Clifford et al v. Church Mutual Insurance Company

Filing 80

OPINION AND ORDER. Plaintiffs' Motion to Compel and Motion for Sanctions, ECF 40 , is GRANTED in part. Plaintiffs' request for sanctions is DENIED. Defendant's request for sanctions ECF 43 , pp. 17-19, is DENIED. Plaintiffs' Motion for In Camera Review, ECF 47 , is DENIED. Plaintiff's Motion to Strike Defendant's "Notice" Filed on July 10, 2014, ECF 49 , is DENIED. Signed by Magistrate Judge Norah McCann King on 10/21/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JACQUIN CLIFFORD, et al.,
Plaintiffs,
vs.

Civil Action 2:13-cv-853
Judge Watson
Magistrate Judge King

CHURCH MUTUAL INSURANCE COMPANY,
Defendant.

OPINION AND ORDER
This matter is before the Court on three pending motions:
Plaintiffs’ Motion to Compel Production of Documents and Responses to
Interrogatories and Motion for Sanctions Pursuant to Fed. R. Civ. P.
37(b)(2)(a), ECF 40 (“Motion to Compel”); Plaintiffs’ Motion for In
Camera Review, ECF 47 (“Motion for In Camera Review”); and Plaintiffs’
Motion to Strike Defendant’s “Notice” Filed on July 10, 2014, ECF 49
(“Motion to Strike”).
I.

BACKGROUND
On December 12, 2001, defendant Church Mutual Insurance Company

(“defendant” or “Church Mutual”) issued Policy 063427-21-052620
effective for the period December 12, 2001 through December 12, 2004
(“Policy A”) to Licking Baptist Church of Hebron, Ohio.
ECF 4, ¶¶ 26-41;1 Exhibit B, attached thereto.

Complaint,

Policy A identified as

insureds, inter alios, the following:

1

The original document filed in a state court action in the Court of Common
Pleas for Licking County that was removed to this Court is captioned

1

1.

You [Licking Baptist Church] are an insured.

2.
Your clergy and “executive officers” are insureds but
only with respect to their duties as such.
3.
Your directors, trustees, officials, elders, deacons,
vestry members, council members, and members of your board
of education are insureds but only with respect to their
duties as such.
*
*
*
*
5.
Your “employees,” other than your “executive
officers,” are insureds but only for acts within the scope
of their employment by you or while performing duties
related to the conduct of your business. However, none of
these “employees” is an insured for: [bodily injury,
personal injury or property damage under certain
circumstances].
Exhibit B, at PAGEID#:99.
On December 12, 2004, defendant issued Policy 063427-21-434174
for the period December 12, 2004 through December 12, 2007 (“Policy
B”) (Policy A and Policy B referred to collectively as “the policies”)
to Licking Baptist Church.
thereto.

Complaint, ¶¶ 42-58; Exhibit C, attached

Policy B provided in part that “any of [Licking Baptist

Church’s] officers, clergy, or employees are insureds but only with
respect to their duties as such.”

Exhibit C, at PAGEID#:247.

Lonnie J. Aleshire, Jr., (“Mr. Aleshire, Jr.”) was an associate
pastor of Licking Baptist Church in 2003 and 2004.

Complaint, ¶ 9.

Plaintiffs allege that, during his time as that church’s associate
pastor, Mr. Aleshire, Jr., perpetrated numerous incidents of sexual
misconduct on plaintiffs Sandra Cottrell and Jacquin Clifford.
¶¶ 13-18.

Id. at

On November 28, 2005, Mr. Aleshire, Jr., was found guilty

“Supplemental Complaint.”
Complaint.

This Court will refer to that pleading as the

2

on multiple criminal counts arising from these incidents.

Id. at ¶

20.
Thereafter, in 2007 and in 2010, plaintiffs filed two civil
actions in the Court of Common Pleas for Licking County (“the state
court”) apparently arising out of the criminal conduct of Mr.
Aleshire, Jr.

Id. at ¶ 1; Motion to Compel, p. 8.

Although

plaintiffs fail to provide the captions for both state court actions,
plaintiffs represent that “the underlying case initially filed in 2007
against Aleshire Jr., as well as Licking Baptist Church, and Mr.
Aleshire Sr. among others, turned upon whether Mr. Aleshire Jr. was
acting within the scope of his employment” (“the 2007 state court
action”) and that “Church Mutual insurance covered the defense of Mr.
Aleshire Jr., Licking Baptist Church, and Mr. Aleshire Sr.”
Compel, p. 8.

Motion to

See also Defendant Church Mutual Insurance Company’s

Response to Plaintiffs’ First Request for Production of Documents,
Request No. 6 (referring to Case No. 07CV589), attached as Exhibit 9
to Affidavit of Christian A. Preus in Support of Church Mutual’s
Memorandum Opposing Plaintiffs’ Motion to Compel and Motion for
Sanctions, ECF 44 (“First Preus Affidavit”).

More specifically,

defendant apparently secured the services of Al Mokhtari, Esq., to
represent Mr. Aleshire, Jr.; James Brudny, Jr., Esq., to represent
Licking Baptist Church; and Jeff Benedict, Esq., of Church Mutual to
represent Mr. Aleshire, Sr.

See Exhibit 9, attached to plaintiffs’

Reply Memorandum in Support of Combined Motion to Compel and Motion
for Sanctions, ECF 46 (“Reply to Motion to Compel”).

3

In the state court action filed in 2010, plaintiffs sued Mr.
Aleshire, Jr., “both in his individual capacity and as Associate
Pastor.”

Motion to Compel, p. 8.

See also Complaint, ¶ 1; Exhibit A,

attached thereto (referring to Jacquin Clifford, et al. v. Lonnie
Aleshire, Jr., Case No. 10CV933) (“2010 state court action”).
¶ 1.

Id. at

Licking Baptist Church and Mr. Aleshire, Sr., among others, were

also named as defendants in the 2010 state court action.

See Clifford

v. Licking Baptist Church, Licking County No. 09CA82, 2010-Ohio-1464
(5th App. Dist. Mar. 26, 2010).

In affirming the grant of summary

judgment in favor of, inter alios, defendants Licking Baptist Church
and Mr. Aleshire, Sr., in the 2010 state court action, the Ohio Court
of Appeals for the Fifth District, reasoned:
Assuming arguendo, that Lonny Aleshire, Jr. was an employee
and/or servant of Licking Baptist Church, we find that the
trial court did not err in granting summary judgment to
appellees Licking Baptist Church and Lonny Aleshire, Sr. on
the negligent supervision and retention claim. There is no
evidence that Lonny Aleshire, Jr.’s criminal intentional
self-serving acts facilitated or promoted the business of
either appellee Lonny Aleshire, Sr. or appellee Licking
Baptist Church. We concur with the trial court that he was
not acting within the scope of his employment with the
church, if any, when he engaged in sexual acts with minor
congregants. There is absolutely no evidence in the record
that appellee Licking Baptist Church encouraged or promoted
the sexual conduct or that appellee Licking Baptist Church
hired Lonny Aleshire, Jr. to rape or sexually molest church
members.
Id. at ¶ 65.
Following a jury trial in the 2010 state court action as against
Mr. Aleshire, Jr., the state court entered final judgment on August
31, 2012 against Mr. Aleshire, Jr., awarding plaintiffs $4.35 million
in damages for assault, battery, intentional infliction of emotional
distress, false imprisonment, and loss of consortium as well as
4

$51,354.37 in attorney’s fees (“the money judgment”).

Complaint, ¶¶

1, 21-25, 63, 76, 83; Exhibit A, attached thereto (Final Judgment
Entry).
The action presently before this Court was originally filed in
the Court of Common Pleas for Licking County, Jacquin Clifford fka
Cottrell, et al. v. Church Mutual Insurance Company, Case No.
13CV0736, seeking a declaratory judgment that the policies issued by
defendant cover the injury or loss allegedly caused by Mr. Aleshire,
Jr. (and as reflected in the money judgment).

See Complaint.

On

August 29, 2013, defendant removed the action to this Court as a
diversity action.

Notice of Removal, ECF 1.

Following a preliminary

pretrial conference conducted pursuant to Fed. R. Civ. P. 16(b), the
Court issued a scheduling order requiring, inter alia, that all
discovery be completed no later than June 1, 2014,2 and that
dispositive motions, if any, be filed by September 1, 2014.
Preliminary Pretrial Order, ECF 16, pp. 2-3.

On June 2, 2014, upon

plaintiffs’ motion, the deadline for completing discovery was extended
to August 1, 2014.

Opinion and Order, ECF 42.

Plaintiffs served their first set of interrogatories and requests
for production of documents on January 28, 2014.

Declaration of

Chelsea L. Berger, ¶ 2, attached as Exhibit 1 to Motion to Compel
(“First Berger Declaration”).

On March 3, 2014, defendant responded

to plaintiffs’ 36 requests for production of documents.

Id. at ¶ 3.

On about that same date, defendant served its answers to plaintiffs’
2

Because the discovery deadline of June 1, 2014 fell a Sunday, the cut-off
became June 2, 2014. Preliminary Pretrial Order, ECF 16, p. 3 (“If any date
set herein falls on a weekend or legal holiday, the date of the next business
day will control.”).

5

interrogatories.

Id. at ¶ 6.

Plaintiffs were dissatisfied with

defendant’s discovery responses, but the parties were unable to
resolve their dispute.
thereto.

Plaintiffs served a second set of discovery requests on

April 28, 2014.
thereto.

Id. at ¶¶ 4-9; Exhibits 2 and 3, attached

First Berger Declaration, ¶ 7; Exhibit 5, attached

“Many of these requests are very similar to Plaintiffs’

first requests.”

Motion to Compel, p. 4.

Again, the parties could

not agree on whether defendant should produce additional documents.
First Berger Declaration, ¶¶ 8-10; Exhibit 4, attached thereto.
On May 20, 2014, after conferring with counsel for the parties
regarding certain discovery issues, the Court issued the following
order:
Plaintiffs have requested the production of documents
relating to the issue of coverage (and in particular
whether Lonnie J. Aleshire, Jr., was an insured under the
policy), including documents generated in state court
litigation against Licking Baptist Church and/or Lonnie J.
Aleshire, Sr. Defendant contends that only those documents
generated in the state court litigation against Lonnie J.
Aleshire, Jr., - which have been produced - are relevant.
The Court concludes that the documents requested by
plaintiffs fall within the ambit of discoverable
information, see Fed. R. Civ. P. 26(b)(1), and that
defendant has not established that such discovery should be
limited under Fed. R. Civ. P. 26(b)(2)(C). Defendant must
therefore respond to plaintiffs’ requests in this regard.
Defendant must produce a privilege log, see Fed. R. Civ. P.
26(b)(5), should it conclude that any requested document is
properly withheld as privileged or work product.
Plaintiffs have also requested production of the
policy issued to Licking Baptist Church for the period
immediately prior to the periods at issue in this case, as
well as all documents relating to the coverage portion of
the policy or policies. Plaintiffs take the position that
such documents may assist in the proper construction of any
ambiguity in the coverage provisions of the applicable
policy or policies. Defendant contends that the discovery
requests in this regard either seek irrelevant information
or are over-broad. The Court concludes that plaintiffs are
6

entitled to the production of the policy issued to the
church for the period immediately prior to the period or
periods at issue in this case. Defendant must therefore
produce that policy to plaintiffs. The Court will not
require the production of other documents relating to the
coverage portion of that or any other policy unless
plaintiffs first articulate an area or areas of ambiguity
in the applicable policy or policies. In this event,
plaintiffs may request the production of documents relevant
to the specific area or areas of claimed ambiguity.
Order, ECF 35, pp. 1-2 (“Court’s May 20, 2014 Order”).
On June 2, 2014, plaintiffs served a third request for production
of documents.

Declaration of Chelsea L. Berger, ¶ 4 (“Second Berger

Declaration”), attached as Exhibit 1 to Reply to Motion to Compel.

On

the same day, plaintiffs filed the Motion to Compel, which defendant
later opposed and which is now ripe for resolution.

See Defendant

Church Mutual Insurance Company’s Memorandum Opposing Plaintiffs’
Motion to Compel Production of Documents and Responses to
Interrogatories and Motion for Sanctions Pursuant to Fed. R. Civ. P.
37(b)(2)(A), ECF 43 (“Defendant’s Response to Motion to Compel”);
Reply to Motion to Compel.
Also on June 2, 2014, defendant served its responses to
plaintiffs’ second set of discovery requests, but did not produce any
documents on that date.
attached thereto.

Second Berger Declaration, ¶ 6; Exhibit 7,

Later, on June 9, 2014, plaintiffs’ counsel

received a CD with discovery documents as well as a privilege log.
Second Berger Declaration, ¶ 7; Exhibit 8, attached thereto.

See also

First Preus Affidavit, ¶ 2 (averring that defendant “produced
documents responsive to the Court’s [May 20, 2014] order and the
privilege log itself on June 6, 2014.

Part of that production also

included the insurance policy issued by Church Mutual to Licking
7

Baptist Church for the policy period 1998 to 2001”).

Plaintiffs’

counsel received a second CD and another privilege log on June 16,
2014.

Second Berger Declaration, ¶ 8; Exhibits 5 and 8, attached

thereto; First Preus Affidavit, ¶ 3 (averring that claim file notes
and an accompanying privilege log were produced to plaintiffs on June
12, 20143).

In connection with defendant’s responses to discovery

requests and privilege logs, plaintiffs seek an order compelling
production of additional documents, in camera review of documents
designated as privileged and their fees associated with the filing of
the Motion to Compel.

Plaintiffs further ask the Court to strike a

filing related to defendant’s response to plaintiffs’ third set of
discovery requests.
II.

See Motion to Strike.

MOTION TO COMPEL AND MOTION TO STRIKE
A.

Standard for Motion to Compel

Rule 37 of the Federal Rules of Civil Procedure authorizes a
motion to compel discovery when a party fails to provide proper
response to requests for production of documents under Rule 34. Fed.
R. Civ. Pro. 37(a)(3)(B).

The proponent of a motion to compel “bears

the initial burden of proving that the information sought is
relevant.”

Guild Assocs. v. Bio-Energy (Wash.) LLC, No. 2:13-cv-1041,

2014 U.S. Dist. LEXIS 82990, at *37 (S.D. Ohio June 18, 2014).
Rule 26(b) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's

3

Plaintiffs contend that the letter accompanying the second privilege log was
dated June 13, 2014, and that the letter attached to the Preus Affidavit,
which is dated June 12, 2014, was not the one sent to plaintiffs. Reply to
Motion to Compel, p. 5 n.3 (citing Second Berger Affidavit, ¶ 8; Exhibit 5
attached thereto).

8

claim or defense." Fed. R. Civ. P. 26(b)(1).
purposes is extremely broad.
389, 402 (6th Cir. 1998).

Relevance for discovery

Lewis v. ACB Bus. Servs., Inc., 135 F.3d

“The scope of examination permitted under

Rule 26(b) is broader than that permitted at trial. The test is
whether the line of interrogation is reasonably calculated to lead to
the discovery of admissible evidence.”

Mellon v. Cooper-Jarrett,

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).
Finally, a party moving to compel discovery must certify that it
has “in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain
it without court action.”

Fed. R. Civ. P. 37(a)(1).

Over defendant’s

opposition, the Court concludes that this requirement has been met.
See generally First Berger Declaration and Second Berger Declaration.
B.

“The information relating to the issue of coverage,
including those relating to Licking Baptist Church and
Lonnie J. Aleshire, Sr.[,]” Motion to Compel, pp. 8-10
(Request Nos. 5-8, 11, 13, 18-21, 29, 39-48, 54-55 and
Interrogatory Nos. 14, 20-22)4

Plaintiffs first seek to compel response to Request for
Production of Documents Nos. 5-8, 11, 13, 18-21, 29, 39-48, and 54-55
4

Plaintiffs’ briefing of the Motion to Compel, mostly devoid of any quotations
from their discovery requests or defendant’s responses, is difficult to
follow. The Motion to Compel seeks several categories of documents that
cover dozens of requests for production of documents and interrogatories with
limited references as to whether those requests are part of a first, second
or third set of discovery served on defendant. See id. at 8-12. Plaintiffs
at times organize their motion by categories of requested information and at
other times organize by the number of each disputed discovery request. See
Motion to Compel, pp. 8-12. However, the Reply to Motion to Compel generally
addresses their “first set of discovery requests” and their “second set of
discovery requests,” id. at 7-8, before going on to address “Claims
Processing Guidelines” (which were not specifically discussed in the Motion
to Compel), specific discovery requests by number as well as their third
request for production of documents. Id. at 13-16. The record is further
complicated by overlapping - and new - arguments raised in the briefing of
the Motion for In Camera Review. The Court will therefore attempt to address
each category identified in the Motion to Compel.

9

as well as to Interrogatory Nos. 14 and 20-22, which apparently
“pertain to the facts listed in the Plaintiffs’ Complaint as well as
the claims and facts listed in the underlying [state court] cases,
such as documents relating to an evaluation, investigation, or risk
analysis of such facts and claims.”

Motion to Compel, p. 8.

Although

plaintiffs list multiple discovery requests under this general
category in the Motion to Compel, their argument focuses on why
information relating to defendant’s purported evaluation,
investigation, or risk analysis should be produced.

See id.

In their

reply brief, plaintiffs offer for the first time additional
substantive arguments as to why defendant’s responses and answers to
Request Nos. 20-21, 55 and Interrogatory Nos. 14, 20-21 (which seek
information beyond that related to an investigation) are deficient.
Reply to Motion to Compel, pp. 13-15.

However, this Court may

properly disregard arguments raised for the first time in a reply
brief.

Cf. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th

Cir. 2008).

See also Guild Assocs. v. Bio-Energy (Wash.) LLC, No.

2:13-cv-1041, 2014 U.S. Dist. LEXIS 82990, at *32 (S.D. Ohio June 18,
2014) (denying motion to compel to the extent that it raised new
arguments in the reply brief); Ross v. Choice Hotels Int’l, Inc., 882
F. Supp. 2d 951, 958 (S.D. Ohio 2012) (explaining that a reply brief
is not the proper place to raise issues for the first time and that
“the Court need not and will not consider [a party’s] new or newly
recast arguments”); Harris v. Advance Am. Cash Advance Ctrs., 288
F.R.D. 170, 176 (S.D. Ohio 2012) (denying motion to compel to the
extent the movant raises new issues for the first time in the reply
10

brief).

Accordingly, the Court will disregard any substantive

arguments raised for the first time in the reply brief when
considering the parties’ arguments as to Request for Production of
Documents Nos. 5-8, 11, 13, 18-21, 29, 39-48, and 54-55 as well as
Interrogatory Nos. 14 and 20-22.
Turning to the arguments in the Motion to Compel, plaintiffs
first represent that Request Nos. 5, 29, 39-48, and 54-55, and
Interrogatory Nos. 14 and 20-22 “request information that is
reasonably likely to lead to the discovery of admissible evidence
pertaining to the investigation and/or evaluation of the claims and
whether or not Aleshire, Jr. is an insured[.]”

Id. at 9-10.

According to plaintiffs, “[t]here is evidence already produced that
the defense of all three [Mr. Aleshire, Jr., Mr. Aleshire, Sr., and
Licking Baptist Church] were intertwined from the very beginning” and
that
it is not a far leap that when evaluating the claims
against Aleshire Sr. and Licking Baptist Church, Church
Mutual reviewed information relevant to this case, since a
crucial part of Mr. Aleshire Jr. being an insured, is not
only whether he was acting in the scope of his employment,
but also whether the acts occurred while he was performing
duties relating to the conduct of Licking Baptist Church.
Id.

Plaintiffs therefore contend that “if Church Mutual did an

evaluation, investigation, or risk analysis of the facts and claims as
they pertain to Licking Baptist Church or Mr. Aleshire Sr. in 07cv589
and/or corresponded with Licking Baptist Church or Aleshire Sr.
regarding the claims/facts,” then this information is relevant.
at 8-9.

Plaintiffs further argue that “the information reviewed

11

Id.

during a claim investigation, evaluation, or processing is not
privileged.”

Id. at 9.

In response, defendant first contends that the Court should deny
the Motion to Compel because it fails to comply with this Court’s
Local Rules.

Defendant’s Response to Motion to Compel, pp. 10-11.

Specifically, defendant argues that, although plaintiffs refer to
various document requests and interrogatories, their motion does not
quote any specific responses or answers and do not attach defendant’s
responses or answers as exhibits in contravention of S.D. Ohio Civ. R.
37.2, which requires parties to identify specific portions of
discovery documents reasonably necessary to resolve a motion.

Id.

Defendant represents that it responded to each request for production
of documents and interrogatory and that, because plaintiffs have
failed to identify how those responses are deficient, “it is unclear
on what grounds plaintiffs claim a motion to compel is warranted.”
Id.

Defendant next represents that it did not conduct any

“‘evaluation, investigation, or risk analysis’ of any facts or claims
related to Licking Baptist Church, Aleshire, Sr., or Aleshire, Jr.
There are no responsive documents and plaintiffs have known this for
months.”

Id. at 11-12.

See also id. at 6-7 (representing that it

“repeatedly” advised plaintiffs that “Church Mutual did not conduct an
independent investigation, evaluation, or analysis regarding insurance
coverage”) (citing First Preus Affidavit, ¶ 4; Exhibit 3, p. 2 (letter
dated June 20, 2014 from defense counsel to counsel for plaintiffs),
attached thereto).

As to plaintiffs’ assertion that Request Nos. 6-8,

11, 13, and 18-21 relate to the Court’s May 20, 2014 Order and that
12

defendant violated that Order, defendant contends that it produced
“another 22 additional documents from the claim file for Licking
Baptist Church/Aleshire, Sr., the 1998-2001 policy, and Church
Mutual’s claim notes” and two detailed privilege logs on June 6 and
12, 2014 in compliance with the Court’s May 20, 2014 Order.
12-13 (citing First Preus Declaration, ¶¶ 2-4).

Id. at

To the extent that

plaintiffs ask that defendant supplement its responses to plaintiffs’
first set of requests for production, defendant represents that
supplementation is unnecessary because such requests “all seek
documents that do not exist — such as those involving ‘investigation,
evaluation, or processing’ of the underlying lawsuits and claims and
reports or memorandums that were never created.”

Id. at 13 (citing

First Preus Declaration, ¶ 8, which refers to Exhibit 2, letter from
defense counsel dated April 4, 2014, addressing alleged deficiencies
in multiple discovery requests and representing, inter alia, that
“there are no additional documents”).
Plaintiffs insist that defendant’s representation in this regard
“is still unsettling given Defendant’s misunderstanding of what must
be produced under the Federal Rules, and given Defendant’s
contradictory statements” in Defendant’s Response to Motion to Compel.
Reply in Support of Motion to Compel, pp. 3-4.
As an initial matter, the Court agrees that plaintiffs have
failed to comply with the requirement that “specific portions of the
discovery documents reasonably necessary to a resolution of the motion
shall be included as an attachment.”

S.D. Ohio Civ. R. 37.2.

Plaintiffs have moved to compel response to more than three dozen
13

discovery requests but do not attach defendant’s allegedly deficient
responses to these disputed requests.

Plaintiffs argue that their

failure to attach the responses is justified because, inter alia,
their deficiency letter to defense counsel “was a necessary and more
useful attachment, as Plaintiffs had amended certain requests based on
correspondence with opposing counsel in an attempt to resolve
discovery issues.”

Reply to Motion to Compel, p. 7.

Plaintiffs,

however, have not otherwise identified which “certain requests” of the
many document requests and interrogatories at issue have been amended
or in what respect they may have been amended.

Instead, plaintiffs

apparently expect this Court to accept as true their assertion that
defendant’s response to the disputed discovery requests was inadequate
and/or to otherwise sift through the parties’ correspondence to
compare discussion of Request Nos. 5-8, 11, 13, 18-21, 29, 39-48, and
54-55 as well as Interrogatory Nos. 14 and 20-22, with the responses
and answers attached as exhibits by defendant.

This Court will not

undertake to cobble together information sufficient to resolve a
party’s motion when the moving party is unwilling to do so.

Cf.

Emerson v. Novartis Pharms. Corp., No. 09-6273, 446 F. App’x 733, at
*736 (6th Cir. Aug. 23, 2011).
In any event, plaintiffs concede that defendant has advised them,
and defendant has represented to this Court, that it conducted no
investigation.

See, e.g., Defendant’s Response to Motion to Compel,

pp. 3, 8, 11-12, 16; Exhibits 2, 3, 5, attached to First Preus
Affidavit.

Although plaintiffs refuse to trust defense counsel’s

representations to that effect, the record reflects no reason to doubt
14

defense counsel’s professional representation that there was no
“‘evaluation, investigation, or risk analysis’ of any facts or claims
related to Licking Baptist Church, Aleshire, Sr., or Aleshire, Jr.
There are no responsive documents[.]”

Defendant’s Response to Motion

to Compel, pp. 11-12.

The Court cannot compel the production of that

which does not exist.

To the extent that plaintiffs seek to compel

response or supplemental response to Request Nos. 5-8, 11, 13, 18-21,
29, 39-48, and 54-55 as well as supplemental answers to Interrogatory
Nos. 14 and 20-22, the Motion to Compel is therefore DENIED.5
C.

“The Policy issued to Licking Baptist Church for the period
immediately prior to the periods at issue in this case[,]”
Motion to Compel, p. 10 (Request No. 17)

Plaintiffs next seek an order compelling documents responsive to
Request No. 17, which they represent requests production of “the
policy” issued for the period immediately prior to the periods at
issue in this case.

Motion to Compel, p. 10.

After plaintiffs filed

the Motion to Compel, defendant produced this policy on June 6, 2014.
First Preus Declaration, ¶ 2 (averring, inter alia, that defendant
produced the insurance policy issued by defendant to Licking Baptist
Church for the policy period from 1998 to 2001).
to Compel does not appear to address this request.

The Reply to Motion
It therefore

appears that any dispute regarding this request has been resolved.
Accordingly, to the extent that plaintiffs seek production of the
policy issued to Licking Baptist Church prior to 2001 as articulated
in Request No. 17, the Motion to Compel is DENIED as moot.

5

To the extent that plaintiffs seek sanctions related to these and other
discovery requests, that issue will be addressed infra.

15

D.

Information related to defendant’s decision to pay for the
legal defense of Mr. Aleshire, Jr., Motion to Compel, pp.
10-11 (Interrogatory Nos. 17-19 and 23-24 and Request No.
56)

Plaintiffs represent that, “[i]n the first discovery conference
with this Court, this Court indicated that Plaintiffs’ Interrogatory
11 in their first set of Interrogatories requesting ‘the reason(s) why
Defendant assisted Aleshire Jr. in his legal defense by paying for his
legal expense.’ [sic] was a proper interrogatory.”
pp. 10-11.

Motion to Compel,

Plaintiffs characterize Interrogatory Nos. 17-19 and 23-24

as well as Request No. 56, as follow-up questions on this issue.
at 11.

Id.

Defendant represents, inter alia, that there are no documents

responsive to these requests; defendant also asserts that an earlier
deposition addressed the reason for its decision to fund Mr. Aleshire,
Jr.’s legal defense, i.e., to benefit its policyholder, Licking
Baptist Church.

Defendant’s Response to Motion to Compel, pp. 14-15

(citing to Exhibits 1 (deposition of John Brandon, pp. 33-35, 42-43,
taken on May 15, 2014), 7 (defendant’s answers to plaintiffs’ first
set of interrogatories), 8 (defendant’s answers to plaintiffs’ second
set of interrogatories), attached to First Preus Declaration).
Reply to Motion to Compel does not appear to address this issue.

The
It

therefore appears that the dispute regarding these discovery requests
has been resolved.

Accordingly, to the extent that plaintiffs seek

response or supplemental response to Interrogatory Nos. 17-19 and 2324 as well as Request No. 56, the Motion to Compel is DENIED as moot.

16

E.

Documents “relevant to how Aleshire Jr. falls under the
section of ‘Who is an Insured’ in the relevant insurance
policies,” Motion to Compel, p. 11 (Request Nos. 49-53)

In Request Nos. 49-53, plaintiffs seek documents regarding the
various categories of persons or entities included in “the section of
‘Who is an Insured’ in the relevant insurance policies.”
Compel, p. 11.

Motion to

Defendant represents that it has previously responded

to these requests and that there are no other nonprivileged and
responsive documents to be produced.

Defendant’s Response to Motion

to Compel, p. 15 (citing Defendant’s Response to Plaintiffs’ Second
Request for Production of Documents, ECF 41-5, PAGEID#:559PAGEID#:562).

Plaintiffs do not address this issue in their Reply to

Motion to Compel.

Nothing in the record persuades this Court to doubt

defense counsel’s professional representation.

As it relates to

Request Nos. 49-53, the Motion to Compel is DENIED.
F.

Documents relating to “the lawsuits against Aleshire Jr.,”
Motion to Compel, pp. 11-12 (Request No. 57)

Plaintiffs’ Document Request No. 57 seeks the production of
“documents that are not already in Plaintiffs’ possession or already
produced by either party relating to the lawsuits against Aleshire
Jr., such as pleadings, transcripts, discovery documents, motions,
briefs, exhibits, judgments, and trial documents etc.”

Motion to

Compel, p. 12 (citing Exhibit 5, attached thereto).6 Plaintiffs contend
that that “there are a few responsive documents that Plaintiffs do not
have in their possession, for example trial and deposition transcripts
that are costly and unduly burdensome to obtain, yet are relevant and

6

Exhibit 5 is a copy of plaintiffs’ second request for production of
documents; it does not contain defendant’s responses to these requests.

17

subject to production if they are in Defendant’s possession.”

Id. at

14. Plaintiffs ask that defendant produce any such documents in its
possession.
Defendant responded to this document request in pertinent part as
follows:
. . . Defendant has already produced a complete copy of its
claim filed regarding Plaintiffs’ claims against Lonnie
Aleshire, Jr., except for pleadings and other court
filings, which Plaintiffs have stated need not be produced.
Defendant’s Response to Plaintiffs’ Second Request for Production of
Documents, ECF 41-5, PAGEID#:564. Defendant does not expressly address
the request for production of deposition and trial transcripts.

It

appears, however, that defendant did not understand that plaintiffs
continue to seek the production of such transcripts.

See Exhibit 5 to

Reply to Motion to Compel, ECF 46-5, PAGEID#: 797 (“[I]t is our
understanding . . . that the plaintiffs are not asking for copies of
pleadings and other court filings regarding the underlying lawsuits .
. . .”).
If defendant is in possession of deposition and trial transcripts
generated in the underlying lawsuits, defendant must produce such
documents within ten (10) days.

To that extent, the Motion to Compel

is GRANTED.
G.

Plaintiffs’ Third Request for Production of Documents,
Reply to Motion to Compel, p. 15 (Request Nos. 58-68), and
Motion to Strike

Plaintiffs argue for the first time in their reply brief that
defendant’s responses to their third request for production of
documents contain improper objections and are generally deficient.
Reply to Motion to Compel, p. 15.

By way of background, defendant
18

attached several exhibits, including its response to plaintiffs’ third
request for production of documents, to its response to the Motion to
Compel. See Exhibit 10, attached to First Preus Affidavit.

Defendant

thereafter filed a “Notice,” ECF 48, which is represented to be a
“corrected” version of Exhibit 10. In their Motion to Strike,
plaintiffs argue that the proffered exhibit is not a true and accurate
copy of Exhibit 10.

Motion to Strike.

See also Exhibit 2, attached

to Reply to Motion to Compel (document characterized by plaintiffs as
the accurate version of defendant’s response to their third request
for production of documents).
Plaintiffs recognize that the Motion to Compel did not address
defendant’s responses to their third request for production of
documents but they contend, inter alia, that defendant has placed
their responses at issue and that defendant’s various versions of
their discovery responses establish that defendant is not engaging in
discovery in good faith.

Reply in Support of Motion to Strike, ECF

56, p. 2.
The merits of defendant’s responses to the third request for
production of documents are not properly before this Court.

The

Motion to Compel did not identify these responses as defective and
Defendant’s Response to Motion to Compel did not address the
sufficiency of these responses. This Court will not entertain
arguments raised for the first time in a reply brief.

See, e.g., Ross

v. Choice Hotels Int’l, Inc., 882 F. Supp. 2d 951, 958 (S.D. Ohio

19

2012); Harris v. Advance Am. Cash Advance Ctrs., 288 F.R.D. 170, 176
(S.D. Ohio 2012).7
To the extent that plaintiffs seek to compel responses to their
third request for production of documents, the Motion to Compel is
DENIED. The Motion to Strike is DENIED as moot.
H.

Sanctions

Both plaintiffs and defendant seek sanctions under Rule 37 in
connection with the filing and briefing of the Motion to Compel.
First, plaintiffs argue that monetary sanctions are appropriate under
Rule 37(b)(2)(A), which authorizes sanctions when a party fails “to
obey an order to provide or permit discovery.”
court may issue such orders as are just.

By this authority, a

Rule 37(b)(2)(A)(i)-(vii).

Plaintiffs also seek sanctions under Rule 37(b)(2)(C), which requires
a court to “order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including attorney’s
fees, caused by the failure [to comply with an order], unless the
failure was substantially justified or other circumstances make an
award of expenses unjust.”

A court has wide discretion in determining

an appropriate sanction under Rule 37.

See, e.g., Nat’l Hockey League

v. Metro. Hockey Club, 427 U.S. 639, 642-43 (1976); Cornette v.
Rousselle Corp., 647 F.2d 164, 164 (6th Cir. 1981).
Plaintiffs first argue that sanctions are warranted because
defendant failed to respond to discovery requests “relating to the

7

The Court recognizes that the dispute addressed for the first time in
plaintiffs’ reply brief arose only after the Motion to Compel was filed. The
proper course of action to be followed, if extrajudicial means of resolving
the dispute are unsuccessful, is to file a separate motion.

20

issue of coverage” and failed to produce a privilege log and the
policy issued to Licking Baptist Church for the period immediately
prior to the periods at issue in this case (Request No. 17), in
violation of the Court’s May 20, 2014 Order.
pp. 9-10.

Motion for Sanctions,

Defendant denies that it violated the Court’s Order,

pointing out that it produced 22 additional documents from the claim
file for Licking Baptist Church or Mr. Aleshire, Sr., the 1998-2001
policy and defendant’s claims notes.

Defendant’s Response to Motion

to Compel, pp. 12-13 (citing First Preus Declaration, ¶¶ 2-4).
Defendant also produced two separate privilege logs, totaling more
than 50 pages.

Id.

Defendant contends that these productions were

made on June 6 and 12, 2014 and “took a significant amount of time and
were completed as promptly as possible.”

Id.

Although the Motion to

Compel anticipated the production of responsive documents, defendant
complains that plaintiffs “never waited for Church Mutual’s responses
to their second set of requests for production, and did not wait for
Church Mutual’s production in response to the Court’s May 20, 2014
order.”

Id. at 13, 17.

In reply, plaintiffs insist that defendant’s production failed to
comply with the Court’s May 20, 2014 Order because it was made after
the discovery deadline of June 1, 2014.8 Reply to Motion to Compel, p.
5.

Plaintiffs did not withdraw the Motion to Compel after defendant’s

production, they explain, because they needed time to review the
sufficiency of the production.

Id.

8

Finally, plaintiffs complain that

On June 11, 2014, the Court extended the discovery completion deadline to
August 1, 2014. Opinion and Order, ECF 42.

21

defendant’s lack of professionalism and refusal to cooperate in
discovery has worked to their prejudice.

Id. at 4-6.

After carefully reviewing the record and the arguments of the
parties, this Court concludes that an award of sanctions against
defendant is unwarranted.

Except as it relates to the request for the

production of deposition and trial transcripts, see supra, the Court
has denied the Motion to Compel and, although some of defendant’s
responses were made after the original discovery completion date of
June 2, 2014, the production was made reasonably promptly after the
Court’s May 20, 2014 Order, which did not specify a different deadline
for the production.

Plaintiffs’ request for sanctions is therefore

not well-taken.
Defendant also seeks an award of sanctions under Rule
37(a)(5)(B).

When a discovery motion is denied, “the court may . . .

require the movant to pay the party or deponent who opposed the motion
its reasonable expenses incurred in opposing the motion, including
attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(B).

However, Rule 37 also

cautions that “the court must not order this payment if the motion was
substantially justified or other circumstances make an award of
expenses unjust.” Id.

“A motion is ‘substantially justified’ if it

raises an issue about which ‘there is a genuine dispute, or if
reasonable people could differ as to the appropriateness of the
contested action.’”

Doe v. Lexington-Fayette Urban County Gov’t, 407

F.3d 755, 766 (6th Cir. 2005) (citing Pierce v. Underwood, 487 U.S.
552, 565 (1988)).

Defendant argues that the Motion to Compel was not

substantially justified because plaintiffs filed the motion before
22

giving defendant a reasonable time to comply with the Court’s May 20,
2014 Order, refused to withdraw the motion even after defendant
advised plaintiff that the requested documents had already been
produced or did not exist, and failed to clearly identify the disputed
discovery responses or attach defendant’s responses to the Motion to
Compel.

Defendant’s Response to Motion to Compel, pp. 18-19.

This Court concludes that the Motion to Compel was substantially
justified notwithstanding the denial of most of the motion.

The

filing of the motion reflected plaintiffs’ apparent attempt to comply
with the Preliminary Pretrial Order, ECF 16, p. 2 (“Discovery-related
motions must be filed prior to the discovery completion date.”).
Moreover, and although plaintiffs’ failure to provide defendant’s
actual discovery responses unnecessarily complicated the resolution of
the Motion to Compel, that failure was not so egregious as to warrant
an award of sanctions.

Accordingly, defendant’s request for sanctions

is not well-taken.
III. MOTION FOR IN CAMERA REVIEW
As noted supra, defendant has already produced to plaintiffs the
entire claims file related to Mr. Aleshire, Jr.

The Court’s May 20,

2014 Order required the production of “documents related to the issue
of coverage (and in particular whether Lonnie J. Aleshire, Jr., was an
insured under that policy), including documents generated in state
court litigation against Licking Baptist Church and/or Lonnie J.
Aleshire, Sr.” Id. at 1.

Defendant produced certain documents

pursuant to that order, as well as two privilege logs, Exhibit 8,
PAGEID#:802- PAGEID#:847 (“First Privilege Log”), PAGEID#:84823

PAGEID#:855 (“Supplemental Privilege Log”), attached to Plaintiffs’
Reply to Motion to Compel.

Defendant invokes the protection of the

attorney client privilege the work product doctrine for each document
listed in the privilege logs.

See generally id.

Plaintiffs now move

for an order requiring defendant to produce unredacted documents
identified in defendant’s privilege logs to the Court for an in camera
review.

Defendant opposes the Motion for In Camera Review, Defendant

Church Mutual Insurance Company’s Memorandum in Opposition to
Plaintiffs’ Motion for In Camera Review, ECF 51 (“Defendant’s
Opposition to Motion for In Camera Review”), and plaintiffs’ Reply
Memorandum in Support of Motion for In Camera Review, ECF 57 (“Reply
to Motion for In Camera Review”), has been filed.
A.

Standard

“Before the movant is entitled to an in camera inspection of
documents, he must show a reasonable probability that they contain
relevant evidence.”
(S.D. Ohio 2010).

Ridenour v. Collins, 692 F. Supp. 2d 827, 831
In addition, plaintiffs, as movants, “must make a

factual showing adequate to support a good faith belief that the
review will uncover unprivileged documents.”

Konica Minolta Bus.

Solutions, USA, Inc. v. Allied Office Prods., Inc., No. 2:06-cv-71,
2010 U.S. Dist. LEXIS 50151, at *7 (S.D. Ohio Apr. 29, 2010).
“Groundless fishing expeditions should not be permitted.”

Williams v.

Duke Energy Corp., No. 1:08-cv-00046, 2014 U.S. Dist. LEXIS 109835, at
*19 (S.D. Ohio Aug. 8, 2014) (citing United States v. Zolin, 491 U.S.
554, 571 (1989)).

24

B.

Discussion

The parties disagree whether the withheld documents are relevant.
Plaintiffs hope to discover in defendant’s files relating to Licking
Baptist Church and Mr. Aleshire, Sr., documents addressing the issue
of coverage of Mr. Aleshire, Jr., as an insured under the policies.
Motion for In Camera Review, pp. 6-8.

Plaintiffs also argue that this

Court determined that the withheld information is relevant when it
ordered defendant to produce additional information on May 20, 2014.
Id. at 2-3; Reply to Motion for In Camera Review, p. 2 (citing the
Court’s May 20, 2014 Order).

Characterizing the coverage issues as

“not necessarily clear and straightforward,” plaintiffs argue that the
withheld documents “could contain facts that the Plaintiffs do not
already have that can be used in applying the policies to determine
coverage.”

Reply to Motion for In Camera Review, pp. 2-3.

Defendant

disagrees, contending that neither it nor coverage counsel performed
any investigation.

Defendant’s Opposition to Motion for In Camera

Review, pp. 2, 13.

Defendant further argues that, other than “four

such documents” (documents authored by Attorney John Brandon and sent
to coverage counsel), the withheld information is unrelated to and
irrelevant to the insurance coverage issue in this case.

Id. at 5-7,

12-13, n.2 (citing Exhibit 5, PAGEID#:796, attached to Reply to Motion
to Compel).
After carefully considering the record and the arguments of
counsel, the Court concludes that plaintiffs have failed to establish
the relevance of most of the withheld documents.

First, as discussed

supra in relation to the Motion to Compel, this Court has no reason to
25

doubt defense counsel’s professional representation that no
investigation was conducted.

Therefore, to the extent that plaintiffs

argue that the withheld documents are relevant because they might
contain information regarding an investigation, that argument is not
well-taken.
Next, this Court disagrees that the Court’s May 20, 2014 Order
definitively determined that every document to be produced pursuant to
that Order is relevant to the issue of coverage.

Defendant was

ordered to produce certain documents requested by plaintiffs, namely,
“documents relating to the issue of coverage (and in particular
whether Lonnie J. Aleshire, Jr., was an insured under the policy),
including documents generated in state court litigation against
Licking Baptist Church and/or Lonnie J. Aleshire, Sr.”
20, 2014 Order, p. 1.

Court’s May

Defendant thereafter produced, inter alia, 22

additional documents from the claim file for Licking Baptist
Church/Aleshire, Sr., Church Mutual’s claim notes and two privilege
logs.

See, e.g., First Preus Declaration, ¶¶ 2-4.

In a letter dated

June 13, 2014, defendant advised that the defense of Licking Baptist
Church, Mr. Aleshire, Sr., and Mr. Aleshire, Jr., did not consider
insurance coverage issues and, therefore, the redacted notes and
communications were unrelated to coverage:
Church Mutual handled insurance coverage issues separately,
through separate claim handlers and separate coverage
counsel. In this regard, you have deposed John Brandon,
who was the coverage handler. Because defense counsel for
Licking Baptist Church and Lonnie Aleshire, Sr. did not
handle any insurance coverage matters, none of the notes
and communications that have been redacted relate to
matters of insurance coverage. . . . That is also the case
with respect to Mr. Mokhtari’s representation of Lonnie
Aleshire, Jr. He did not handle any matters of insurance
26

coverage, as reflected in his communications that have been
produced.
Church Mutual has now produced the entire claim file
regarding plaintiffs’ claims in the underlying lawsuits
against Lonnie Aleshire, Jr. and Church Mutual’s entire
claim file, including claim notes, regarding plaintiff’s
claims against Licking Baptist Church and Lonnie Aleshire,
Sr., except reda[c]ted information that is subject to the
attorney-client privilege and attorney work product. . . .
As we have previously advised, and as Mr. Brandon
testified, Church Mutual did not conduct any independent
investigation regarding insurance coverage issues relating
to Lonnie Aleshire, Jr. As Mr. Brandon explained, the
coverage determination was made based upon an analysis of
the allegations in the complaints against Lonnie Aleshire,
Jr. and the insurance policy. . . . Accordingly, there are
no other documents in existence that relate to issues of
coverage relating to plaintiffs’ claims and plaintiffs’
judgment against Lonnie Aleshire, Jr.
Exhibit 5, PAGEID#:796- PAGEID#:797 (noting further that Mr. Brandon’s
entries in the claim notes have been redacted “for matters covered by
the attorney-client privilege and work product”), attached to Reply to
Motion to Compel.

See also Defendant’s Response to Motion to Compel,

pp. 6-7, 11-12 (representing that Church Mutual conducted no
investigation, evaluation or analysis regarding insurance coverage).
In short, defendant represents that only four of the withheld
documents, which are documents authored by Mr. Brandon, Church
Mutual’s coverage claim handler, and sent to coverage counsel, relate
to coverage.

Defendant’s Opposition to Motion for In Camera Review,

p. 13 n.2; Exhibit 5, PAGEID#:796, attached to Reply to Motion to
Compel.

Plaintiff has offered no reason to doubt defense counsel’s

professional representation in this regard.

27

Accordingly, other than

the documents authored by Mr. Brandon,9 plaintiff has failed to
establish the relevance of the documents reflected on the privilege
logs.
Defendant described the four withheld documents authored by Mr.
Brandon as “Communications with coverage counsel, Christian Preus,”
and withheld those documents as protected by the attorney client
privilege and the work product doctrine. Supplemental Privilege Log,
PAGEID#:854- PAGEID#:855. The parties agree that Ohio law governs the
substantive issue of privilege, see Fed. R. Evid. 501, and that
federal law, see Fed. R. Civ. 26(b)(3), governs the procedural issue
of work product. See, e.g., Motion for In Camera Review, pp. 4-6;
Defendant’s Opposition to Motion for In Camera Review, pp. 11-13. See
also In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir.
2006) (“In a diversity case, the Court applies federal law resolve
work product claims and state law to resolve attorney-client
claims.”).
“‘In Ohio, the attorney-client privilege is governed by statute,
R.C. 2317.02(A), and in cases that are not addressed in R.C.
2317.02(A), by common law.’”

State ex rel. Toledo Blade Co. v.

Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 541 (2009) (quoting
State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261,
264 (2005)).

Section 2317.02(A) is simply a testimonial privilege

that prevents an attorney from testifying about confidential

9

Although neither party has cited to the relevant portion of either of the
privilege logs reflecting these documents, the Court notes that the
Supplemental Privilege Log presumably reflects these four documents, which
are Bates-stamped CMIC000908, CMIC000909, CMIC000911 and CMIC000913, authored
by Mr. Brandon. See Supplemental Privilege Log, PAGEID#:854-PAGEID#:855.

28

communications.

Id.

“The common-law attorney-client privilege,

however, ‘reaches far beyond a proscription against testimonial
speech.

The privilege protects against any dissemination of

information obtained in the confidential relationship.’”
Ohio Hous. Fin. Agency, 105 Ohio St.3d at 266.

Id. (quoting

See also State ex.

rel. Dawson v. Bloom-Carroll Local Sch. Dist., 131 Ohio St. 3d 10, 15
(2011) (same).
The parties seem to agree that communications between an
insurance company and outside counsel retained to provide legal advice
regarding coverage, rather than to perform routine claims adjustment,
enjoy the protection offered by the attorney-client privilege. See,
e.g., Motion for In Camera Review, p. 4 (“Plaintiffs believe that
there is evidence sufficient to support a reasonable belief that in
camera review may yield documents and information that are not
actually privileged.”). In moving for in camera review, however,
plaintiffs argue that it is “impossible to tell if the communications
between the claims handler and coverage counsel were solely for the
purpose of obtaining legal advice regarding coverage, rather than to
perform routine claims functions.”

Id. at 6. As noted supra, and

plaintiffs’ suspicions notwithstanding, plaintiffs have offered no
reason to doubt defense counsel’s professional representation that
there was no independent investigation of the issue of insurance
coverage. Under these circumstances, the Court declines to order an in
camera review of these documents.

29

WHEREUPON, Plaintiffs’ Motion to Compel Production of Documents
and Responses to Interrogatories and Motion for Sanctions Pursuant to
Fed. R. Civ. P. 37(b)(2)(a), ECF 40, is GRANTED in part. Defendant is
ORDERED to produce, within ten (10) days, any deposition or trial
transcripts generated in the underlying litigation that defendant
holds in its possession or control. In all other respects, the motion
is DENIED.

Plaintiffs’ request for sanctions is DENIED. Defendant’s

request for sanctions pursuant to Rule 37(a)(5)(B), see Defendant
Church Mutual Insurance Company’s Memorandum Opposing Plaintiffs’
Motion to Compel Production of Documents and Responses to
Interrogatories and Motion for Sanctions Pursuant to Fed. R. Civ. P.
37(b)(2)(A), ECF 43, pp. 17-19, is likewise DENIED.

Plaintiffs’

Motion for In Camera Review, ECF 47, is DENIED. Plaintiff’s Motion to
Strike Defendant’s “Notice” Filed on July 10, 2014, ECF 49, is DENIED.

October 21, 2014

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

30