Hoskins Oil Company, LLC v. Equilon Enterprises LLC et al (JRG1)

Filing 246

MEMORANDUM AND ORDER: Plaintiff's Objection and Motion in Limine to Defendants' Deposition Designations [Doc. 163] is GRANTED; Defendants' Motions in Limine [Docs. 164, 169, 170, 171, 181, and 185] are GRANTED; Defend ants' Motions in Limine [Docs. 165, 166 and 178] are DENIED; Defendants' Motions in Limine [Docs. 167, 172, 173, 177, 179, and 184] are DENIED AS MOOT; Defendants' Motions in Limine [Docs. 176, 183, and 186] are DENIED WITHOUT PREJUDI CE; Plaintiff's Objection to Defendants' Proposed Exhibits [Doc. 189] is DENIED WITHOUT PREJUDICE; and Plaintiff's Motion in Limine and Objections to Defendants' Deposition Designation [Doc. 190] is DENIED AS MOOT. Signed by Magistrate Judge Debra C Poplin on April 9, 2019. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
HOSKINS OIL COMPANY, LLC,
Plaintiff,
v.
EQUILON ENTERPRISES, LLC d/b/a
SHELL OIL PRODUCTS US, et al.,
Defendants.

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No. 3:16-CV-417-JRG-DCP

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
The parties appeared before the Court on January 17, 2019, for a motion hearing on the
parties’ Motions in Limine [Docs. 163, 164, 165, 166, 167, 169, 170, 171, 172, 173, 176, 177, 178,
179, 181, 183, 184, 185, 186, and 190]. In addition, Plaintiff filed objections [Doc. 189] to
Defendants’ Exhibit List. Attorneys Broderick Young and Paul Wehmeier appeared on behalf of
Plaintiff. Attorneys David Harris, Tali Katz, and Dean Howell appeared on behalf of Defendants.
As an initial matter, the parties agreed during the hearing that the following Motions were
moot: [Docs. 167, 172, 173, 177, 179, and 184]. Accordingly, the Court hereby DENIES AS
MOOT these Motions in Limine [Docs. 167, 172, 173, 177, 179, and 184].1
The Court will now turn to the remaining Motions in Limine and address them in the order
in which they were filed.

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The Court notes that both parties agreed that if the other party opened the door at trial for
evidence that is subject to a Motion in Limine, the other party would be allowed to ask questions
relating to the evidence that is subject to each Motion.

I.

ANALYSIS
The Court has considered the parties’ filings, along with the oral arguments presented at

the January 17 hearing. Accordingly, the Court finds as follows:
A.

Plaintiff’s Objection and Motion in Limine to Defendants’ Deposition
Designations of Wes Carruthers [Doc. 163]

Plaintiff objects to Defendants’ attempt to offer the deposition testimony of Wes Carruthers
(“Carruthers”). Plaintiff argues that Carruthers does not qualify as a witness who may testify by
deposition designation under Federal Rules of Civil Procedure 32(a)(3) or (4). Plaintiff states that
Carruthers is not a party to this lawsuit and has not been established as unavailable. Further,
Plaintiff argues that it was not provided with the actual deposition excerpts that Defendants seek
to offer into evidence.
Defendants assert that Plaintiff took the deposition of Carruthers as the Rule 30(b)(6)
representative for Downey Oil Company, Inc. (“Downey Oil”). Defendants cite Rule 32(a)(3) in
support of their position that they may rely on his deposition testimony. Further, they assert that
they will not submit Carruthers’s deposition testimony, unless the Court denies their Motion in
Limine Number 5 and Plaintiff introduces evidence that Defendants improperly contacted other
wholesalers. Finally, Defendants argue that it is not their responsibility to provide Plaintiff with a
copy of deposition transcripts.
Rule 32(a)(3) provides that “[a]n adverse party may use for any purpose the deposition of
a party or anyone who, when deposed, was the party’s officer, director, managing agent, or
designee under Rule 30(b)(6) or 31(a)(4).” In the present matter, Carruthers testified on behalf of
Downey Oil when it was a defendant in this matter. The Court finds that Carruthers is not an
adverse witness to Defendants, and therefore, using his deposition testimony pursuant to Rule
32(a)(3) is impermissible. At the hearing, Defendants argued that Carruthers could be adverse
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because Defendants could have blamed each other for the alleged violations.

Defendants

acknowledged, however, that Downey Oil did not take this position. Defendants also stated that
Carruthers has a health condition that may prevent his attendance at trial. Without more, this
conclusionary statement does not establish that he is unavailable under Rule 32(a)(4).
Accordingly, Plaintiff’s Objection and Motion in Limine to Defendant’s Deposition Designations
of Wes Carruthers [Doc. 163] is GRANTED.

B.

Defendants’ Motion in Limine Number 1 [Doc. 164]

Defendants seek to exclude argument or testimony relating to Plaintiff’s unearned incentive
money. Defendants state that if Plaintiff met its monthly minimum, Defendants agreed to pay
Plaintiff incentive money. Defendants argue that Plaintiff failed to meet the monthly fuel
minimum, and therefore, Defendants withheld the incentive money. Defendants argue that any
testimony or argument relating to unearned incentive money is irrelevant. Plaintiff asserts that
Defendants’ obligation to pay Plaintiff incentive money was predicated on meeting the minimum
gallon requirements under the Wholesale Marketing Agreements (“WMAs”) and Border
Agreement.

Plaintiff argues that to the extent the WMAs and Border Agreement were

unreasonable and not in good faith with respect to the termination, the same provisions also
resulted in Defendants’ failure to pay Plaintiff incentive money. Plaintiff argues that this failure
results in damages.
At the hearing, Defendants argued that unearned incentives are performance damages and
that the Petroleum Marketing Practices Act (“PMPA”) is not a vehicle for such damages. Further,
Defendants argued that Plaintiff never disclosed unearned incentives as part of its damages during
discovery in this case. Specifically, Defendants explained that Plaintiffs did not identify such

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damages in its initial disclosures or in response to the interrogatories, and Plaintiff did not
supplement its discovery responses to include unearned incentives as part of its damages.
Plaintiff objected to Defendants’ argument that it did not disclose such damages, stating
that Defendants’ argument is outside the basis of the Motion. Further, Plaintiff responded that it
included such damages in its trial plan and that the amount was identified during the deposition of
Manuel Payan, Defendants’ employee, which occurred in the summer.
The Court has considered Defendants’ oral argument that damages for unearned incentives
were not previously disclosed because it was made in reply to Plaintiff’s written response to the
Motion. Further, both parties had sufficient time to argue their positions at the motion hearing.
The Court finds that testimony or argument relating to unearned incentives is not relevant to
whether Defendants violated the PMPA by terminating the parties’ agreements because Plaintiff
allegedly did not meet the annual minimum gallon requirement. Further, the Court finds that
Plaintiff cannot now claim unearned incentives as part of its damages because it never
supplemented its initial disclosures or responses to interrogatories to identify such damages to put
Defendants on notice that unearned incentives were part of its damages claim. See Fed. R. Civ. P.
37(c). Plaintiff acknowledged that it learned the amount of the unearned incentives in the summer,
but Plaintiff did not supplement discovery and only included such damages in its trial plan. The
Court finds it unfair to allow Plaintiff to claim such damages this late in the litigation.
Accordingly, the Court finds Defendants’ Motion in Limine Number 1 [Doc. 164] well taken, and
it is GRANTED.
C.

Defendants’ Motion in Limine Number 2 [Doc. 165]

Defendants seek to exclude argument or testimony with respect to requiring Plaintiff to
repay $70,000 in recapture money as a result of selling one of its retail locations in 2013.

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Defendants argue that such testimony is irrelevant and will likely confuse the issues and mislead
the jury. Plaintiff intends to argue that the circumstances surrounding the demand for the recapture
money and the payment for the recapture, which was made in September 2013 and a prerequisite
to obtaining the SOPUS WMA and Border Agreement, is evidence that the minimum gallon
provision was unreasonable and not in good faith. Plaintiff argues that Defendants began setting
obstacles to inhibit Plaintiff in receiving the SOPUS WMA and Border Agreement and that one of
those obstacles was the immediate repayment of capture money, which Defendants claimed that
Plaintiff owed.
At the hearing, Plaintiff argued that it did not dispute that the recapture money was due.
Plaintiff insisted, however, that the demand for the recapture money was another obstacle in
obtaining the agreements at issue. Defendants argued that the recapture money is irrelevant to the
6.75 million annual minimum gallon requirement contained in the parties’ agreements.
The Court declines to exclude evidence or argument relating to the requirement that
Plaintiff pay $70,000 in recapture money. Defendants have acknowledged that Plaintiff had to
pay $70,000 in recapture money that it owed Defendant Motiva Enterprises, LLC, as a condition
to the parties entering into the agreements. See [Doc. 219 at 7]. Thus, the Court finds such
evidence necessary background information. Further, Plaintiff has argued that Defendants created
obstacles in order to delay the execution of the parties’ agreement in order to limit the contributions
from Red Hed Oil Company (“Red Hed”). Whether Red Hed’s contributions should have counted
towards Plaintiff’s minimum gallon requirement is a central issue in this case. Accordingly,
Defendants’ Motion in Limine Number 2 [Doc. 165] is DENIED.

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D.

Defendants’ Motion in Limine Number 3 [Doc. 166]

Defendants request that the Court exclude any argument or testimony that Plaintiff
transferred locations to Lykins Oil in 2010 because Plaintiff believed that it would get a SOPUS
WMA and the Border Agreement. Defendants assert that such testimony or argument is irrelevant,
unreliable, and likely to confuse the issues and mislead the jury. Plaintiff asserts that prohibiting
such argument or testimony would remove necessary context and explanation as to why Plaintiff
felt it was entitled to the SOPUS WMA and Border Agreement. In addition, Plaintiff states that it
was Defendants’ failure to meaningfully follow through on the original 2009 promise that led to
Paul Stanifer’s directive to allow the sub-jobber requirements to count towards Plaintiff’s
minimum gallon requirements.
At this time, the Court will not exclude any argument or testimony that Plaintiff transferred
locations to Lykins Oil in 2010 as such information is necessary background information to show
what led the parties to agree to the WMAs and the Border Agreement, especially in light of the
ambiguities of such documents as explained by the District Judge in the Memorandum Opinion
and Order [Doc. 227]. Further, Plaintiff alleges that such actions led to the directive to allow the
sub-jobber requirements to count toward Plaintiff’s minimum gallon requirements—a primary
issue in this case. The Court finds that such evidence is necessary background information, and
Defendants’ Motion in Limine Number 4 [Doc. 166] is DENIED. If such arguments or evidence
stray from necessary background information, Defendants may object at trial.
E.

Defendants’ Motion in Limine Number 6 [Doc. 169]

Defendants request that the Court exclude any argument or testimony that they put Plaintiff
on allocation. Defendants assert that such evidence is factually incorrect, irrelevant, and will
confuse or mislead the jury. Plaintiff responds that it will only discuss this issue to the extent

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Defendants attempt to rely on supply disruptions or fuel rationing as an explanation for their failure
to provide Plaintiff with the fuel that it required and was entitled to in good faith.
At the hearing, Plaintiff also argued that evidence with respect to the allocation of fuel also
shows Defendants’ motive in treating Plaintiff differently. Plaintiff stated that if Defendants
cannot show that credit prevented Plaintiff from receiving fuel or that there was a supply
disruption, then there is an inference that Defendants placed Plaintiff on allocation in order to hurt
Plaintiff. Plaintiff argued that such evidence is, therefore, relevant.
As stated at the hearing, the crucial issue in this case is whether Plaintiff failed to meet its
minimum gallon requirement because Defendants did not count the contribution from Red Hed.
Plaintiff asserts that the parties intended to count Red Hed’s contribution, and Defendants insist
otherwise. The Court finds that given the issue in this case, evidence relating to allocation is not
relevant to whether Red Hed’s contribution should have been counted towards Plaintiff’s annual
minimum gallon requirements. Accordingly, the Court GRANTS Defendants’ Motion in Limine
Number 6 [Doc. 169].
F.

Defendants’ Motion in Limine Number 7 [Doc. 170]

Defendants request that the Court preclude argument or testimony regarding their
temporary retention of Plaintiff’s credit card funds. Defendants assert that such evidence is
irrelevant, likely to confuse or mislead the jury, and its probative value is substantially outweighed
by the danger of unfair prejudice to Defendants.

Further, Defendants assert that Plaintiff

abandoned this theory by not addressing it in response to Defendants’ motion for summary
judgment. Plaintiff states that it has made a claim for exemplary damages and that it must show
that Defendants willfully disregarded the requirements in the PMPA or the rights of the franchisee
under the PMPA. Plaintiff submits that Defendants’ actions of holding credit card funds for an

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extended period of time after the termination date shows that Defendants’ business actions
regarding Plaintiff were willful.
The Court agrees with Defendants that any argument or evidence relating to the temporary
retention of Plaintiff’s credit card funds is irrelevant. Defendants’ retention of Plaintiff’s credit
card funds occurred after Defendants terminated their agreements with Plaintiff.

Thus,

Defendants’ retention of Plaintiff’s credit card funds is irrelevant to whether Defendants’
termination was permitted by the PMPA or whether Defendants’ alleged violation was willful. See
Eden v. Amoco Oil Co., Inc., 741 F. Supp. 1192, 1195 (D. Md. 1990) (defining “willful disregard”
as the franchisor knowing “its conduct was prohibited by the PMPA or if the franchisor acted with
plain indifference to its prohibitions” and does not “encompass a requirement of showing
maliciousness in motive”).2 Accordingly, the Court GRANTS Defendants’ Motion in Limine
Number 7 [Doc. 170].
G.

Defendants’ Motion in Limine Number 8 [Doc. 171]

Defendants request that the Court exclude evidence or argument relating to Defendants’
preference for larger wholesalers or that Defendants sought to eliminate smaller wholesalers.
Defendants state that the Court has already determined that such evidence is irrelevant. In addition,
Defendants assert that such evidence would confuse or mislead the jury. Plaintiff responds that it
previously cited the Court to authority wherein summary judgment was denied because the court
determined that questions of material fact existed as to whether defendant’s decision to use larger
stations could cause defendant to set the minimum requirement at a larger number than plaintiff
could sell. In the alternative, Plaintiff states that if the Court finds that such evidence is not part

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The Court observes that pursuant to the PMPA, “The question of whether to award
exemplary damages and the amount of any such award shall be determined by the court and not
by a jury.” 15 U.S.C. § 2805.
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of the claims, the evidence supports the explanation for why Defendants would include an
unreasonable and bad-faith material provision in the WMAs and the Border Agreement. Plaintiff
points to several comments made by Defendants’ employees, arguing that such comments
highlight the animus toward Plaintiff as a small oil business.
The Court acknowledges that in the summary judgment filings, Plaintiff argued that the
6.75 million annual minimum gallon requirement set out in the WMAs was unreasonable. The
District Judge found “that the annual minimum gallon requirements in the Motiva and SOPUS
WMAs were reasonable and of material significance to the franchise relations.” [Doc. 227 at 12].
Thus, Plaintiff’s evidence that Defendants preferred larger wholesalers is irrelevant given that the
District Judge has determined that the 6.75 million annual minimum gallon requirement was
reasonable.
In the alternative, Plaintiff argues that even if an ulterior motive is not a violation of PMPA,
such evidence shows that Defendants preferred larger wholesalers and had a negative opinion
based on Plaintiff’s size and serves as an explanation as to why Defendants included an
unreasonable and bad-faith provision. In this case, the primary issue is whether the parties
intended to count Red Hed’s contribution towards Plaintiff’s requirement. Plaintiff insists that the
parties intended to count Red Hed’s contribution, and Defendants argue otherwise. The Court
finds Defendants’ alleged preference for larger wholesalers irrelevant. Here, the parties must
establish what they did, or did not, agree to and whether Defendants properly applied the
agreement as the parties intended. The underlying motive, or any evidence as to why Defendants
failed to apply the agreement in the manner the parties intended, is not helpful to the jury in
determining whether Defendants misapplied the parties’ agreement. Further, the Court finds that
the probative value, if any, of such evidence is outweighed by the danger of unfair prejudice and

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confusion of the issues in this case. Plaintiff argues that it must establish that Defendants’ actions
were willful in order to obtain exemplary damages. As explained above, however, establishing a
willful violation does not mean Plaintiff must show that Defendants acted with a bad motive. See
Eden, Co., 741 F. Supp. at 1195 (“As used in the [PMPA], . . . willfulness does not encompass a
requirement of showing maliciousness in motive.”). Accordingly, Defendants’ Motion in Limine
Number 8 [Doc. 171] is GRANTED.
H.

Defendants’ Motion in Limine Number 12 [Doc. 176]

Defendants request that the Court prohibit Plaintiff from introducing or testifying as to any
document or email of which Plaintiff was not the author, sender, or recipient. During the hearing,
the Court proposed that the parties meet and confer to narrow such objections. Further, the Court
observed that Defendants speculated as to how Plaintiff intends to use the documents that were
objected to and that many objections are more appropriate to raise at trial. The parties agreed to
the Court’s proposal to attempt to resolve many of the objections. Accordingly, Defendants’
Motion in Limine Number 12 [Doc. 176] is DENIED WITHOUT PREJUDICE. Any remaining
objections that the parties cannot resolve may be made during the trial.
I.

Defendants’ Motion in Limine Number 15 [Doc. 178]

Defendants request that the Court exclude Exhibits 2 and 13, which are Defendants’
internal emails from 2009 that discuss retail locations that Plaintiff eventually transferred to Lykins
Oil. Accordingly, for the same reasons the Court denied Defendants’ Motion in Limine [Doc.
166], the Court DENIES Defendants’ Motion in Limine Number 15 [Doc. 178].
J.

Defendants’ Motion in Limine Number 17 [Doc. 181]

Defendants request exclusion of Plaintiff’s Exhibit 55, which is an internal SOPUS/Motiva
email discussing a proposed incentives agreement between Coffman Oil and Woodson’s Shell, a

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retail outlet that was transferred from Plaintiff to Coffman Oil in April 2015. Defendants rely on
their argument that was raised in their Motion in Limine [Doc. 164]. In addition, Defendants assert
that even if Plaintiff’s unearned incentives were deemed relevant, the email relates to a proposed
incentive agreement between Coffman Oil and Woodson’s Shell station, and therefore, not
relevant to Plaintiff’s PMPA claim.

Plaintiff states that the email references the fact that

Defendants did not pay Plaintiff incentives because Plaintiff was allegedly behind on its annual
fuel requirements. Plaintiff states that unearned incentives are part of its damages.
Accordingly, for the same reasons the Court granted Defendants’ Motion in Limine [Doc.
164], the Court GRANTS Defendants’ Motion in Limine Number 17 [Doc. 181]. Further, the
Court agrees with Defendants that while the emails reference Plaintiff, the primary matter
discussed in the emails relate to an agreement with another company, which is not relevant to
Plaintiff’s claim.
K.

Defendants’ Motion in Limine Number 18 [Doc. 183]

Defendants request that the Court exclude Exhibit 67, which is a letter from Alexander
Fassas, the president of Red Hed, to Jeff Hoskins. Defendants assert that the letter is irrelevant, it
constitutes inadmissible hearsay, it is unreliable, and it is likely to confuse the issues and mislead
the jury. Further, Defendants argue that the Court should prohibit Fassas from testifying as to any
statements by others contained in the letter that independently constitute inadmissible hearsay.
Plaintiff responds that it intends to call Fassas as a witness during its case in chief and that Fassas
may be prohibited from referring to statements by Jeff Hoskins, but he should not be prohibited
from testifying about Red Hed’s relationship with Plaintiff. Plaintiff argues that in the letter,
Fassas also includes a business record that is germane to the issues in this case.

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As the Court noted at the hearing, it is unclear at this time how Plaintiff intends to use the
letter.

Accordingly, Defendants’ Motion in Limine number 18 [Doc. 183] is DENIED

WITHOUT PREJUDICE. Defendants may object to the use of this letter during trial.
L.

Defendants’ Motion in Limine Number 20 [Doc. 185]

Defendants request that the Court exclude Plaintiff’s Exhibits 107 and 108, which are
emails that relate to Plaintiff’s failure to turn off the credit card machines at its former sites.
Defendants state that that such evidence is irrelevant, will confuse and mislead the jury, and the
probative value is outweighed by the danger of unfair prejudice. In addition, Defendants claim
that Plaintiff abandoned this theory when Plaintiff did not respond to Defendants’ argument in
their motion for summary judgment.

Accordingly, for the reasons that the Court granted

Defendants’ Motion in Limine [Doc. 170], the Court hereby GRANTS Defendants’ Motion in
Limine Number 30 [Doc. 185].
M.

Defendants’ Motion in Limine Number 21 [Doc. 186]

Defendants request that the Court prohibit Plaintiff from reading into evidence the
deposition designations of Stephen Bradley, Jeff Gerl, Manny Payan, Paul Stanifer, Barbara
Stoyko, and Kevin Wood. Defendants state that although these individuals were designated as
Rule 30(b)(6) witnesses, they will testify live at trial. Defendants argue that their deposition
testimony will be cumulative. Plaintiff responds that it is not certain that the above identified
individuals will testify at trial, especially because at least one witness, Stephen Bradley, is not
included in Defendants’ final witness list. Further, Plaintiff argues that even if each witness listed
does appear live at trial, it is premature at this stage to make a determination as to what portions
of Plaintiff’s deposition designation will be cumulative.

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Accordingly, the Court agrees with Plaintiff in that it is not clear whether using the
depositions will be cumulative, and therefore, Defendants’ Motion in Limine Number 21 [Doc.
186] is DENIED WITHOUT PREJUDICE. Defendants may renew their objection at trial.
N.

Plaintiff’s Objection to Defendants’ Proposed Exhibits [Doc. 189]

During the hearing, the Court noted that it appeared many of Plaintiff’s Objections would
be resolved once the Court rules on the parties’ Motions in Limine. The parties agreed that after
receiving a ruling from the Court, they would meet and confer to determine whether there are any
remaining objections. If there are any remaining objections, Plaintiff SHALL file a motion,
indicating the specific objections by April 12, 2019. Accordingly, Plaintiff’s Objection to
Defendants’ Proposed Exhibits [Doc. 189] is DENIED WITHOUT PREJUDICE.
O.

Plaintiff’s Motion in Limine and Objections to Defendants’ Deposition
Designations [Doc. 190]

Plaintiff objects to certain deposition designations of Defendants and moves for an order
barring their introduction into evidence.

Specifically, Plaintiff objects to the deposition

designations of Jeff Hoskins and Beverly Lay. Plaintiff also objects that Defendants’ deposition
designations of Jeff Hoskins and Beverly Lay are improper because such testimony requires an
expert opinion. In response, Defendants assert that they expect Jeff Hoskins and Beverly Lay to
testify live at trial, and therefore, Defendants will not seek to introduce the deposition designations
of Jeff Hoskins or Beverly Lay unless those witnesses are deemed unavailable or the depositions
are necessary for impeachment purposes. Further, Defendants argue that to the extent Plaintiff
objects to Jeff Hoskins’s and Beverly Lay’s testimony regarding Plaintiff’s financial condition,
such testimony does not require an expert opinion. Defendants state that Jeff Hoskins is a coowner of Plaintiff, and Beverly Lay was Plaintiff’s bookkeeper for eighteen (18) years.

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Accordingly, given that Defendants do not intend on relying on Jeff Hoskins’s and Beverly
Lay’s depositions (unless they are unavailable or the depositions are used for impeachment
purposes), the Court finds Plaintiff’s Objections and Motion in Limine to Certain Deposition
Designations of the Defendants Per Rules 401 and 403 of the Federal Rules of Evidence [Doc.
190] DENIED AS MOOT. The Court further finds that Jeff Hoskins and Beverly Lay may testify
as to Plaintiff’s financial condition because such testimony, as designated in their depositions, does
not constitute an expert opinion.
II.

CONCLUSION
Accordingly, for the reasons explained above, the Court FINDS as follows:
1) Plaintiff’s Objection and Motion in Limine to Defendants’
Deposition Designations [Doc. 163] is GRANTED;
2) Defendants’ Motions in Limine [Docs. 164, 169, 170, 171, 181,
and 185] are GRANTED;
3) Defendants’ Motions in Limine [Docs. 165, 166 and 178] are
DENIED;
4) Defendants’ Motions in Limine [Docs. 167, 172, 173, 177, 179,
and 184] are DENIED AS MOOT;
5) Defendants’ Motions in Limine [Docs. 176, 183, and 186] are
DENIED WITHOUT PREJUDICE;
6) Plaintiff’s Objection to Defendants’ Proposed Exhibits [Doc.
189] is DENIED WITHOUT PREJUDICE; and
7) Plaintiff’s Motion in Limine and Objections to Defendants’
Deposition Designation [Doc. 190] is DENIED AS MOOT.
IT IS SO ORDERED.
ENTER:
________________________
Debra C. Poplin
United States Magistrate Judge
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