COYLE NISSAN, LLC v. NISSAN NORTH AMERICA, INC.

Filing 166

ENTRY ON MOTIONS CONCERNING THE SUMMARY JUDGMENT RECORD - For the reasons explained above, the Motion for Leave to Supplement the Record (Filing No. 142 ) is GRANTED, and the Motion to Strike Extraneous Exhibits (Filing No. 145 ) is DENIED. Coyle's surreply brief and surreply evidence filed at Filing No. 152 and Filing No. 153 are stricken from the record (See Entry). Signed by Judge Tanya Walton Pratt on 2/22/2021. (TMC)

Case 4:18-cv-00075-TWP-TAB Document 166 Filed 02/22/21 Page 1 of 6 PageID #: 2948

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
COYLE NISSAN, LLC,
Plaintiff,
v.
NISSAN NORTH AMERICA, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 4:18-cv-00075-TWP-TAB

ENTRY ON MOTIONS CONCERNING THE SUMMARY JUDGMENT RECORD
This matter is presently before the Court on a Motion for Leave to Supplement the Record
(Filing No. 142) and a Motion to Strike Extraneous Exhibits (Filing No. 145) filed by Defendant
Nissan North America, Inc. ("NNA"). Plaintiff Coyle Nissan, LLC ("Coyle") initiated this action
asserting claims for breach of contract, breach of fiduciary duty, and other statutory and common
law claims against NNA, arising out of the parties' automobile manufacturer-dealer relationship.
Earlier in this litigation, the Court granted in part and denied in part NNA's Motion to Dismiss
Coyle's claims. NNA then filed a Motion for Summary Judgment (Filing No. 108) on the
remaining claims, which is now set for oral argument on February 26, 2021. This Order addresses
NNA's two Motions that concern the summary judgment record. For the following reasons, the
Court grants the Motion for Leave to Supplement the Record and denies the Motion to Strike
Extraneous Exhibits.
A.

Motion for Leave to Supplement the Record
In its Motion for Leave to Supplement the Record, NNA asks the Court for permission to

supplement the summary judgment record. NNA asserts,
To address the response in opposition to summary judgment filed by [Coyle], and
in light of additional discovery that has occurred since NNA filed its opening brief

Case 4:18-cv-00075-TWP-TAB Document 166 Filed 02/22/21 Page 2 of 6 PageID #: 2949

more than three months ago, NNA has identified seven additional facts, not in
dispute, which the Court may find material to its decision on NNA's pending motion
for summary judgment.
(Filing No. 142 at 1.)
NNA explains that in its summary judgment reply brief, it has included a section titled
"Supplemental Statement of Material Facts Not in Dispute," which consist of supplemental facts
that are expressed in seven numbered sentences and supported by admissible evidence in the form
of testimony from the principals of Coyle. The supplemental facts respond directly to Coyle's
allegations asserted in its opposition to summary judgment. NNA asks the Court to permit and
accept the supplemental statement of material facts and consider them when deciding whether
summary judgment should be granted. NNA argues that, on reply in support of summary
judgment, the moving party may supplement its statement of material facts to the extent such
additional evidence responds to the non-moving party's statement of facts. See Pike v. Caldera,
188 F.R.D. 519, 533 (S.D. Ind. 1999).
Coyle did not respond or object to NNA's Motion for Leave to Supplement the Record.
The Court grants NNA's Motion because a moving party is permitted to answer the non-moving
party's statement of material facts in dispute and the supporting evidence. The moving party is
given the opportunity to "have the final word" and reply to the response. See Lady Di's, Inc. v.
Enhanced Servs. Billing, Inc., 2010 U.S. Dist. LEXIS 29463, at *4 (S.D. Ind. Mar. 25, 2010)
("purpose for having a motion, response and reply is to give the movant the final opportunity to be
heard and to rebut the non-movant's response, thereby persuading the court that the movant is
entitled to the relief requested by the motion"). Therefore, NNA's "Supplemental Statement of
Material Facts Not in Dispute" contained in the reply brief and the cited evidence are permitted.

2

Case 4:18-cv-00075-TWP-TAB Document 166 Filed 02/22/21 Page 3 of 6 PageID #: 2950

B.

Motion to Strike Extraneous Exhibits
NNA also asks the Court to strike Coyle's "Appendix of Documents to Maintain Under

Seal," filed at Filing No. 133, which serve as a supplement to the evidence filed in support of
Coyle's response brief opposing summary judgment. NNA argues that these extraneous exhibits
were filed two weeks after Coyle's deadline for filing its summary judgment response. Therefore,
Coyle's untimely and improper appendix of documents is immaterial and impertinent because it
fails to comport with the rules of this Court and the Court's Orders in this case. NNA points out
that the Court had warned the parties that they should anticipate no further extensions of time to
the summary judgment briefing schedule, but Coyle's filing ignored that warning and was
untimely. Thus, Coyle's unnecessary clutter should be stricken from the record.
NNA additionally argues that the documents in the appendix have been submitted without
foundation and without authentication, so they are inadmissible. Further, the documents have not
been properly cited in any of the summary judgment briefing.
Coyle responds that the issues of foundation and authentication have been cured by the
affidavit submitted at Filing No. 158-1. Coyle contends the documents in the appendix were cited
in its response brief, giving examples at Filing No. 158 at 3, and it had to remove some of the
references to the appendix documents from the response brief because the documents were subject
to a protective order in this case. Coyle argues that the appendix documents are not immaterial
and impertinent as suggested by NNA. Rather, the documents were used extensively in several of
the depositions taken in this case, and they are highly relevant and consequential to the issues and
claims at play in this matter. They include market studies and reports for Coyle's facility site, site
approval, and other similar matters. They are relevant to this case, not immaterial and impertinent.

3

Case 4:18-cv-00075-TWP-TAB Document 166 Filed 02/22/21 Page 4 of 6 PageID #: 2951

Coyle further responds that it was not dilatory or slothful in submitting the appendix of
documents. Coyle explains that it contacted NNA's counsel the day before its filing deadline and
asked whether NNA would stipulate to removing its confidentiality designation of the appendix
documents. NNA did not promptly stipulate to removing the confidentiality designation, so Coyle
removed the documents and references to the documents from the response brief because of
concern over the protective order and filing them under seal. After trying to resolve the
confidentiality and protective order concerns with NNA, Coyle eventually filed its appendix of
documents in support of its response brief. Therefore, Coyle asserts, its appendix of documents
should be considered by the Court, and the Motion to Strike should be denied.
NNA replies that Coyle should have been diligent regarding the appendix documents and
sought NNA's input regarding confidentiality sooner than the day before Coyle's filing deadline,
and NNA was entitled to fifteen days under the protective order to respond to confidentiality
disputes.
Coyle's arguments are well-taken, and the Court declines to strike the appendix of
documents filed in support of Coyle's response brief at Filing No. 133. Coyle should have been
more diligent in resolving the issues of the protective order and the confidentiality of documents
earlier in the summary judgment process, but the Court will excuse the two-week delay in filing
the additional designated evidence as it appears that Coyle attempted to resolve the confidentiality
issues before the filing deadline but ultimately was unsuccessful in doing so in the ensuing days
and weeks. However, Coyle is admonished that the Court is not likely to excuse future delays.
C.

Coyle's Surreply Brief and Evidence
Finally, in its reply brief for its Motion to Strike, NNA raises the issue of Coyle submitting,
[a] surreply in opposition to NNA's summary judgment motion [Filing No. 153]
which, in violation of S.D. Ind. L.R. 56-1(d) and the Court's "no more extensions"

4

Case 4:18-cv-00075-TWP-TAB Document 166 Filed 02/22/21 Page 5 of 6 PageID #: 2952

order [Filing No. 125], was untimely submitted 11 days after service of NNA's
reply brief, and which offers new exhibits and argument beyond those raised by
NNA in its uncontested motion to supplement the record.
(Filing No. 164 at 1.)
Local Rule 56-1(d) provides:
A party opposing a summary judgment motion may file a surreply brief only if the
movant cites new evidence in the reply or objects to the admissibility of the
evidence cited in the response. The surreply must be filed within 7 days after the
movant serves the reply and must be limited to the new evidence and objections.
Because Coyle submitted its surreply brief without first seeking leave of Court to do so,
and because it submitted the surreply brief after the seven-day deadline, the Court strikes the
surreply brief and additional surreply evidence from the record, which was filed at Filing No. 152
and Filing No. 153. See Elwell v. Bade, 2020 U.S. Dist. LEXIS 105843, at *5 (S.D. Ind. June 16,
2020) (striking surreply); Strong v. Del. Cty., 976 F. Supp. 2d 1038, 1044 (S.D. Ind. 2013) (same).
CONCLUSION
For the reasons explained above, the Motion for Leave to Supplement the Record (Filing
No. 142) is GRANTED, and the Motion to Strike Extraneous Exhibits (Filing No. 145) is
DENIED. Coyle's surreply brief and surreply evidence filed at Filing No. 152 and Filing No. 153
are stricken from the record.
SO ORDERED.
Date: 2/22/2021

5

Case 4:18-cv-00075-TWP-TAB Document 166 Filed 02/22/21 Page 6 of 6 PageID #: 2953

DISTRIBUTION:
Brad S. Keeton
STOLL KEENON OGDEN PLLC
[e-mail]

Anna K.B. Finstrom
DORSEY & WHITNEY LLP
[e-mail]

Christopher DeVito
MORGANSTERN, MACADAMS &
DEVITO CO., L.P.A.
[e-mail]

Evan Livermore
DORSEY & WHITNEY
[e-mail]
Steven J. Wells
DORSEY & WHITNEY LLP
[e-mail]

Joel T. Nagle
STOLL KEENON OGDEN, PLLC
[e-mail]

William C. Wagner
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]

Ronald C. Smith
STOLL KEENON OGDEN, PLLC
[e-mail]

6