RED BARN MOTORS, INC. et al v. NEXTGEAR CAPITAL, INC. et al

Filing 223

ENTRY denying Plaintiffs' 205 Motion to Strike Defendants' Notice of Additional Authority. See Entry. Signed by Judge Tanya Walton Pratt on 6/29/2017. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RED BARN MOTORS, INC.,
PLATINUM MOTORS, INC., and
MATTINGLY AUTO SALES, INC.,
Plaintiffs,
v.
NEXTGEAR CAPITAL, INC. f/k/a DEALER
SERVICES CORPORATION,
COX ENTERPRISES, INC.,
COX AUTOMOTIVE, INC., and
JOHN WICK,
Defendants.

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No. 1:14-cv-01589-TWP-DKL

ENTRY ON PLAINTIFFS’ MOTION TO STRIKE
DEFENDANTS’ NOTICE OF ADDITIONAL AUTHORITY
This matter is before the Court on a Motion to Strike Defendants’ Notice of Additional
Authority filed by Plaintiffs Red Barn Motors, Inc., Platinum Motors, Inc., and Mattingly Auto
Sales, Inc. (collectively, “Plaintiffs”) (Filing No. 205).
On May 15, 2017, Defendants NextGear Capital, Inc., Cox Automotive, Inc., and John
Wick (collectively, “Defendants”) filed their Notice of Additional Authority Regarding Class
Certification (Filing No. 204). They explain that, after the close of briefing on the Plaintiffs’
motion for class certification, the Plaintiffs filed their motion for partial summary judgment and,
for the first time, argued that the contracts at issue in this litigation are ambiguous with respect to
the date interest may accrue. The Defendants state, “In light of Plaintiffs’ ambiguity argument, and
without conceding it, Defendants hereby request leave to file this notice, bringing to the Court’s
attention the following additional authority relevant to the Court’s class certification
determination.” Id. at 1. The Defendants then list four cases and one Indiana statute with short

parenthetical summaries as they relate to the Plaintiffs’ new ambiguity argument and class
certification.
The day after the Defendants filed their Notice of Additional Authority Regarding Class
Certification, the Plaintiffs filed their Motion to Strike the Defendants’ filing. The Plaintiffs argue
that the filing is another improper attempt by the Defendants to get the final word on the class
certification motion as it was filed six days after the Court held oral argument on the motion for
class certification and ten days after the Court denied the Defendants’ motion for leave to file a
surreply brief in opposition to the class certification motion.
Replying to the Defendants’ assertion that the Notice of Additional Authority was
appropriate in light of the arguments made in the Plaintiffs’ motion for partial summary judgment,
the Plaintiffs explain their summary judgment motion was filed nearly two weeks before the oral
argument on class certification, and at the oral argument, the Defendants did not mention that they
had located additional authority that was relevant to class certification, and when the Court asked
counsel whether there were any additional matters to raise, defense counsel declined to raise this
additional authority. The Plaintiffs also point out that the Defendants did not request leave of Court
to submit any additional filings in opposition to class certification. Thus, the Plaintiffs request that
the Court strike the Defendants’ Notice of Additional Authority.
Responding to the Plaintiffs’ Motion to Strike, the Defendants assert that their Notice of
Additional Authority was filed less than three weeks after the Plaintiffs filed their summary
judgment motion, and the Defendants did not have an earlier opportunity to raise the additional
authority regarding how the Plaintiffs’ new argument affected the class certification motion. The
Defendants explain that, while analyzing the Plaintiffs’ summary judgment brief and researching
their response to the brief, “Defendants discovered Plaintiffs’ misstatement of Indiana law,

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researched the consequences for class certification, and filed the Notice of Additional Authority
as soon as possible.” (Filing No. 206 at 1–2.) They further argue that they “have not submitted any
new arguments, but simply made the Court aware of additional authority relevant to the Court’s
own ‘rigorous analysis’ of the request for class certification.” Id. at 2.
The Defendants note, “The authority cited in the Notice should be considered by the Court
on class certification independent of Defendants’ Notice, but, as officers of the Court, Defendants’
counsel sought to aid the Court in finding that authority.” Id. Further, “[s]ince they have the burden
to prove certification is appropriate and since their counsel are also officers of the Court, Plaintiffs
arguably should have alerted the Court to the authority at issue themselves after their theory of the
case recently changed from one of express breach to one of ambiguity.” Id. The Defendants also
point out that the “Plaintiffs do not contest the relevance or accuracy of the noticed authority in
their Motion to Strike.” Id.
After considering the parties’ arguments and the various motions that have been filed, as
well as the timing of the parties’ filings, the Court determines that striking the Defendants’ Notice
of Additional Authority is not necessary in this case. Each of the cases and the Indiana statute
listed in the Defendants’ Notice of Additional Authority has been included and discussed in the
Defendants’ response brief to the Plaintiffs’ summary judgment motion. Thus, the cited authority
is before the Court regardless of whether the Notice of Additional Authority is stricken from the
docket. Additionally, bringing case law to the Court’s attention, without providing subjective
argument or analysis, is simply an aid to the Court in locating relevant authority. While notifying
the Court of legal authority normally occurs in motions briefing, the Notice of Additional
Authority in this case is not prejudicial to the Plaintiffs. In this instance, the Court does not view
the Defendants’ Notice as an attempt to “get the final word,” and the Court will not treat it as such.

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For these reasons, the Court DENIES the Plaintiffs’ Motion to Strike Defendants’ Notice of
Additional Authority (Filing No. 205).
SO ORDERED.

Date: 6/29/2017

Distribution:
Ryan D. Adams
SHER GARNER CAHILL RICHTER KLEIN & HILBERT LLC
[e-mail]
Jacob A. Airey
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC.
[e-mail]
Lisa Brener
Brener Law Firm, LLC
[e-mail]
Matthew M. Coman
SHER GARNER CAHILL RICHTER KLEIN & HILBERT LLC
[e-mail]
Kathleen Ann DeLaney
DELANEY & DELANEY LLC
[e-mail]
Cassie E. Felder
THE CASSIE FELDER LAW FIRM
[e-mail]
James M. Garner
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC
[e-mail]
Steven D. Groth
BOSE MCKINNEY & EVANS, LLP
[e-mail]

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Gladstone N. Jones
JONES SWANSON HUDDELL & GARRISON, LLC
[e-mail]
David J. Jurkiewicz
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Catherine E. Lasky
JONES SWANSON HUDDELL & GARRISON, LLC
[e-mail]
Tracey K. Ledbetter
EVERSHEDS SUTHERLAND (US) LLP
[e-mail]
Jason S. McCarter
EVERSHEDS SUTHERLAND (US) LLP
[e-mail]
Kerry A. Murphy
JONES, SWANSON, HUDDELL & GARRISON, LLC
[e-mail]
Lynn E. Swanson
JONES, SWANSON, HUDDELL& GARRISON, LLC
[e-mail]
Paul D. Vink
BOSE MCKINNEY & EVANS, LLP
[e-mail]

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