Order - 11

witness is expected to testify”). Plaintiffs argue that instead of identifying specific facts and/or
opinions that these experts would testify to, Defendants submitted short statements describing the
anticipated subject matter of the expert opinions and incorporated their deposition testimony by
reference.
The Court will not exclude the testimony of these witnesses as experts. However, the scope
of their opinion testimony shall be limited to the opinions expressed in their depositions, and solely
to those statements. Defendants shall identify and provide to Plaintiffs the portions of the deposition
testimony they intend to introduce at trial. Plaintiffs’ motion is granted in part and denied in part.
V. PLAINTIFFS’ MOTION IN LIMINE NO. 9 SEEKING THE EXCLUSION OF ANY
TESTIMONY BY PETER STANTON
Plaintiffs also move to exclude the testimony of Peter Stanton (the Bank’s Chairman),
because he was not disclosed as a potential trial witness in any disclosures until Defendants filed
their Pre-Trial Witness List (Dkt. 169) on May 4, 2015. Plaintiffs contend that the Defendants’
delay in disclosing Stanton is a violation of Fed. R. Civ. P. 26(a) and they have been prejudiced
because they did not have the opportunity to depose him prior to trial.
In response to Plaintiffs’ motion, Defendants contend that they only need to call Stanton if
the Court allows Plaintiffs to seek punitive damages, and the reason for their late disclosure was
because they did not realize a potential need for his testimony until the Plaintiffs pursued their
motion to add a punitive damages claim.
First, the Court will accept the plausibility of counsel for Defendants not realizing the need
for Stanton’s testimony until the issue of the punitive damage claim was front and center –
Plaintiffs’ motion relies in part upon statements of business practices and principles adopted by the
Bank, and it is sensible that Defendants would want Stanton to speak to such matters from the
Memorandum Decision and Order - 12

Bank’s perspective. Plaintiffs’ motion for punitive damages was not filed until February 23, 2015,
(see Dkt. 125), and the Court did not take up the motion until much more recently. Hence, the Court
will deny the motion to exclude Stanton’s testimony as having been untimely disclosed.
However, the Court also has ruled upon the limited scope of testimony that Ms. Kosydar
may give at trial. Accordingly, it is unlikely Stanton’s testimony would be necessary, given
Defendants’ representation that his testimony is only needed to rebut the particular evidence
concerning the Bank’s statements of business practices and principles. One can only follow the
other. Accordingly, Plaintiffs’ motion is granted in part and denied in part.
ORDER
IT IS THEREFORE ORDERED:
1)

Plaintiffs’ Motion to Include a Prayer for Relief Seeking Punitive Damages (Dkt.
125) is DENIED;

2)

Defendants’ Motion in Limine to Exclude Testimony of Proposed Expert Christine
Kosydar (Dkt. 136) is GRANTED IN PART and DENIED IN PART;

3)

Plaintiffs’ Application for Automatic Exclusion, or to Strike, the Untimely
Disclosure of Defendants’ Experts (Dkt. 149) is DENIED;

4)

Plaintiffs’ Motion in Limine No. 7 Seeking Exclusion of Any Evidence or
Testimony Concerning Defendants’ Proposed Non-Retained Rebuttal Expert
Witnesses (Dkt. 188) is GRANTED IN PART and DENIED IN PART;

5)

Plaintiffs’ Motion in Limine No. 9 Seeking the Exclusion of Any Testimony by
Peter Stanton (Dkt. 192) is GRANTED IN PART and DENIED IN PART; and

6)

Defendants’ Motion to Strike (Dkt. 231) is GRANTED.

Memorandum Decision and Order - 13

DATED: November 13, 2015

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

Memorandum Decision and Order - 14