Laney v. Getty et al
Filing
106
MEMORANDUM OPINION AND ORDER: 1) Dfts Albert W. Borne, Borne Investigations, Inc., Richard A. Getty, Stoner Mill Farm, LLC and The Getty Law Group, PLLC's 60 MOTION for Summary Judgment is GRANTED. Dft's motion for summary judgment on Pl a's 2002(1) claim is DENIED. Additionally, Pla's claim for punitive damages is DISMISSED with prejudice. 2) Pursuant to Rule 56(f) of the FRCP, parites are NOTIFIED that Pla may be entitled to summary judgment on his 29 U.S.C. 2002(1) claim . Parties are DIRECTED to file supp briefs re this issue w/in 14 days as noted. 3) W/in 14 days, Pla is DIRECTED to file a separate Memo outlining costs incurred prior to the date that offer of Judgment was made. Dfts shall be given 7 days thereafter to object to Pla's Memo. 4) Dfts' 61 MOTION in Limine to Exclude Health Evidence, 62 MOTION to Exclude Evidence of Prior Polygraphs, 63 MOTION in Limine to Preclude any Reference to or Insinuation of a Fraudulent ly Manufactured Email and 64 MOTION in Limine to Exclude Relationship Evidence are DENIED as moot. 5) Pla's 65 MOTION to Strike is DENIED as moot. 6) Trial of this matter is CANCELED, subject to intervening orders. Signed by Judge Danny C. Reeves on 05/05/2014. (KLB) cc: COR,D,JC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
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E. SCOTT LANEY,
Plaintiff,
V.
RICHARD A. GETTY, et al.,
Defendants.
Civil Action No. 5: 12-306-DCR
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
On June 25, 2012, Plaintiff Scott Laney was terminated from his employment with
Defendant Stoner Mill Farm, LLC (“Stoner Mill”). Before the firing, an investigator employed
by Stoner Mill and its attorney suggested that Laney take a polygraph examination. Laney
refused and subsequently sued, claiming that the requested polygraph violated his rights under
the Employee Polygraph Protection Act (“EPPA”). Because Laney would have been terminated
regardless of whether he agreed or refused to submit to the polygraph, he cannot prevail under
one section of the act, 29 U.S.C. § 2002(3).
However, the undisputed facts show that the defendants’ actions likely violate another
provision of the act, 29 U.S.C. § 2002(1). Under Rule 56(f) of the Federal Rules of Civil
Procedure, the Court will give the parties notice and time to respond to the issue of whether
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Laney is entitled to judgment as a matter of law on his § 2002(1) claim.1 The defendants’ motion
for summary judgment will be granted, in part, and denied, in part.2
I.
Plaintiff E. Scott Laney was employed as an at-will employee by Defendant Stoner Mill
Farm (“Stoner Mill”), owned by Robert and Nancy Harney, from 2006 until he was terminated
on June 25, 2012. [Record No. 1, p. 4 ¶18] Laney was hired by then-manager of Stoner Mill,
John Walden.3 [Record No. 42-1, pp. 26-27] During his employment, disputes arose between
Nancy Harney and Walden that ultimately resulted in Walden’s termination and at least three
civil actions.4 See, e.g. Harney et al. v. Walden, Civil Action No. 10-200-JBC (E.D. Ky.);
Walden v. Harney et al, Civil Action No. 5:10-204-JBC (E.D. Ky.); Harney et al. v. Walden,
Civil Action No. 12-CI-2829 (Fayette County Circuit Court). Essentially, the Harneys accused
1
Notice pursuant to Rule 56(f) was also given to the parties during the Court’s May 5, 2014, final
pretrial conference.
2
The parties have also filed a number of pre-trial motions, including: (i) Defendant Stoner Mill Farm’s
motion in limine to exclude health evidence [Record No. 61]; (ii) Defendants Getty and Borne’s motion to
exclude evidence of prior polygraphs [Record No. 62]; (iii) the defendants’ motion to preclude any reference
to or insinuation of a fraudulently manufactured email [Record No. 63]; (iv) Stoner Mill’s motion in limine
to exclude relationship evidence [Record No. 64]; and (v) the plaintiff’s motion to strike the motion to
preclude reference to the manufactured e-mail [Record No. 65]. These motions do not substantively affect
the Court’s resolution of the defendants’ motion for summary judgment, nor do they affect the Court’s
analysis of the plaintiff’s 29 U.S.C. § 2002(1) claim. Accordingly, they will be denied, as moot. In the event
that the plaintiff’s claims are not resolved in full, the parties may renew these motions for the Court’s
consideration.
3
Walden’s responsibilities included “holding and maintaining Ms. Harney’s valuable Western artifacts
on behalf of Stoner Mill.” [Record No. 41-1, p. 2]
4
The dispute involving the Harneys and Walden is described in unnecessary detail in Laney’s response
brief. [See Record No. 70]
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Walden of stealing various items from Stoner Mill, including artifacts and other valuable items.
[Record No. 60-2]
Walden was fired in April 2010, after which he filed suit against Stoner Mill and Nancy
Harney. [Record No. 70-9, p. 11] During that litigation, Walden continued to live on the farm
until he was “locked out” on June 15, 2012. [Id., p. 14] Stoner Mill claims that around this time,
invoices, receipts, and papers regarding the stolen items also disappeared. [Record No. 70, p.
3] On the morning of Friday, June 22, 2012 (approximately one week after Walden left the
farm) Laney was advised by his supervisor and then farm manager, Trinidad Arredondo, to stop
work and attend an interview. [Record No. 70, p. 11] Arredondo stated to Laney that “he didn’t
know what it was about” and Laney had no prior notice. [Record No. 70-8] The interview was
conducted by Defendants Richard Getty and Albert Borne. At the time, Getty was counsel for
Stoner Mill. Borne, a private investigator, had been hired by Stoner Mill to investigate the
missing items, including the missing invoices, receipts, and documents. [Record No. 70-9, p. 8]
Unknown to Laney, Defendants Getty and Borne recorded the parties’ discussions.
[Record No. 60-9] During the interview, Laney was questioned regarding the stolen artifacts and
documents. [See generally id.] After Borne asked Laney if he took the artifacts or documents,
Laney answered “I absolutely didn’t take it. Do you want me to take a lie detector test? I mean,
I would not steal from Nancy or take anything.” [Id., p. 19 ln.23-25] Borne responded, “[w]ell
actually, that was going to be my next question quite honestly.” [Id., p. 20 ln. 1-2] Laney then
responded, “[n]o, I’m not going to take a lie — I mean I didn’t take it.” [Id., ln. 3-5]
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After this exchange, the subject of a polygraph examination was brought up two other
times.
Mr. Getty:
It would help, if you let, you know, us bring this guy over from
Louisville, he’s a former FBI agent, and give you a polygraph.
Mr. Laney:
Well, I mean, I know polygraphs aren’t admissible and you know.
Mr. Getty:
Yeah, I know, but I’ve used them and they’re pretty damn reliable.
Mr. Borne:
It depends on who’s giving it, but this guy is an ex-FBI and he
really knows his stuff. He’s probably the best in the state.
[Id., p. 24 ln. 8-17]
Later in the interview, Getty again broached the subject:
Mr. Getty:
It would help us, Scott, if you would agree. Just think about
whether we can get this guy to give you a polygraph.
Mr. Laney:
Okay.
Mr. Getty:
I mean, you’re not obligated to do it —
Mr. Laney:
I know.
Mr. Getty :
— but, you know, that would be helpful to us.
Mr. Laney:
Well, I’ll probably talk to a lawyer because you’re accusing me of
something that I didn’t do.
[Id., pp. 46-47 ln. 3-14]
Borne gave Laney a ride back to his work after the interview concluded. [Record No. 708, p. 6] During the trip, Borne stated “you really need to think about taking a lie detector test.”
[Id.] Laney responded that he would “think about it.” [Id.] Laney returned to work on June 25,
2012. After he arrived, Arredondo approached him and stated, “I don’t know what went on
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Friday, but the Harneys no longer want you on the farm and your position is terminated.” [Id.,
p. 8]
On October 1, 2012, Laney filed suit against Defendants Getty, the Getty Law Group,
Borne, and Stoner Mill, alleging violations of the Employee Polygraph Protection Act (“EPPA”),
29 U.S.C. § 2002(1), by requesting and suggesting that he take a lie detector test. [Record No.
1, p. 4 ¶19] Laney also claims that the defendants violated § 2002(3) of the act by terminating
him for his refusing, declining or failing to take a lie detector test. [Id., ¶22] Laney requests
actual and consequential damages, including lost wages, punitive damages, and an award of
attorney’s fees and expenses. [Id., ¶26]
II.
Summary judgment is appropriate when there are no genuine disputes regarding any
material facts and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Chao v. Hall Holding Co., 285 F.3d
415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine” unless a reasonable jury
could return a verdict for the nonmoving party. That is, the determination must be “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.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986); see Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008). In deciding
whether to grant summary judgment, the Court views all the facts and inferences drawn from the
evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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III.
The defendants argue that the plaintiff’s § 2002(3) wrongful termination claim fails
because the record conclusively establishes that the decision to terminate Laney was made prior
to the June 22, 2012 interview. Thus, they assert that there is no causal link between Laney’s
failure to submit to a polygraph and his subsequent termination. The defendant also contend that
they are entitled to summary judgment on the plaintiff’s § 2002(1) claim because Laney has not
shown that any alleged violation of the EPPA resulted in damages.
A.
29 U.S.C. § 2002(3)
The EPPA states that it is unlawful for an employer to “discharge, discipline, discriminate
against in any manner, or deny employment or promotion to, or threaten to take any such action
against” an employee who refuses to take a lie detector test.
29 U.S.C. § 2002(3). An
“employer” is broadly defined under the EPPA as including “any person acting directly or
indirectly in the interest of an employer in relation to an employee.”5 29 U.S.C. § 2001(2). The
standard that applies to EPPA claims is muddled. Further, the Sixth Circuit has side-stepped the
issue of whether the mixed-motive framework of Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), applies to EPPA claims. Bass v. Wendy’s of Downtown, Inc., 526 F. App’x 599, 2013
WL 2097359 (6th Cir. 2013) (unpublished) (“Although it is not clear that Price Waterhouse is
necessarily the appropriate test, the Price Waterhouse framework places a relatively light burden
on plaintiffs and alternative tests would not aid — indeed they would likely harm — [the
5
The defendants have abandoned their argument that Getty and Borne were not employers as defined
by the EPPA. The broad language of the EPPA’s definition of employer encompasses Getty and Borne and
their respective firms. By their own admission, they were acting Stoner Mill’s interest in their dealings with
Laney.
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plaintiff’s] claim.”). Without deciding the issue, the Sixth Circuit implicitly approved the
application of a mixed-motive framework at the summary judgment stage of an EPPA claim.
Id. at 602-03; see also Worden v. SunTrust Banks, Inc., 549 F.3d 334 (4th Cir. 2008) (applying
the mixed-motives framework to a claim brought under the EPPA).
“Under the Price Waterhouse framework, a plaintiff first must offer evidence that the
discriminatory factor — in this case the polygraph — was a motivating factor in the adverse
employment action. . . . Once the plaintiff has made a prima facie case, the employer can avoid
liability by proving that it would have made the same decision in the absence of the
discriminatory motivation.” Id. at 603 (internal citation omitted).6 Laney relies primarily on the
temporal proximity of the suggestion that he take a polygraph and his termination in an attempt
to satisfy his burden under § 2002(3). Assuming that temporal proximity alone establishes a
prima facie case under § 2002(3), the burden shifts to the defendants to show that Laney would
have been terminated regardless. See Worden, 549 F.3d at 343.
The defendants have produced evidence which conclusively establishes that Laney would
have been terminated notwithstanding his failure to take a polygraph examination. Nancy
Harney claims that, on June 21, 2012, she called Defendant Borne and asked him if he would
interview Laney, because she wanted to “let him go.” [Record No. 70-9, p. 18; see also Record
No. 60-5, p. 3.] Further, the defendants have produced an e-mail dated June 21, 2012, sent from
6
The defendants argue that Laney never truly refused to take a lie detector test, based on his
unequivocal answers. However, a reasonable juror could find that Laney’s statements of “No, I’m not going
to take a lie . . . ” amounted to a refusal to take a polygraph. Despite the fact that Laney did not finish his
thought, he clearly said “no” to the question of the lie detector test. Further, a reasonable juror could find that
Laney’s other responses amounted to a refusal to submit to a polygraph, even though Laney later said that
he would “think about it.” The Court accepts for the purposes of this motion that Laney refused to take a lie
detector test within the meaning of the EPPA.
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Borne to Getty and a third party that memorializes Nancy Harney’s intention to terminate Laney
prior to June 22, 2012. [Record No. 60-8] The e-mail states, in pertinent part that “Nancy
[Harney] just called and asked me when she could get Scott [Laney] interviewed and off the
farm. I think Nancy is feeling a little insecure with Scott on the property. Let me know.” [Id.]
This e-mail, dated a day before the interview and four days prior to Laney’s termination,
supports the defendants’ assertion that causation is lacking.
Stoner Mill contends that the decision to terminate Laney occurred in 2010, when Nancy
Harney and Arredondo determined that all employees hired under Walden should be fired.
[Record No. 60-8] Nancy Harney testified that she did not terminate Laney at that time for fear
of creating a hostile witness in the midst of ongoing litigation with Walden. [Record No. 70-9,
p. 20] In addition, she swore, via affidavit, that they might learn valuable information about
Walden and the missing property. [Record No. 60-5]
In addition to the foregoing matters, the contention that the decision to terminate Laney
was made prior to June 22, 2012, is supported by other evidence. [See Record No. 60-7.] For
example, Arredondo states that he discussed terminating Laney in 2010, and affirms that he was
informed of Nancy Harney’s final decision to terminate Laney prior to June 22, 2012.7 [Id.,
pp. 3-4]
Laney relies solely on the fact that he was fired the next business day after the interview
to show that his failure to submit to a polygraph was the reason he was fired. But even where
7
Laney attacks Arredondo’s affidavit by labeling it inconsistent with his June 25, 2012 surprise at
delivering the news that Laney had been terminated from the farm. However the plaintiff’s impression of
Arredondo’s statement does not create a disputed issue of material fact.
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temporal proximity is enough to establish a prima facie case, it is not enough to overcome the
significant probative evidence that the defendants have produced. Although Laney attacks the
defendants’ evidence (calling it fabricated, fraudulent, and a “sham”), he has not offered any
evidence beyond the timing of the termination to establish causation. His assertion that the
“defense in this case is tainted from top to bottom” and his contention that “e-mails can be easily
fabricated and backdated” are pure speculation unsupported by any evidence upon which this
Court can rely. [Record No. 70, p. 29]; see Major League Baseball Props., Inc. v. Salvino, Inc.,
542 F.3d 290, 310-12 (2d Cir. 2008) (“A party opposing summary judgment does not show the
existence of a genuine issue of fact to be tried merely by making assertions that are conclusory
or based on speculation.”); Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir. 2005)
(unbelievable evidence does not create a factual dispute such that summary judgment should be
denied).
Where, as here, the record is clear that an employer would have terminated an employeeplaintiff without any mention of a polygraph, summary judgment is appropriate.8 See Worden,
549 F.3d at 343. Laney has failed to show the requisite link between Laney’s refusal to submit
to a polygraph and his termination. Instead, the evidence conclusively establishes that the
decision to terminate Laney was made prior to the June 22, 2012 interview. [See Record No. 603, 60-4, 60-5, 60-6, 60-7, and 60-8.] As a result, the defendants are entitled to summary
judgment on the plaintiff’s § 2002(3) claim.
8
The fact that Laney was a satisfactory employee is not probative of whether his termination was a
result of his failure to submit to a polygraph.
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B.
29 U.S.C. § 2002(1)
The defendants also argue that they are entitled to summary judgment regarding he
plaintiff’s claim brought pursuant to § 2002(1).9 Under that provision, it is unlawful for an
employer “directly or indirectly, to require, suggest, or cause any employee or prospective
employee to take or submit to any lie detector test.” § 2002(1). “Because the statute is phrased
in the alternative, its plain language prohibits an employer from requesting or suggesting that an
employee submit to a polygraph exam, even where the test if ultimately not administered and no
adverse employment action is taken as a consequence.” Polkey v. Transtecs Corp., 404 F.3d
1264, 1267-68 (11th Cir. 2005).
The defendants contend that they are entitled to summary judgment on this claim because
they did not suggest or request that Laney take a lie detector test. However, a review of the
interview between Defendants Borne and Getty and Plaintiff Laney establishes that this assertion
is incorrect. [Record No. 60-9] The relevant facts are not disputed. [Id.] The issue of a
polygraph was first brought up by Laney by asking, “[d]o you want me to take a lie detector test?
I mean, I would not steal from Nancy or take anything.” [Id., p. 19 ln. 23-25] Borne responded
by indicating that his next question was going to be whether Laney would agree to take a
polygraph examination. [Id., p. 20 ln. 1-2] In response, Laney refused. [Id., ln. 3-5] If that had
been the only mention of a polygraph during the interaction, the defendants might be entitled to
summary judgment regarding this claim. See, e.g. Watson v. Drummond Co., 436 F.3d 1310
(11th Cir. 2006) (an employer was entitled to summary judgment on employee’s § 2002(1) claim
9
Not much has changed since the Fourth Circuit noted the “paucity” of case law interpreting the
EPPA. See Worden, 549 F.3d at 340.
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where a polygraph was offered to employee after a request by the union to benefit the employee
by providing an opportunity to prove his innocence). But this was not the only time that a
polygraph was suggested or requested.
Getty and Borne unequivocally requested that Laney submit to a polygraph three other
times. [See Record No. 60-9, p. 46 (Getty: “It would help us, Scott, if you would agree. Just
think about whether we can get this guy to give you a polygraph.”); Id., p. 24 (Getty: “It would
help, if you let, you know, us bring this guy over from Louisville, he’s a former FBI agent, and
give you a polygraph.); Record No. 70-8, p. 6 (Borne: “you really need to think about taking a
lie detector test.).”] Based on the plain language of the statute, the defendants are not entitled
to summary judgment because they did violate § 2002(1) of the EPPA by requesting and/or
suggesting that Laney take a polygraph. See Veazey v. Communications & Cable, Inc., 194 F.3d
850, 860 (7th Cir. 1999) (The EPPA is intended to be interpreted broadly.). See also Polkey, 404
F.3d at 1268 (“Because the statutory text clearly prohibits a covered employer’s request or
suggestion that an employee submit to a lie detector exam, the EPPA’s language both begins and
ends [the] inquiry.”).
The defendants also argue that the plaintiff’s § 2002(1) claim fails because there are no
damages stemming from the alleged violation. Unfortunately, there is a dearth of case law
regarding the EPPA generally, and this provision specifically. See Polkey, 404 F.3d at 1268 n.5
(“Because the EPPA’s broad prohibitions have virtually eliminated polygraph exams from the
workplace, there is little precedent interpreting the statute.”). The defendants rely on the Sixth
Circuit’s decision in Bass to support their contention that summary judgment is appropriate
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regarding Laney’s § 2002(1) claim. In Bass, a pro se litigant brought a claim under § 2008 of
the EPPA after his employer disclosed the results of his polygraph examination. 526 F. App’x
at 601. The Sixth Circuit upheld the district court’s grant of summary judgment, in part because
the plaintiff did not show that he had suffered any harm as a result of the employer’s unlawful
disclosure of his polygraph examination. Id. at 601.
Here, Laney’s Complaint and testimony indicates that he seeks lost wages, future lost
wages, punitive damages, and legal fees and expenses.10 [Record No. 41-3, pp. 17-18] He also
asserts that nominal damages are available to him under the EPPA. [Record No. 60-1, p. 13 n.7]
The defendants argue that these damages do not stem from the defendants’ suggestion that Laney
take a polygraph examination. Thus, they contend that he has failed to allege that he suffered
any harm as a result of the defendants’ suggestion or request. [Record No. 60-1, p. 13]
The defendants’ broad interpretation of Bass contravenes the plain language of the EPPA.
See 29 U.S.C. §§ 2002(1), 2005(c) (stating that an employer is liable for appropriate legal or
equitable relief, including, but not limited to, payment of lost wages and benefits and costs,
including attorney’s fees for the prevailing party). Further, accepting the defendants’ reading
of Bass’ cursory discussion of damages would render § 2002(1) virtually meaningless. Bass, 526
F. App’x at 601. Bass concerned a separate provision of the EPPA and does not mention the
availability of nominal damages. See id. Here, the undisputed factual evidence establishes a
technical violation of the EPPA. Laney has requested nominal damages as well as costs and
10
Legal fees and expenses are termed costs under the EPPA. 29 U.S.C. § 2005(c)(3).
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attorneys’ fees that are authorized under the EPPA.11 Accordingly, the defendants are not
entitled to judgment as a matter of law on Laney’s § 2002(1) claim.
Finally, the Court rejects the plaintiff’s contention that he is entitled to an award of
punitive damages. See Mennen v. Easter Stores, 951 F. Supp. 838 (N.D. Iowa) (holding that
even if punitive damages are available to a plaintiff under 29 U.S.C. § 2005(c)(1), the plaintiff
failed to establish malice or the reckless indifference to the federally protected rights of an
aggrieved individual). The relevant evidence supporting an award of punitive damages is simply
the violation of the EPPA and his subsequent termination. [Record No. 60-2, p. 19] The record
is devoid of facts that would support the requisite finding that the defendants actions were
malicious, willful, or recklessly indifferent to his federally protected rights. Accordingly, the
plaintiff’s claim for punitive damages will be dismissed.
IV.
For the reasons stated above, it is hereby
ORDERED as follows:
(1)
Defendants Albert W. Borne, Borne Investigations, Inc., Richard A. Getty, Stoner
Mill Farm, LLC, and the Getty Law Group, PLLC’s motion for summary judgment on Plaintiff
E. Scott Laney’s claim under 29 U.S.C. § 2002(3) claim [Record No. 60] is GRANTED. The
defendants’ motion for summary judgment on the plaintiff’s § 2002(1) claim [Record No. 60]
is DENIED. Additionally, the plaintiff’s claim for punitive damages is DISMISSED, with
prejudice.
11
Laney’s request for attorneys’ fees is contained in the Complaint, while the request for nominal
damages is contained in a supplementation. [See Record No. 87, p. 6.]
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(2)
Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, the parties are
NOTIFIED that Plaintiff E. Scott Laney may be entitled to summary judgment on his 29 U.S.C.
§ 2002(1) claim. The parties are DIRECTED to file supplemental briefs regarding this issue
within fourteen (14) days of the entry of this Memorandum Opinion and Order.
The
supplemental briefs shall not exceed five (5) pages in length.
(3)
Within fourteen (14) days of the entry of this Memorandum Opinion and Order,
Plaintiff E. Scott Laney is DIRECTED to file a separate memorandum outlining the costs
incurred prior to the date that an offer of judgment was made, pursuant to Rule 68(d) of the
Federal Rules of Civil Procedure. The defendants shall be given seven (7) days thereafter to
object to the plaintiff’s memorandum regarding costs.
(4)
Defendants’ motions in limine [Record No. 61, 62, 63, and 64] are DENIED, as
(5)
Plaintiff E. Scott Laney’s Motion to Strike [Record No. 65] is DENIED, as moot.
(6)
The trial of this matter is CANCELED, subject to intervening orders.
moot.
This 5th day of May, 2014.
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