Philpot v. Microbilt Corporation

Filing 34

MEMORANUDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 2/9/2018 denying 20 Motion for Summary Judgment; denying 21 Motion for Summary Judgment; denying 29 Motion for Sanctions. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:16-CV-382-TBR-LLK

DELMAS PHILPOT,

PLAINTIFF

v.
MICROBILT CORPORATION,

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on cross motions for summary judgment and a
motion for sanctions. Defendant Microbilt Corporation filed a Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56. [R. 20.] Plaintiff Delmas Philpot responded, [R.
24], and Microbilt replied, [R. 25]. Plaintiff Philpot also filed a Motion for Summary Judgment
pursuant to Rule 56, [R. 21], to which Microbilt responded, [R. 23], and Philpot replied, [R. 26].
Lastly, Microbilt filed a Motion for Sanctions, [R. 29], and Philpot responded, [R. 31]. The
deadline for Microbilt to file a reply has passed. This matter is now ripe for adjudication. For the
reasons stated herein, Microbilt’s Motion for Summary Judgment, [R. 20], is DENIED, Philpot’s
Motion for Summary Judgment, [R. 21], is DENIED, and Microbilt’s Motion for Sanctions, [R.
29], is DENIED.
BACKGROUND
The general facts of this case are described in the Court’s prior opinion, Philpot v.
Microbilt Corp., No. 3:16-CV-00382-TBR, 2016 WL 7395289 (W.D. Ky. Dec. 21, 2016).
Briefly, Philpot filed this action against Microbilt arguing that Microbilt violated 15 U.S.C. §
1681k of the Fair Credit Reporting Act (FCRA), as well as defamed him by providing an
inaccurate consumer report to his prospective employer, Fenton & McGarvey. [R. 1-2 at 4
1

(Complaint).] The Court dismissed Philpot’s claim of defamation in the prior opinion. See
Philpot, No. 3:16-CV-00382-TBR, 2016 WL 7395289, at *4. However, Philpot’s claim for
violating § 1681k of the FCRA still stands, which is the subject of the cross motions for
summary judgment before the Court.
More recently, Microbilt filed a Motion for Sanctions arising out of Philpot including
confidential documents, produced in accordance with the Stipulated Protective Order, [R. 19], in
his Motion for Summary Judgment, [R. 21]. The Court will first address the cross motions for
summary judgment followed by Microbilt’s Motion for Sanctions.
DISCUSSION
I.

Motions for Summary Judgment
Summary judgment is appropriate when the record, viewed in the light most favorable to

the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of
material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
Court “may not make credibility determinations nor weigh the evidence when determining
whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil,
188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question 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.’” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir.
2012) (quoting Anderson, 477 U.S. at 251–52).

2

As the party moving for summary judgment, the defendant must shoulder the burden of
showing the absence of a genuine dispute of material fact as to at least one essential element of
Plaintiff’s claims. Fed. R. Civ. P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)). Assuming each defendant satisfies its burden of production,
Plaintiff “must—by deposition, answers to interrogatories, affidavits, and admissions on file—
show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex
Corp., 477 U.S. at 324).
The FCRA imposes civil liability on any “consumer reporting agency,” or CRA for short,
which negligently fails to comply with its obligations under the Act. 15 U.S.C. § 1681o. In fact,
any person who is found negligent in failing to comply with its FCRA duties is liable to the
consumer for actual damages sustained as a result of the failure. Miller v. Wells Fargo & Co.,
No. 3:05-CV-42-S, 2008 WL 793683, at *4 (W.D. Ky. Mar. 24, 2008) (citing 15 U.S.C. §
1681o) (Simpson, J.). Of those many obligations, the one pertinent to this action is found in §
1681k(a). Under that provision, a CRA which furnishes a report containing information likely
adverse to a consumer's employment prospects must notify the consumer at the time the report is
furnished, id. § 1681k(a)(1), unless it maintains strict procedures designed to ensure that the
information reported is complete and up-to-date, id. § 1681k(a)(2).
Here, Philpot argues he is entitled to summary judgment due to Microbilt’s failure to
maintain “strict procedures” as required by § 1681k(a)(2).1 In contrast, Microbilt argues
summary judgment should be granted in its favor due to evidence that it maintained such “strict
procedures.” Furthermore, Microbilt argues that it is also entitled to summary judgment due to

1

For purposes of summary judgment, Microbilt concedes that it is a CRA and that it reported public record
information likely to adversely impact Philpot’s ability to obtain employment. [R. 23 at 2 (Microbilt Response to
Motion for Summary Judgment).] Furthermore, Microbilt concedes that it did not send a notification of its report to
Philpot, therefore, it does not rely upon § 1681k(a)(1) as a defense. [Id.]

3

Philpot’s failure to prove that its alleged violation of the FCRA caused him to suffer actual
damages. See 15 U.S.C. § 1681o. The Court will address both issues in turn.
A. Damages Under §1681o
Section 1681o states that any person who negligently fails to comply with the FCRA with
respect to a consumer, is liable to that consumer for “any actual damages sustained by the
consumer as a result of the failure.” 15 U.S.C. § 1681o. “To prevail on claims under this section,
Plaintiff must establish (1) actual damages, and (2) a causal relationship between the damage and
[defendant’s] alleged violations of the FCRA.” Moore v. First Advantage Enter. Screening
Corp., No. 4:12-CV-00792, 2013 WL 1662959, at *4 (N.D. Ohio Apr. 17, 2013) (citing Elsady
v. Rapid Global Bus. Solutions, Inc., No. 09–11649, 2010 WL 742852, at *3 (E.D. Mich. Feb.
26, 2010). “The burden of proving causation remains with Plaintiff at all times to prove that the
alleged FCRA violation was [a] substantial factor in causing the asserted actual damages.” Id.
(citing Garrett v. Trans Union, LLC, No. 2:04-CV-00582, 2006 WL 2850499, at *11 n. 5 (S.D.
Ohio Sept. 29, 2006)).
Here, Philpot claims actual damages of lost wages and benefits of prospective
employment with Fenton and McGarvey, emotional distress, and injury to his professional
reputation. [R. 1-2 at 5.] In its Motion for Summary Judgment, Microbilt argues that Philpot has
failed to prove that Microbilt’s alleged violation of the FCRA caused his damages and has
offered no evidence of damages from emotional distress “beyond his own self-serving
testimony.” [R. 20-1 at 7-8 (Microbilt Motion for Summary Judgment).]
1. Lost Wages and Benefits
In arguing that Philpot has failed to prove the causation factor of §1681o, Microbilt cites
three different cases from the Sixth Circuit. [See R. 20-1 at 7.] All are distinguishable from the

4

matter at hand because the plaintiffs therein failed at the summary judgment stage due to a total
lack of evidence. See Winchester v. City of Hopkinsville, 93 F. Supp. 3d 752, 772 (W.D. Ky.
2015) (“Winchester cannot demonstrate that the City's hiring decision was based upon inaccurate
information or that he was otherwise harmed by the violation. This lack of evidence of damages
proves fatal to his claim.”) (Russell, J.); McComas v. Experian Info. Sols., Inc., No. 5:14-371DCR, 2015 WL 4603233, at *5 (E.D. Ky. July 29, 2015) (granting summary judgment in favor
of defendant when plaintiff failed to provide evidence of harm or impact to her credit as a result
of incorrect data beyond the general claim that she was harmed); Garrett, No. 2:04-CV-00582,
2006 WL 2850499, at *3 (holding that the plaintiff was never actually denied credit based on an
alleged inaccurate report nor was that credit report distributed to a third party).
In contrast to these cases, Philpot has presented evidence to support his claim of lost
wages. First, Philpot argues that there was a substantial likelihood that he was to be hired
because he advanced to the background check phase of Fenton & McGarvey’s hiring procedure.
In her deposition, Fenton & McGarvey’s corporate representative, LeShana Percell, stated:
“There has to be some level of confidence from that hiring manager that’s conducting the
interview for them to even want to push that person through the [background check] process.”
[R. 20-3 at 7 (34:12-15) (Percell Depo.).] Secondly, Philpot testified that he was told after his
interview at Fenton & McGarvey that he would be hired as long as his background check did not
reveal any problems, [R. 21-5 at 14 (50:5-8) (Philpot Depo.).], and, thereafter, he was told over
the phone by an unknown employee of Fenton & McGarvey that he would not be hired due to
“something to do with your background check, something you did in North Carolina.” [Id.
(53:12-13).] In rebuttal, Microbilt provides further testimony from Percell that she was not aware
of any such phone calls to Philpot regarding his background check, and she stated that “it’s not a

5

normal practice to give verbal responses over the phone regarding backgrounds.” [R. 20-3 at 8
(46:12-16).] Lastly, Philpot provided a letter from Fenton & McGarvey addressed to Philpot
informing him that he would not be considered for employment due “in part from information
[they] received from a consumer report furnished by” Microbilt. [R. 21-4 at 2 (Letter to
Philpot).] Microbilt concedes that this letter is credible evidence of “Philpot becoming aware that
he was no longer being considered for employment,” but it emphasizes that this only leaves a
period of two weeks of unemployment before Philpot obtained a job with another firm. [R. 25 at
3 (Microbilt Summary Judgment Reply).]
After viewing the record in the light most favorable to the nonmoving party, here Philpot,
it is clear that a genuine dispute over the material facts exists. Unlike the cases cited by
Microbilt, Philpot has provided at least some evidence that the actions of Microbilt possibly
caused him harm. The Court acknowledges the weaknesses in Philpot’s evidence pointed out by
Microbilt; however, the disagreement here is not “so one-sided that one party must prevail as a
matter of law.” Back, 694 F.3d at 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251–52).
Ultimately, the disagreement over whether Microbilt’s consumer report caused Philpot to suffer
lost wages is sufficient to require submission to a jury. Id.
2. Emotional Distress
The Sixth Circuit has stated: “An injured person's testimony alone may suffice to
establish damages for emotional distress provided that she reasonably and sufficiently explains
the circumstances surrounding the injury and does not rely on mere conclusory statements.”
Bach v. First Union Nat. Bank, 149 F. App'x 354, 361 (6th Cir. 2005) (citing United States v.
Balistrieri, 981 F.2d 916, 931–32 (7th Cir. 1992)). Here, Philpot testified that, due to Microbilt’s
adverse report and Fenton & McGarvey’s subsequent refusal to hire him: he has endured “a lot

6

of mental anguish, embarrassment,” [R. 21-5 at 22 (85:13-14)]; endured additional stress from
living on $1,000 per month in unemployment benefits, which prevented him from being able to
pay his bills on time and allegedly hurt his credit, [R. 21-2 at Answer Number 16 (Philpot
Interrogatory Answers); R. 21-5 at 19 (73:12-14); R. 24 at 20 (Philpot Summary Judgment
Response)]; he had to relocate several times due to his inability to pay bills [R. 21-5 at 20
(76:10-11).]; alleges his professional reputation in his community was damaged, [R. 21-5 at 23
(87:2-25)]; and implies that this incident possibly impacted his ongoing health issue with low
blood pressure, [Id. at 24 (90:1-8)]. Philpot also provided the testimony of his friend and former
roommate, Mike Roberts, who stated:
For the next three or four months after Delmas learned that Fenton & McGarvey
would not hire him because of the adverse background check, Delmas was very
distraught and depressed. He rarely came out of his room in the apartment that we
shared. He took to drinking heavily. His financial situation became desparate
[sic]. He appeared to be almost completely immobilized by the in-justice [sic] of
the situation brought about by the adverse background check.
[R. 24-1 at 2 (Roberts Affidavit).]
In response, Microbilt argues that Philpot’s “conclusory testimony” is not enough to
establish emotional distress damages. [R. 20-1 at 9.] Furthermore, Microbilt points out that
Philpot never sought any medical treatment for his alleged emotional distress. [Id.] Indeed, the
court for the Northern District of Ohio disregarded a plaintiff’s similar testimony regarding
damages in Moore v. First Advantage Enterprise Screening Corporation by stating “A plaintiff
‘must present concrete evidence of such distress (e.g., medical reports) and his own conclusory
allegations are not enough.’” Moore, No. 4:12-CV-00792, 2013 WL 1662959, at *4 (quoting
Okocha v. HSBC Bank USA, N.A., 2010 WL 5122614, at *6–7 (S.D.N.Y. Dec.14, 2010)).
However, the facts of Moore can be distinguished from those at hand in that the plaintiff in
Moore “testified that his purported emotional distress resulted from his general inability to find a
7

job instead of anything specific allegedly done by [defendant].” No. 4:12-CV-00792, 2013 WL
1662959, at *5. In fact, the undisputed evidence in Moore proved that the plaintiff was not hired
due to a misdemeanor conviction, not due to any inaccurate information reported by the
defendant. Id. In contrast, Philpot provided testimony suggesting emotional distress due to
Microbilt’s report, which allegedly prevented him from gaining employment at Fenton &
McGarvey. Similarly, in Smith v. LexisNexis Screening Solutions, Inc., the Sixth Circuit found
the record evidence to be sufficient to support the jury’s award of compensatory damages when
the plaintiff and his wife submitted “extensive” statements describing the plaintiff’s “shame,
anger, and stress that stemmed from financial hardships” after an incorrect criminal background
check caused a six week delay in the plaintiff being hired.2 Smith, 837 F.3d 604, 611 (6th Cir.
2016). It is debatable whether the testimony provided by Philpot is as “extensive” as the
testimony in Smith. However, the evidence provided by Philpot is enough to at least create a
genuine dispute of material fact when viewing the record in the light most favorable to the
nonmoving party, here Philpot. Despite Microbilt’s arguments to the contrary, Philpot has
provided testimony that demonstrates more than a “conclusory allegation.” See Moore, No. 4:12CV-00792, 2013 WL 1662959, at *4. Though, the Court notes that Philpot’s self-diagnosis that
this incident possibly impacted his ongoing health issues involving low blood pressure would not
be admissible, as it calls for a medical expert. In sum, Microbilt’s Motion for Summary
Judgment as it pertains to Philpot proving damages pursuant to § 1681o is DENIED.
B. “Strict Procedures” Under § 1681k(a)(2)

2

The Court notes that the lower court of Smith, who’s findings the Sixth Circuit upheld regarding damages,
explained that the plaintiff’s evidence of emotional distress was more detailed than the plaintiffs of Moore and Bach
I because “in both of those cases, the only evidence presented on emotional distress was a single statement contained
in an affidavit or interrogatory that the plaintiff experienced certain physical and mental symptoms as a result of the
alleged error or conduct.” Smith v. Lexisnexis Screening Sols. Inc., 138 F. Supp. 3d 872, 888 (E.D. Mich. 2015),
aff'd in part, rev'd in part, 837 F.3d 604 (6th Cir. 2016).

8

As previously stated, a CRA which furnishes a report containing information likely
adverse to a consumer's employment prospects must notify the consumer at the time the report is
furnished, id. § 1681k(a)(1), unless it maintains “strict procedures” designed to ensure that the
information reported is “complete and up-to-date,” id. § 1681k(a)(2). Microbilt concedes that it
did not send a notification of its report to Philpot, therefore, both parties move for summary
judgment under § 1681k(a)(2). The two issues of concern are: (1) whether Microbilt adhered to
“strict procedures” and (2) whether the information in Microbilt’s report to Fenton & McGarvey
contained information that was “complete and up-to-date.”
1.

“Complete and Up to Date”

“The few courts that have had occasion to interpret this section have agreed that ‘[t]he
logical starting point for an analysis of Section 1681k is whether the information provided was
complete and up to date. If this is so, then an inquiry into the specific procedures is
unnecessary.’” Henderson v. Corelogic Nat'l Background Data, LLC, 178 F. Supp. 3d 320, 333
(E.D. Va. 2016) (quoting Obabueki v. Int'l Bus. Mach. Corp., 145 F. Supp. 2d 371, 396
(S.D.N.Y. 2001)). In its Motion for Summary Judgment, Microbilt argues that its strict
procedures “insure that Microbilt does not report incomplete or out of date records.” [R. 20-1 at
6.] Philpot retorts in its own argument for summary judgment that Microbilt’s report was not
“complete” because it did not specify that the criminal charge on Philpot’s report was for
speeding. [R. 24 at 3.]
The Court finds that neither party has satisfied its burden in achieving summary judgment
on this matter. It seems the closest factual situation within the Sixth Circuit to the matter at hand
would be that of Poore v. Sterling Testing Systems, Inc.. In Poore, the Eastern District of
Kentucky found that a reasonable jury could find that a consumer report containing a DUI

9

conviction was incomplete when the report did not include “the actual name, birthdate or social
security number of the person who was convicted of the crime.” Poore, 410 F. Supp. 2d 557, 572
(E.D. Ky. 2006). In making its determination, the court in Poore used the Webster’s Collegiate
Dictionary of “complete,” which defines the term as “having all necessary parts.” Id. As other
courts have recognized, this broad definition proves difficult to apply. See, e.g., Henderson, 178
F. Supp. 3d at 334. In an effort to further clarify what makes a report “complete,” the comments
of the Federal Trade Commission may prove useful: “For example, if the CRA reports an
indictment, it must also report any dismissal or acquittal available on the public record as of the
date of the report. Similarly, if the CRA reports a conviction, it must report a reversal that has
occurred on appeal.” FED. TRADE COMM'N, FORTY YEARS OF EXPERIENCE WITH THE FAIR CREDIT
REPORTING ACT: AN FTC STAFF REPORT WITH SUMMARY OF INTERPRETATIONS 81 (2011)).
Logically, if the CRA is required to report any reversal of a conviction, it would probably be
required to list the nature of the conviction in the first place.
Furthermore, Philpot highlights a relevant issue concerning a disclaimer located at the
bottom of each of the reports furnished to Fenton & McGarvey by Microbilt that states:
Information contained herein is derived solely from public records, which may
not be 100 percent accurate or complete. Users should consult state and federal
laws, including the Fair Credit Reporting Act, before using this information in
making business decisions based on the results. Neither we nor our vendors or
suppliers are liable for claims or damages arising from the use of this data,
beyond the cost of the search(es) performed by users. Because mis-identifications
[sic] may occur when trying to identify a particular person, based solely upon
name and other identifiers, extreme care must be exercised in the review and use
of the information available through this site. This information should not be used
in legal proceedings. It is recommended that users of this database obtain the
original document from the jurisdiction for the purpose of legal proceedings.
[R. 20-4 at 10, 12, 15, 18.] In Henderson, the Eastern District of Virginia encountered a similar
provision at the bottom of a report sold by one CRA to a third party CRA that disclaimed “any

10

warranty of completeness or accuracy.” 178 F. Supp. 3d at 335. There, the court noted its
concern over this disclaimer in denying summary judgment for the CRA. Id. The disclaimer
found at the bottom of the reports furnished by Microbilt causes this Court similar concern.
Overall, the Court finds that a genuine dispute of material fact exists as to whether the
information in Microbilt’s report was “complete and up to date.” Microbilt provides little
argument outside its assurances that its “strict procedures” would not produce “incomplete or out
of date records,” [R. 20-1 at 6], but Philpot’s opposing argument lacks the support of binding
case law. This leaves the Court skeptical of ruling in favor of either party as a matter of law.
Therefore, the Court finds that neither party has satisfied its burden for summary judgment as it
pertains to this portion of § 1681k(a)(2).
2. “Strict Procedures”
“The FCRA does not define ‘strict procedures.’” Poore, 410 F. Supp. 2d at 571. “Federal
courts have described ‘strict procedures’ as ‘heightened standards for procedures used to collect
information for employment purposes’ that are ‘necessarily a more stringent standard’ than the
‘reasonable procedures’ standard of 15 U.S.C. § 1681 e(b). Moore, No. 4:12-CV-00792, 2013
WL 1662959, at *6 (quoting Poore, 410 F. Supp. 2d at 571). Microbilt argues that it is entitled to
summary judgment based on the “strict procedures” it maintained through updating information,
performing quality assurance, and training its employees regarding FCRA compliance. [R. 20-1
at 6.] Philpot disagrees, arguing that Microbilt has failed to produce evidence of any “strict
procedures” beyond the affidavit of Microbilt’s Director of Compliance, Melissa Dennis. [R. 24
at 6.] Philpot goes on to suggest types of “strict procedures” Microbilt should be able to describe
if it were to survive summary judgment. [Id. at 6-7.]

11

The Court finds a genuine dispute of material fact exists as to whether Microbilt
maintained “strict procedures” required by the FCRA in compiling its report. Once again, the
Court looks to Moore for guidance. There, the Northern District of Ohio found that a CRA, First
Advantage, maintained strict procedures when it took three steps:
First, First Advantage searched its database for potential records. Second, First
Advantage engaged a third part contractor to confirm the existence of those
potential records. Third, when there was a discrepancy between the information
provided by the third party contractor and the results of the database search, First
Advantage personnel spoke directly with the court.
Moore, No. 4:12-CV-00792, 2013 WL 1662959, at *6. The court reasoned that “there is no
evidence to demonstrate that any amount of effort on First Advantage's part would have led to a
different result.” Id. Unlike First Advantage in Moore, Microbilt never took an extra step to
provide clarity on the unspecified criminal offense listed on the four reports it provided to Fenton
& McGarvey. However, as Microbilt points out, the same court of Moore later stated in Smith v.
Sterling Infosystems-Ohio, Inc. that nowhere on its face does § 1681k(a)(2) require a consumer
agency to contact the original source of public records information in order to obtain the full
criminal or traffic file before furnishing a report. Smith, No. 1:16-CV-714, 2016 WL 6092551, at
*5 (N.D. Ohio Oct. 19, 2016). Thus, although Moore found that those three steps taken by First
Advantage amounted to “strict procedures,” it does not necessarily follow that a failure to follow
those three steps results in an absence of “strict procedures.” Similarly, perhaps Microbilt fell
short of the process described in Moore, but that does not mean its procedures were not “strict.”
Nor does Microbilt’s failure to conform to Philpot’s interpretation of “strict procedures” entitle
Phillpot to summary judgment. In sum, there is a genuine dispute of material facts as they pertain
to § 1681k(a)(2). Microbilt’s slim evidence supporting its alleged “strict procedures” no more
entitle it to summary judgment than Philpot’s own theories as to what Microbilt’s evidence

12

lacked. Therefore, neither movant is entitled to judgment as a matter of law. Both Microbilt’s
Motion for Summary Judgment and Philpot’s Motion for Summary Judgment as they pertain to §
1681k(a)(2) are DENIED.
II.

Motion for Sanctions
Under the broad authority of Federal Rule of Civil Procedure 37 and this Court’s

“inherent power to control discovery and issue appropriate sanctions,” Microbilt files a Motion
for Sanctions. [R. 29.] Specifically, Microbilt urges the court to sanction Philpot for improper
disclosure of confidential information in order to deter Philpot from a repeat offense and deter
others from similar conduct. [Id. at 2-3.]
Here, Microbilt’s concern over deterring Philpot from a repeat offense is unfounded.
Counsel for Philpot states that he filed the documents at issue in an envelope marked
“confidential,” yet they were still filed as a part of the public record. [R. 31 at 2 (Philpot
Response to Motion for Sanctions).] Philpot did not act out of bad faith nor has Microbilt
provided any proof that his actions were willful. Furthermore, it appears that Microbilt was able
to have the particular exhibit placed under seal, and, therefore, suffered no prejudice from
Philpot’s mistake. [R. 29 at 1; R. 31 at 2.] As for deterrence for bad actors in the future, the
Court retains its discretion to impose appropriate sanctions as necessary. Thus, Microbilt’s
Motion for Sanctions is DENIED.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED:
(1) Microbilt’s Motion for Summary Judgment, [R. 20] is DENIED.
(2) Philpot’s Motion for Summary Judgment, [R. 21], is DENIED.
(3) Microbilt’s Motion for Sanctions, [R. 29], is DENIED.

13

IT IS SO ORDERED.

cc: Counsel of Record

February 9, 2018

14