Roberts v. General Motors LLC

Filing 94

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's Motion to Strike is DENIED. [Doc. 86 ] IT IS FURTHER ORDERED that defendant New GMs Motion for Continuance is DENIED without prejudice. [Doc. 89 ] IT IS FURTHER ORDE RED that by November 27, 2015, plaintiff shall file a second amended complaint in compliance with this Memorandum and Order. IT IS FURTHER ORDERED that defendant New GM may file a new motion for continuance of the trial, if appropriate, after plaintiff files a second amended complaint. Signed by District Judge Charles A. Shaw on 11/20/15. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LAURETTA ROBERTS,

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Plaintiff,
v.
GENERAL MOTORS LLC,
Defendant.

No. 4:13-CV-541 CAS

MEMORANDUM AND ORDER
This diversity matter is before the Court on plaintiff’s Motion to Strike Portions of Defendant
General Motors LLC’s Amended Answer, Including a Newly Asserted Affirmative Defense, and
defendant General Motors LLC’s (“New GM”) Motion for Continuance of the trial of this matter.
The parties oppose each other’s motions and they are fully briefed. For the following reasons,
plaintiff’s motion to strike will be denied and New GM’s motion for continuance will be denied
without prejudice. Plaintiff will be ordered to file an amended complaint that complies with the
Decision of the United States Bankruptcy Court in In re Motors Liquidation Co., No. 09-50026
(REG), 2015 WL 6876114 (Bankr. S.D.N.Y. Nov. 9, 2015).
I. Discussion
A. Bankruptcy Proceedings
This case involves a products liability personal injury claim against New GM involving a
model year 2004 GMC Savana van, designed and manufactured by General Motors Corporation
(“Old GM”). Old GM filed for bankruptcy protection in 2009. That bankruptcy proceeding is
currently pending before the Honorable Robert E. Gerber in the United States Bankruptcy Court for
the Southern District of New York, captioned In re: Motors Liquidation Co., et al., f/k/a General

Motors Corp., et al., Case No. 09-50026 (REG). New GM’s original Answer refers to the existence
of the Old GM bankruptcy, but the parties did not otherwise draw the Court’s attention to the
bankruptcy proceeding until very recently, although it has a significant effect on this matter.
As part of the Old GM bankruptcy proceeding, certain assets of Old GM were sold to New
GM pursuant to an Amended and Restated Master Sale and Purchase Agreement dated June 26,
2009 (as amended, the “Sale Agreement”). The Bankruptcy Court issued a Sale Order and
Injunction on July 5, 2009 (“Sale Order and Injunction”) approving the Sale Agreement and
providing that New GM’s purchase would be “free and clear” of liabilities and claims of Old GM
except for specifically assumed liabilities. The Bankruptcy Court retained exclusive jurisdiction to
interpret the Sale Order and Injunction and the Sale Agreement, including which claims were
assumed by New GM and which were retained by Old GM. As relevant here, New GM specifically
agreed to “assume responsibility for any and all accidents or incidents giving rise to death, personal
injury, or property damage after the date of closing of the [Section] 363 Sale,1 irrespective of
whether the vehicle was manufactured by Old GM or New GM.” See Decision on Motion to
Enforce Sale Order, In re Motors Liquidation Co., 529 B.R. 510, 533 (Bankr. S.D.N.Y. Apr. 15,
2015) (the “April Decision”).
In response to certain actions seeking to hold New GM liable for claims it asserted were
retained by Old GM, New GM moved in the Bankruptcy Court for an order enforcing the terms of
the Sale Agreement and enjoining those claims. On April 15, 2015, Judge Gerber issued the April
Decision granting New GM’s motions in part, specifically finding that plaintiffs may not pursue
claims against New GM based on successor liability or on the alleged wrongful conduct of Old GM.
See In re Motors Liquidation Co., 529 B.R. at 528 (“[I]t is plain that to the extent the Plaintiffs seek
1

11 U.S.C. § 363.
2

to impose successor liability, or to rely, in suits against New GM, on any wrongful conduct by Old
GM, these are actually claims against Old GM, and not New GM”); id., (“Claims premised in any
way on Old GM conduct are properly proscribed under the Sale Agreement and the Sale Order, and
by reason of the Court’s other rulings, the prohibitions against the assertion of such claims stand.”).
On June 1, 2015, the Bankruptcy Court entered a Judgment on its April Decision. Among
other things, the Judgment set forth a procedure by which New GM would identify allegedly
improper claims, give notice to counsel for those parties and provide an opportunity for them to
either (1) amend the operative pleading to eliminate the asserted violation of the Sale Agreement
and Bankruptcy Court orders, or (2) present their claims for a determination by the Bankruptcy
Court. On August 26, 2015, New GM’s counsel sent plaintiff’s counsel a cease and desist letter
citing the April Decision and Judgment and asserting that plaintiff’s claim for punitive damages is
in violation of the Sale Agreement and orders of the Bankruptcy Court. (Letter from Scott I.
Davidson to John G. Simon (Aug. 26, 2015), Ex. 1 to Pl.’s Response)) (Doc. 91-1).
New GM’s cease and desist letter informed plaintiff that under the April Decision and
Judgment, she had 17 business days after receipt to either (1) dismiss without prejudice her claims
that would violate the Decision, Judgment or Sale Order, or (2) file a “No Dismissal Pleading” with
the Bankruptcy Court explaining why certain claims or causes of action should not be dismissed
without prejudice. (Id. at 3, citing Judgment ¶¶ 18(a), (b)). The letter stated that if plaintiff failed
to take either action, New GM was permitted to file with the Bankruptcy Court a “notice of
presentment on five (5) business days’ notice, with an attached Dismissal Order that directs
[plaintiff] to dismiss without prejudice the [offending provisions in the Pleading] . . . , within 17
business days of receipt of the Dismissal Order.” (Id. at 4, citing Judgment ¶ 18(c)). Apparently,
neither party took any of the action as described in the cease and desist letter.
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After the Bankruptcy Court issued the April Decision and Judgment, groups of plaintiffs with
claims against New GM filed motions for post-judgment relief.2 New GM for its part asserted that
plaintiffs were violating the principles set forth in the April Decision and Judgment. The
Bankruptcy Court denied the plaintiffs groups’ motions for post-judgment relief and issued a
decision determining the extent to which the April Decision bars particular claims and allegations
in complaints against New GM in other courts. See Decision on Imputation, Punitive Damages, and
Other No-Strike and No-Dismissal Pleadings Issues, In re Motors Liquidation Co., 2015 WL
6876114, __ B.R. __ (Bankr. S.D.N.Y Nov. 9, 2015) (the “Decision”).
The Decision addresses a number of issues and several different types of claims and groups
of pending cases, including post-Sale accident products liability claims such as those asserted by
plaintiff in this case. The Bankruptcy Court stated that both New GM and the plaintiffs’ groups had
incorrectly understood the April Decision and Judgment:
For reasons described below, the plaintiffs . . . read the limitations of the
Judgment too narrowly; while most of their claims can properly be asserted, a much
smaller number of the factual allegations underpinning those claims can’t be, at least
in the absence of material amendments to those complaints. Conversely, New GM
reads the limitations of the Judgment too broadly, and the plaintiffs can assert
considerably more in the way of claims and allegations than New GM
contends–though the Court expresses no view on the extent to which claims and
allegations that pass muster under the April Decision and Judgment are otherwise
actionable under nonbankruptcy law.
Id., 2015 WL 6876114, at *2. The Bankruptcy Court also clarified its role and the “division of labor
between the bankruptcy court and the courts in which the underlying actions are pending.” Id. at
*7.

2

Most, but not all, of these claims are based on defective ignition switches in vehicles
manufactured by Old GM. Some, like plaintiff’s in this case, are based on post-Sale accidents
involving vehicles manufactured by Old GM.
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The Court’s role . . . is a “gatekeeper” role. It should be the court to decide
what claims and allegations should get through the “gate,” under the Sale Order,
April Decision and Judgment. It should also be the court to decide matters of
bankruptcy law–especially when bankruptcy law issues are important to deciding
what claims can pass through the gate. But the Court will minimize its role beyond
that, refraining from deciding issues that are better decided by the [ignition switch]
MDL court or other nonbankruptcy courts–courts that can (and undoubtedly will)
determine whether claims and allegations that get through the gate are otherwise
actionable as matter of nonbankruptcy law.
Id. at *7. Thus, the Bankruptcy Court’s decisions control the type of claims that may be asserted
pursuant to the Sale Agreement and bankruptcy law, but do not determine whether those claims are
actionable under the controlling nonbankruptcy law.
The Bankruptcy Court summarized its rulings in the Decision as follows:
(1) Any acts by New GM personnel, or knowledge of New GM personnel
(including knowledge that any of them might have acquired while previously
working at Old GM) may, consistent with the April Decision and Judgment, be
imputed to New GM to the extent such is appropriate under applicable
nonbankruptcy law. Likewise, to the extent, as a matter of nonbankruptcy law,
knowledge may be imputed as a consequence of documents in a company's files,
documents in New GM’s files may be utilized as a predicate for such knowledge,
even if they first came into existence before the sale from Old GM to New GM.
Those general principles may be applied in courts other than this one in the context
of particular allegations that rely on those principles—without the need for the
bankruptcy court to engage in further examination of particular allegations beyond
the extent to which it has done so here.
(2) Punitive damages with respect to Product Liabilities Claims or Economic
Loss claims involving Old GM manufactured vehicles may be sought against New
GM to the extent—but only to the extent—they rely solely on New GM knowledge
or conduct. Those claims may not be based on Old GM knowledge or conduct. But
they may be based on knowledge of New GM employees that was “inherited” from
their tenure at Old GM (or documents inherited from Old GM), and may be based
on knowledge acquired after the 363 Sale by New GM.
(3) Allegations in the Bellwether Actions Complaints, MDL Complaint,
Peller Complaints, and the other complaints may proceed to the extent, but only the
extent, they are consistent with the rulings above, and their allegations are pruned,
to the extent necessary, so as not to include allegations prohibited in that discussion.
Decision, 2015 WL 6876114, at **32-33.
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1. Imputed Knowledge and Punitive Damages
New GM asserts that the Bankruptcy Court’s decisions “make[] it clear that no punitive
damages claims can be maintained in this case against New GM” because the “2004 GMC Savana
van was designed, tested and manufactured by Old GM,” and that plaintiff’s claims for punitive
damages violate the Sale Order and Injunction and the Bankruptcy Court’s orders. See New GM
Reply Mem. at 2 (Doc. 93). This assertion is too broad, as the Decision indicates there are potential
avenues for the imposition of punitive damages in post-accident products liability cases such as this
one.
The Bankruptcy Court unequivocally held that New GM did not contractually assume
liability for punitive damages based on Old GM’s knowledge or conduct, id. at **2, 10-14, which
is contrary to plaintiff’s position in this case. It also held that punitive damages in actions for
personal injuries in post-sale accidents involving vehicles manufactured by Old GM “may not be
premised on anything Old GM knew or did.” Id. at *15.
The Bankruptcy Court did not, however, exclude all possibility of punitive damages against
New GM, stating that “[p]unitive damages may be sought against New GM to the extent . . . they
are based on New GM knowledge and conduct alone.” Id. at *2. In addition, “punitive damages
may still be sought in actions based on post-Sale accidents involving vehicles manufactured by Old
GM to the extent the punitive damages claims are premised on New GM action or inaction after it
was on notice of information ‘inherited’ by New GM, or information developed by New GM postsale.” Id. at *15. The Bankruptcy Court explained:
New GM might have acquired relevant knowledge when former old GM
employees came over to New GM or New GM took custody of what previously were
Old GM records. Reliance on that, for punitive damages purposes, is permissible.

6

The Post–Closing Accident Plaintiffs refer to knowledge New GM might
have acquired in that fashion as “inherited” information, and the Court finds that
shorthand to be as good as any. It is possible that New GM may have inherited
information from Old GM very soon after the 363 Sale. The Court does not know
that to be the case–because any such knowledge would have to be acquired in fact,
and not by operation of law (such as any kind of successorship theory). But to the
extent New GM employees actually had knowledge relevant to post-Sale accident
claims or Independent Claims (even if it was inherited), plaintiffs in actions asserting
such claims are free to base punitive damages claims on evidence of such knowledge
to the extent nonbankruptcy law permits.
Id. at *14 (emphasis added).
The Bankruptcy Court also stated that claims may be based solely on New GM’s alleged
wrongful conduct, which it labeled “Independent Claims.” Id. at **3, 15. The Bankruptcy Court
stated that “evidence of information obtained by New GM after the sale ‘gets through the gate,’ and
may be relied upon, for punitive damages purposes, to the extent otherwise appropriate in the
underlying actions.” Id. at *15.
The Bankruptcy Court stated that all punitive damages claims against New GM must be
based on specific documentation and proof:
As a condition subsequent to getting through the gate, the plaintiffs will have
to prove the New GM knowledge they allege, on the part of identified human beings,
and by identified documents, to the satisfaction of the MDL court or any other court
hearing those claims—and by competent proof, not on theories that New GM was
a “successor” to Old GM. But that is a matter best handled by other courts, and this
Court will not block those allegations at this time.
Id. at *23. Therefore, in order to plead a claim for punitive damages against New GM that does not
violate the Sale Order and Injunction and the Bankruptcy Court’s orders, plaintiff must specifically
include factual allegations supporting her claim.3

3

It is also necessary for plaintiff to make specific factual allegations, as opposed to more
general allegations, because discovery in this case is long closed and the case is ready for trial.
7

As presently pleaded, plaintiff’s Amended Complaint violates the Sale Order and Injunction
and other decisions of the Bankruptcy Court because it does not (1) allege that plaintiff’s claim for
punitive damages is based on (a) knowledge inherited by New GM when former Old GM employees
came over to New GM or New GM took custody of what previously were Old GM records, or (b)
knowledge New GM acquired post-sale; and (2) does not identify specific persons or documents
as the source of New GM’s knowledge. Plaintiff therefore must amend her complaint.
2. Prohibited “Blended” Allegations
The Bankruptcy Court has held several times that a post-accident products liability plaintiff
suing New GM may not “blend” allegations against Old GM with allegations against New GM, by
making “allegations that do not distinguish between Old GM and New GM, and that continue to
refer to ‘General Motors’ or ‘GM’[.]” Id. at *23. In the Decision, it sustained New GM’s objection
to the
apparently intentional use by many plaintiffs of allegations that do not distinguish
between Old GM and New GM, and that continue to refer to “General Motors” or
“GM,” which to almost anyone would muddy the distinction. In light of the Sale
Order and all of the rulings that have followed it, the offending counsel, once again,
should know better. The Court sustains New GM’s objections to that practice.
Complaints using that formulation will remain stayed unless and until they are
amended to cure violations of that character.
Id. at *18.
Plaintiff’s complaint refers collectively to Old GM and New GM, see Amended Complaint,
¶ 4 (Doc. 84), and therefore violates the Bankruptcy Court’s orders in this respect also.
3. Failure to Warn and Other Duties Claims
The Bankruptcy Court’s Decision does not prohibit a products liability plaintiff from
asserting a claim against New GM for failure to warn after the sale of a vehicle manufactured by Old

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GM. The Bankruptcy Court rejected New GM’s contention that claims based on a duty to warn after
a vehicle’s sale were Old GM Retained Liabilities:
[I]n listing claims that weren’t assumed [by New GM], the Court did not list claims
for alleged breaches of a duty to warn. If there were a duty, under nonbankruptcy
law, to warn of the danger of driving a motor vehicle with a known defect, the
violation of that duty to warn, when coupled with subsequent death or injury, might
reasonably be argued to have had a causal effect on any death or personal injury that
could have been avoided by the warning. Violations of any duty to warn could be
said to provide further support for any claims for death or personal injury that would
be actionable even as classic Product Liabilities Claims. The Court expresses no
view as whether, as a matter of nonbankruptcy law, failures to warn are actionable,
or whether the requisite duties exist. But they pass muster under [the Sale
Agreement] and get through the bankruptcy court gate.
Id. at *20.
The Bankruptcy Court also discussed another category of failure to warn claims, those which
allege failures to warn by New GM prior to any accidents, in contrast to alleged failures by Old GM.
Id. The Bankruptcy Court did not have to determine whether such claims were assumed by New
GM, because they rest on conduct allegedly on the part of New GM itself. Id. It declined to reach
the nonbankruptcy law issue of whether “New GM, as an entity that did not manufacture or sell the
vehicle, had a duty, enforceable in damages to vehicle owners, to notify people who had previously
purchased Old GM vehicles” of existing defects. Id.
In addition, the Bankruptcy Court held that the Sale Agreement and its orders do not bar
other claims based on New GM’s own conduct, such as violations of alleged duties New GM owed
to purchasers of Old GM vehicles: “New GM can argue before other courts that such duties do not
exist (or assert any other merits-based defenses to these allegations), but claims of this character that
are based on New GM’s own conduct and knowledge also get through the bankruptcy court gate.”
Id.

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Therefore, plaintiff’s claims based on New GM’s failure to warn, or other post-sale actions
or omissions by New GM, are not barred by the Sale Agreement or the Bankruptcy Court’s orders,
though they may be subject to other defenses. As her complaint is presently pleaded, however,
plaintiff has not made the necessary specific allegations with respect to New GM’s action or
inaction.
B. Pending Motions
1. Plaintiff’s Motion to Strike
This case was filed March 22, 2013 and is set for trial on January 4, 2016. The Case
Management Order (Doc. 18) established a deadline for amending pleadings of October 15, 2013,
a discovery cutoff date of October 20, 2014, and a trial date of March 9, 2015. After certain
discovery disputes were resolved, the Court ordered the parties to submit a second joint proposed
scheduling plan and subsequently issued an amended Case Management Order on November 17,
2014 (Doc. 44). The amended CMO did not include a new deadline for amending pleadings, but
moved the discovery deadline to July 2, 2015 and the trial date to January 4, 2016.
The Court on its own motion recently ordered plaintiff to amend her complaint “solely for
the purpose of alleging jurisdictional facts to show complete diversity of citizenship between the
parties,” as the original complaint’s factual allegations concerning the parties’ citizenship was
defective. See Order Concerning Jurisdiction of Oct. 1, 2015 at 2-3 (Doc. 83).4 Plaintiff filed an
Amended Complaint that complied with the Court’s Order, changing only the factual allegations in
paragraphs 1 and 2 to properly allege the parties’ citizenship. New GM filed an Answer to the

4

“Courts have an independent obligation to determine whether subject-matter jurisdiction
exists[.]” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). At the time the Court issued the Order
Concerning Jurisdiction, it was unaware of the prior decisions of the Bankruptcy Court or the
motions then pending before it.
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Amended Complaint which is different from its original answer in several respects. Plaintiff’s
motion to strike targets New GM’s addition of the following affirmative defense to her claim for
punitive damages:
20. GM LLC alleges that plaintiff’s claims for punitive damages are in
contravention of and barred by the terms of the Amended and Restated Master Sale
and Purchase Agreement and related Orders of the bankruptcy court entered as part
of the bankruptcy proceedings of General Motors Corporation.
New GM Answer to Amended Complaint at 10 (Doc. 85).
Plaintiff moves to strike this affirmative defense on the basis that New GM, without seeking
leave of Court or showing good cause, made a substantive change to its Answer by including a new
affirmative defense that purports to bar her punitive damages claim. Plaintiff asserts that the newly
asserted defense is unauthorized, untimely and improper. New GM’s response, filed before the
Bankruptcy Court issued its Decision on November 9, 2015, asserts that it is appropriate to include
a specific affirmative defense recognizing a pending issue before the Bankruptcy Court as to
whether plaintiff may properly assert a punitive damages claim in this case.
The general rule is that failure to plead an affirmative defense results in a waiver of that
defense. See Federal Rule of Civil Procedure 8(c). The Eighth Circuit has held, however, that
“when an affirmative defense is raised in the trial court in a manner that does not result in unfair
surprise, technical failure to comply with Rule 8(c) is not fatal.” First Union Nat’l Bank v. Pictet
Overseas Trust Corp., Ltd., 477 F.3d 616, 622 (8th Cir. 2006) (internal quotation marks,
punctuation, brackets and quoted case omitted). The fact that New GM did not include the new
affirmative defense in its original answer is therefore not dispositive.
The Court rejects plaintiff’s argument that GM has waived its new affirmative defense. This
argument fails to recognize the Bankruptcy Court’s jurisdiction and its effect on this case. The Sale
Order and Injunction provides that the Bankruptcy Court retains exclusive jurisdiction to enforce
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and implement its terms, including to resolve any disputes arising under or related to the Sale
Agreement. In re Motors Liquidation Co., 513 B.R. 467, 478 & n.46 (Bankr. S.D.N.Y. 2014); see
Travelers Indem. Co. v. Bailey, 557 U.S. 137, 151 (2009) (“[T]he Bankruptcy Court plainly had
jurisdiction to interpret and enforce its own prior orders”; holding that direct actions in state court
against insurer were enjoined by language of 1986 bankruptcy court orders).
Here, the Sale Order and Injunction includes injunctive provisions that prohibit the assertion
or continued assertion of claims against New GM, other than for Assumed Liabilities as defined in
the Sale Order; claims that are based on successor or transferee liability; or claims that are
inconsistent with the Sale Order’s provisions or the orders of the Bankruptcy Court. In re Motors
Liquidation Co., 513 B.R. at 473-74 & nn.22-24. Plaintiff asserts post-Sale accident products
liability claims against New GM based on a vehicle manufactured by Old GM, and her claims are
subject to the Sale Order and Injunction and Bankruptcy Court orders unless and until they are
modified or reversed. See Celotex Corp. v. Edwards, 514 U.S. 300, 306 (1995) (“[P]ersons subject
to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is
modified or reversed, even if they have proper grounds to object to the order.”) (quoted case
omitted). Plaintiff must therefore prosecute this action consistent with the Bankruptcy Court’s
orders, entirely apart from their assertion by New GM as an affirmative defense.
The Court does not understand, and New GM does not explain, why it did not previously
raise this affirmative defense, which it clearly knew about before this action was even filed.
Nonetheless, under the particular circumstances of this case, the compelling factor is that plaintiff’s
claims are subject to the Bankruptcy Court’s orders and continuing jurisdiction in its gatekeeper
role. As a result, there can be no unfair surprise or prejudice to plaintiff. In the exercise of its

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discretion the Court will allow New GM to raise the defense at this time.5 Plaintiff’s motion to
strike New GM’s Answer to the Amended Complaint will therefore be denied.
2. New GM’s Motion for Continuance
Finally, New GM moves to continue the trial of this matter in order to enforce the
Bankruptcy Court’s Decisions, based on plaintiff’s continued assertion of a claim for punitive
damages. New GM asserts that the case should be stayed until plaintiff withdraws her punitive
damage claim that blends claims against Old GM with claims against New GM, as the presence or
absence of punitive damages claims will make a significant difference in all aspects of the trial.
This motion will be denied without prejudice, based on the age of this case, its readiness for
trial, and the proximity of the trial date. Plaintiff will be ordered to amend her complaint to comply
with the Sale Order and Injunction and the Bankruptcy Court’s Decision of November 9, 2015. New
GM may file another motion for continuance of the trial after the amended complaint is filed, it if
deems necessary.
III. Conclusion
For the foregoing reasons, plaintiff’s motion to strike will be denied. Defendant New GM’s
motion to continue the trial setting will be denied without prejudice. Plaintiff will be ordered to
amend her complaint to comply with the November 9, 2015 Decision of the Bankruptcy Court and
this Memorandum and Order. To do so, plaintiff must:

5

Generally, where a party seeks leave to amend its pleadings after the deadline in the case
management order has passed, Fed. R. Civ. P. 16(b)’s good-cause standard applies. Under Rule
16(b), the party must show good cause in order to be granted leave to amend. Hartis v. Chicago
Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). “The primary measure of good cause is the
movant’s diligence in attempting to meet the order’s requirements.” Rahn v. Hawkins, 464 F.3d
813, 822 (8th Cir. 2006). Here, New GM’s lack of diligence is overcome by this Court’s obligation
to recognize the effects of the Sale Order and Injunction and other orders of the Bankruptcy Court
that control the assertion of plaintiff’s claims against New GM arising from its purchase of the assets
of Old GM.
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(1) omit all collective references to Old GM and New GM;
(2) omit any claim for punitive damages based solely on Old GM’s conduct;
(3) specifically allege any action or inaction by New GM that subjects it to liability for
plaintiff’s injuries, i.e., Independent Claims;
(4) specifically allege whether any punitive damage claim is based on:
(a) knowledge inherited by New GM when former Old GM employees came over to
New GM, or New GM took custody of what previously were Old GM records,
identifying specific persons or documents as the source of New GM’s knowledge;
or
(b) knowledge New GM acquired post-sale, identifying specific persons or
documents as the source of New GM’s knowledge; or
(c) action or inaction by New GM alone that warrants the imposition of punitive
damages on Independent Claims.
Plaintiff must carefully review the Bankruptcy Court’s November 9, 2015 Decision to
determine if other amendments or factual allegations are required in order to comply with its terms.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s Motion to Strike is DENIED. [Doc. 86]
IT IS FURTHER ORDERED that defendant New GM’s Motion for Continuance is
DENIED without prejudice. [Doc. 89]
IT IS FURTHER ORDERED that by November 27, 2015, plaintiff shall file a second
amended complaint in compliance with this Memorandum and Order.

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IT IS FURTHER ORDERED that defendant New GM may file a new motion for
continuance of the trial, if appropriate, after plaintiff files a second amended complaint.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 20th day of November, 2015.

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