*1 Plaintiff Kevin Russell has filed this lawsuit against Defendants Harold Kemp, Action Resources, Inc., and Third Coast Insurance Company following a motor vehicle action in which he alleges that he suffered injuries.

On April 22, 2021, at approximately 9:30 p.m., Russell's Chevrolet Equinox was parked on the right shoulder of Interstate 20 East in Carroll County, Georgia. He had no lights or emergency flashers activated. Russell contends that his vehicle cut off while he was driving and that he was able to roll onto the shoulder before his vehicle came to a stop roughly ten feet from where it cut off. Kemp was driving a tractor-trailer that struck the rear left side of Russell's vehicle.

At some point while Russell was in his vehicle, he consumed a twenty-ounce bottle of homemade liquor. Following the collision, he was arrested by the Georgia State Patrol for driving under the influence of alcohol. After he was taken to jail, his blood alcohol level was 0.166 percent (more than double the legal limit). Russell contends that he drank the alcohol only after his vehicle cut off—while he was waiting for a tow truck to arrive—because he knew he would not be driving any more that evening.

Defendants contend that Russell's explanation is implausible. Instead, they argue, it is more likely that Russell was already intoxicated while he was driving, and that his intoxication is the reason he pulled over.

Russell alleges that Kemp was carelessly operating the tractor-trailer. Kemp received a citation for failure to maintain lanes. Russell alleges that the collision caused him to suffer pain to his back, neck, left arm, left leg, left shoulder, and ribs on his left side. Ultimately, he alleges, the collision led to him needing to have lumbar fusion surgery.

The following motions are pending in this case: Russell's motion [50] for sanctions for spoliation of evidence; Action Resources and Kemp's motion [52] for sanctions for spoliation of evidence; Action Resource and Kemp's motion [53] to exclude Russell's late-named expert; all Defendants' motion [54] for summary judgment; all Defendants' motion [55] for attorneys' fees and expenses; Third Coast's motion [56] to dismiss; Russell's motion [62] for extension of time to complete discovery; and Russell's motion [64] to amend his response in opposition to Third Coast's motion to dismiss.

I. Motions for Sanctions

Each party has filed a motion for spoliation sanctions. Russell contends that Defendants are responsible for the intentional spoliation of the vehicle Kemp was driving at the time of the collision. Defendants Kemp and Action Resources, on the other hand, argue that Russell is responsible for the intentional spoliation of his own vehicle that he was in at the time of the collision. Both motions seek an exclusion of evidence and an adverse inference in the movants' favor.

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011) (quoting Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009)).

*2 “[F]ederal law governs the imposition of spoliation sanctions.” Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 2020) (quoting Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005)). However, courts in this district borrow a multi-factor test from Georgia spoliation law to determine whether spoliation sanctions are warranted. Flury, 427 F.3d at 944–45. The relevant factors include (1) prejudice to the non-spoiling party as a result of the destruction of evidence; (2) whether the prejudice can be cured; (3) the practical importance of the evidence; (4) whether the spoiling party acted in good or bad faith; and (5) the potential for abuse if sanctions are not imposed. Id. at 945; see also Tesoriero, 965 F.3d at 1184 (quoting ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018)).

Further, Rule 37 of the Federal Rules of Civil Procedure addresses the spoliation of electronically stored information. See FED. R. CIV. P. 37(e). Rule 37(e) provides,

The party seeking sanctions bears the burden of proof of the issue of spoliation and its legal elements. In re Delta/AirTran, 770 F. Supp. 2d at 1308 (citing Eli Lilly & Co. v. Air Express Int'l USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010)).

The Eleventh Circuit has not yet determined whether the multi-factor Flury test is still applicable when a party seeks sanctions based on the spoliation of electronically stored evidence. ML Healthcare Servs., LLC, 881 F.3d at 1308.

Under the Flury test, “[s]poliation sanctions—and in particular adverse inferences—cannot be imposed for negligently losing or destroying evidence.” Tesoriero, 965 F.3d at 1184. Instead, “an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Id. (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)).

To find bad faith, the Court is not required to find malice. Flury, 427 F.3d at 946. However, it must find more than mere negligence, “which is insufficient to support spoliation sanctions under the law of this circuit.” In re Delta/AirTran, 770 F. Supp. 2d at 1313 (citations omitted). Bad faith “generally means destruction for the purpose of hiding adverse evidence.” Tesoriero, 965 F.3d at 1184 (quoting Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015)); see also Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009).

Likewise, to obtain an adverse inference instruction or a default judgment sanction under Rule 37(e), the Court must find “that the spoliating party ‘acted with the intent to deprive another party of the information's use in the litigation.’ ” ML Healthcare Servs., LLC, 881 F.3d at 1308 (quoting FED. R. CIV. P. 37(e)(2)).

A. Russell's Motion

Russell contends that Defendants are responsible for the intentional spoliation of the tractor-trailer Kemp was driving at the time of the collision. He contends that the CPC (computer powertrain control) module was placed into another vehicle after the collision. Russell argues that the CPC module data is necessary for his case because it would have shown the speed at which Kemp was driving at the time of Kemp's collision with Russell. However, Russell's motion suffers from numerous deficiencies.

*3 First, Russell did not put Defendants on notice that he deemed the tractor-trailer—and particularly the CPC module that was in it at the time—important to his lawsuit. Nowhere in his complaint does he allege that Kemp was speeding or that the speed of the tractor-trailer had anything to do with the collision or his injuries. Instead, he alleges that Kemp was negligent by the following specific acts: (1) failing to timely and properly apply his brakes; (2) failing to observe or undertake necessary precautions to prevent the collision; (3) driving without due caution and circumspection; (4) “failing to maintain a controlled traffic device and fail[ing] to drive on the right side of the roadway, overtaking and passing, and following too closely;” (5) failing to make or act on reasonable and proper observations; (6) driving in reckless disregard for safety of persons and/or property. [1-1] ¶ 13.

Russell never requested that Defendants produce the vehicle or any of its components. Defendants preserved and produced the maintenance file and inspection reports related to the vehicle, the dash cam footage, the title, and the accident file. And they permitted Russell's expert to download information from the vehicle's ECM module, which stores information that may include the speed it was traveling.

Additionally, even if Action Resources intentionally removed the CPC module from Kemp's truck and installed the module in another truck for the purpose of obstructing this litigation, denial of sanctions is warranted when “the practical importance of the evidence” is minimal. Flury, 427 F.3d at 945. Here, the information Russell seeks is available from other sources, including the ECM data (containing essentially identical data to that in the CPC module), the video of the accident as captured on a mounted camera from Kemp's vehicle, GPS position history recording the speed, and witness testimony.

Ultimately, the Court finds no evidence of bad faith or intent to deprive on Defendants' part. Moreover, because the evidence is available from other sources, the Court finds that Russell was not prejudiced by the inability to examine the CPC module. Therefore, Russell's motion for sanctions will be denied.

B. Defendants' Motion

Defendants contend that Russell intentionally destroyed the vehicle he was driving on the night of the collision, prohibiting them from examining the sole source of evidence as to whether the vehicle broke down as Russell argues. To reiterate, Defendants' theory is that Russell pulled over not because his vehicle broke down but because Russell was intoxicated.

On September 1, 2021—less than one month after Russell filed this suit in state court—Defendants' counsel sent a preservation letter to Russell's counsel, requesting that he preserve his vehicle, provide its location, and produce it for inspection. Russell failed to do so. Defendants continued to request production of the vehicle through discovery filings, but Russell never produced the vehicle.

The Court finds Defendants' motion for sanctions meritorious. Defendants have suffered prejudice—that cannot be cured—as a result of the destruction of Russell's vehicle. The vehicle was the sole piece of evidence that could indicate whether Russell's vehicle broke down as he contends. Because this is a major point of contention between the parties, the evidence is important.

The Court finds bad faith. As noted above, bad faith does not require malice. Rather, the Court should “weigh the degree of the spoliator's culpability against the prejudice to the opposing party.” Flury, 427 F.3d at 946. In this instance, the culpability lies with Russell; although Defendants requested to inspect the vehicle multiple times, he never produced the vehicle. As it turns out, Russell had allowed his insurance company to salvage the vehicle without providing notice to Defendants. And Russell's contention that Defendants should have contacted his insurer does not suffice—he did not inform them that his insurer possessed the vehicle until a year after they sent him a preservation letter. And Russell is not insulated from responsibility based on the insurer's possession. See id. at 945. The Court thus finds that the balance favors Defendants in finding bad faith. See id. at 946 (finding bad faith and noting that “the district court erred in assigning fault to the defendant. Defendant could not have ensured preservation of the vehicle because it had no knowledge of the vehicle's whereabouts.”).

*4 Finally, if the Court were to not award sanctions, it could lead to abuse—specifically, incentivizing parties to simply turn vehicles over to their insurers if they believe the vehicle contains evidence that would be unfavorable to them.

As the Flury factors weigh in favor of imposing sanctions, the Court will grant Defendants' motion. Specifically, the Court will exclude at trial any evidence or argument from Russell that his vehicle suffered an unexpected mechanical breakdown and will instruct the jury to infer that the vehicle did not unexpectedly break down.

II. Motion for Attorneys' Fees and Expenses

Defendants have filed a motion for attorneys' fees and expenses under Federal Rule of Civil Procedure 37(c)(2) based on Russell's false responses to their requests for admission (“RFAs”).

On November 5, 2021, Defendants served RFAs upon Russell. These included requests that Russell admit that (1) his vehicle's rear warning and/or flashing lights were not activated at the time of the accident; (2) he consumed alcohol on the night of the accident; (3) he consumed alcohol within one hour of the accident; (4) he consumed alcohol within two hours of the accident; (5) he consumed alcohol within four hours of the accident; (6) he was arrested for DUI on the night of the accident; (7) he gave a sample of his breath and/or blood on the night of the accident; (8) the results of the test showed his blood alcohol level was above 0.08 percent on the night of the accident; and (9) he was intoxicated while his vehicle was stopped on or near Interstate 20 prior to the accident.

On December 3, 2021, Russell served written responses to the RFAs in which he denied all the requests listed above. However, at his deposition, Russell testified that all these requests should have been admitted because they were true.

Under Federal Rule of Civil Procedure 37(c)(2),

In such circumstances, the Court “must so order” reasonable fees and expenses unless (1) the opposing party objected to the request under Rule 36(a); (2) the sought admission was of no substantial importance; (3) the opposing party had a reasonable ground to believe he might prevail on the matter; or (4) there was other good reason for the failure.

The parties do not dispute that Russell did not object to the request under Rule 36(a). Rather, he contends that the other three exceptions apply.

The Court is not persuaded that the sought admissions were of no substantial importance. As Defendants argue, the reason Russell was stopped on the side of Interstate 20 is important to this case. They contend that he was drinking alcohol while in his vehicle on the interstate and was intoxicated at the time of the collision. Specifically, their contention is that Russell was illegally stopped on the side of the highway because he was intoxicated; they contend that his vehicle did not merely break down. They argue that Russell created a hazard by pulling roughly six inches onto the side of the interstate in a dark construction zone without lights or a hazard signal. And they contend that it is relevant whether he did so because he was intoxicated.

*5 The Court understands that Russell disagrees with Defendants' characterization of how the events occurred. However, untruthful discovery responses are not the answer. The Court finds that the RFAs were of sufficiently substantial importance that Russell's denial is not excused on this basis.

Russell contends that denying these RFAs was necessary because of his pending DUI charges and his Fifth Amendment right against self-incrimination. However, he never invoked the Fifth Amendment in his responses; instead, he chose to provide false responses. And he admitted in his deposition that he was drinking liquor before the collision and did not activate his vehicle's hazard or flashing lights. The Court agrees with Defendants that Russell did not have a reasonable ground to believe he might prevail on the matters.[1] Nor does the Court find any other good reason to excuse Russell's failure to admit. Therefore, Defendants' motion will be granted.

Defendants have filed affidavits of time and fees incurred in the deposition ($1,995) and in bringing their motion ($1,014). Russell does not provide any specific objections to the time or fees. The Court will award the full amount of $3,009.

III. Motion to Exclude

Defendants have filed a motion [53] to exclude Russell's expert witness, Sean Alexander, because Russell delayed in naming Alexander as an expert witness until September 9, 2022—sixteen days before discovery closed.

Russell filed this action on August 3, 2021. He filed his initial disclosures on October 21, stating that he had not yet retained an expert witness but reserved the right to supplement. On December 3, he responded to written discovery requests, stating that he did not have an expert he intended to testify but would supplement if and when he did have such an expert.

Discovery—originally set to close on June 25, 2022—was extended by consent motion and order until September 25.

On September 9—sixteen days before discovery closed—Russell first identified Alexander as an expert in accident reconstruction and forensic mapping. He disclosed that Alexander is expected to testify as to the cause of the accident.

Russell did not provide the report, summary of opinions, or other materials required under Federal Rule of Civil Procedure 26(a)(2)(B) within the discovery period. See Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008) (striking expert who was named twelve days before the close of discovery and whose expert report was provided nearly seven weeks after discovery closed). He did not provide an expert report until he filed his response to Defendants' motion to exclude—roughly six weeks after discovery closed.

This Court's Local Rule 26.2(C) requires that expert witnesses be identified with sufficient time for (1) Defendants to depose the expert; (2) Defendants to retain, identify, and provide a report for a rebuttal expert; and (3) Plaintiff to depose Defendants' rebuttal expert. See, e.g., Coyote Portable Storage, LLC v. PODS Enters., Inc., No. 1:09-cv-1152-AT, 2011 WL 1870593, at *2–3 (finding expert disclosed thirty-six days before close of discovery untimely).[2]

*6 As Defendants contend, Russell knew or should have known from the filing of this lawsuit—at the latest—that he would need an expert witness. The Court is not persuaded by his contention that the delay is attributable to Defendants' delay in responding to his request to inspect their vehicle. Russell did not request to inspect the vehicle until August 25, 2022—a year after filing his lawsuit.

Russell, in response to the motion to exclude, has filed a motion [62] to reopen and extend discovery for ninety days. Russell's motion is, in essence, a request to amend the Court's scheduling order.

Under Federal Rule of Civil Procedure 16(b)(4), amending the scheduling order requires Russell to show good cause. The Eleventh Circuit has elaborated on this requirement, stating that good cause exists if the schedule cannot reasonably be met despite the seeking party's diligence. Green Island Holdings, LLC v. British Am. Isle of Venice (BVI), Ltd., 521 F. App'x 798, 800 (11th Cir. 2013). Motions for extensions of discovery are treated with particular disfavor if discovery has already closed when the motion is filed. Tiya v. State Farm Fire & Cas. Co., No. 1:14-cv-1314-RGV, 2014 WL 12069849, at *1 (N.D. Ga. Nov. 20, 2014).

The Court does not find good cause. Russell has failed to demonstrate that he was unable to meet the schedule despite his diligence.

And pursuant to Local Rule 26.2(B), discovery extensions must be made before the existing discovery period ends and should be granted only in exceptional cases (where the circumstances on which the request is based did not exist or could not have been foreseen by the attorneys). Here, the request was made after discovery ended. And Russell has failed to show that this is an exceptional case.

Again, the Court is not persuaded that Russell's delay in being able to inspect Defendants' vehicle suffices as a basis to reopen discovery, primarily because the bulk of the delay was Russell's own fault. And, as discussed above, though such a showing is not required, Defendants would suffer prejudice if discovery were to be reopened.

Therefore, Defendants' motion to exclude will be granted, and Russell's motion to reopen and extend discovery will be denied.

IV. Motion for Summary Judgment

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). There is a “genuine” dispute as to a material fact if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” FindWhat Inv. Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In making this determination, “a court may not weigh conflicting evidence or make credibility determinations of its own.” Id. Instead, the court must “view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.” Id.

“The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party would have the burden of proof at trial, there are two ways for the moving party to satisfy this initial burden. United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437–38 (11th Cir. 1991). The first is to produce “affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial.” Id. at 1438 (citing Celotex Corp., 477 U.S. at 331). The second is to show that “there is an absence of evidence to support the nonmoving party's case.” Id. (quoting Celotex Corp., 477 U.S. at 324).

*7 If the moving party satisfies its burden by either method, the burden shifts to the nonmoving party to show that a genuine issue remains for trial. Id. At this point, the nonmoving party must “ ‘go beyond the pleadings,’ and by its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at 324).

Defendants' motion for summary judgment is based entirely on Russell's failure to name an expert witness to testify as to the causation of his injuries.[3]

In negligence cases such as this one, the “plaintiffs must come forward with expert evidence to survive a defense motion for summary judgment, where ‘medical questions’ relating to causation are involved.” Cowart v. Widener, 697 S.E.2d 779, 784 (Ga. Ct. App. 2010). A “medical question” arises “where the existence of a causal link between the defendant's conduct and the plaintiff's injury cannot be determined from common knowledge and experience and instead requires the assistance of experts with specialized medical knowledge.” Id.

The Court is not persuaded by Defendants' argument that specialized medical knowledge is required in this case. Indeed, Defendants' argument appears to address primarily a scenario in which Russell “argues the subject incident aggravated a pre-existing condition.” [54] at 7. In his response, Russell confirms that his injuries are not of a preexisting nature. And, he states, his injuries are straightforward, not involving a diagnosis (or continuance) of a disease or medical condition. Under these circumstances, the Court finds no expert testimony is required. See, e.g., Jordan, 380 S.E.2d 714, 715 (Ga. Ct. App. 1989) (holding that an expert was not necessary for a jury to determine that a car accident caused the plaintiff's back pain where “there is no significant lapse of time between the injury sustained and the onset of the physical condition for which the injured party seeks compensation, and the injury sustained is a matter which jurors must be credited with knowing by reason of common knowledge”). Summary judgment on the negligence claim will be denied.

Defendants' argument for summary judgment on Russell's claims for punitive damages and attorneys' fees rests on the assumption that Defendants are entitled to summary judgment on the underlying negligence claim. Defendants contend—and the Court agrees—that the claims for punitive damages and attorneys' fees are derivative and cannot stand without the underlying negligence claim.[4] However, because the negligence claim survives summary judgment, the remaining claims do as well.

Defendants' motion for summary judgment will be denied.

V. Motion to Dismiss

Russell initially filed his complaint against Kemp, Action Resources, and Sedgwick Claims Management Services, Inc. Although the complaint named Sedgwick as a party authorized to do business in Carroll County and in the State of Georgia, it makes no factual allegations against or claims as to Sedgwick.

*8 On October 11, 2021, Russell moved to substitute as Accident Fund Holdings, Inc., and Fundamental Underwriters as Defendants, stating that he had incorrectly named Sedgwick as a Defendant. The Court granted his motion.

On October 21, 2021, Russell filed a motion to substitute Third Coast as a Defendant in place of Accident Fund Holdings and Fundamental Underwriters. The Court granted the motion. However, no factual allegations were made against Third Coast. In fact, although the Court granted the motion to substitute, Russell never filed an amended complaint. Third Coast never filed an answer.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” This pleading standard does not require “detailed factual allegations,” but it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

To survive a 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Chandler v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012) (quoting id.). The Supreme Court has explained this standard as follows:

Iqbal, 556 U.S. at 678 (citation omitted) (quoting Twombly, 550 U.S. at 556); see also Resnick v. AvMed, Inc., 693 F.3d 1317, 1324–25 (11th Cir. 2012).

Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–56 (citations omitted). “[A] formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citation omitted). While all well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011), the Court need not accept as true the plaintiff's legal conclusions, including those couched as factual allegations, Iqbal, 556 U.S. at 678.

Accordingly, evaluation of a motion to dismiss requires two steps: (1) eliminate any allegations in the pleading that are merely legal conclusions, and (2) where there are well-pleaded factual allegations, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

In this action, Russell makes no factual allegations against Third Coast. He clearly has failed to state a claim against that Defendant.[5]

Russell does not dispute that, as the pleadings currently stand, he fails to state a claim against Third Coast. Instead, in his two-page response to the motion to dismiss, he states that he “failed to submit an amended Complaint to properly state a claim against Third Coast” and “asks permission to file its' [sic] proposed amended complaint and asks this court to allow for leave to amend under rule 15, and to file the same.” [61] at 1–2. He then filed a motion [64] to amend his response to attach a proposed amended complaint.

*9 There are multiple problems with Russell's attempt to amend his complaint. First, he has failed to file a motion for leave to amend his complaint. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1222 (11th Cir. 1999) (“Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.”).

Even overlooking this deficiency, Russell's belated attempt to amend his complaint fails. According to the Joint Preliminary Report and Discovery Plan, he was required to amend his complaint no later than November 22, 2021. The Court granted his request to substitute Third Coast as a Defendant on November 10, leaving Russell twelve days to amend. Yet he waited nearly a year to attempt to amend. He provides no good cause—indeed, he provides no explanation at all—for his delay. Thus, his request to amend will be denied.[6]

Concomitantly, Third Coast's motion [56] to dismiss will be granted.

VI. Conclusion

For the foregoing reasons, Russell's motion [50] for sanctions for spoliation of evidence is denied, and Action Resources and Kemp's motion [52] for sanction for spoliation of evidence is granted.

Action Resource and Kemp's motion [53] to exclude Russell's late-named expert is granted, and Russell's motion [62] for extension of time to complete discovery is denied.

Defendants' motion [55] for attorneys' fees and expenses is granted.

Third Coast's motion [56] to dismiss is granted, and the Clerk is directed to drop Third Coast as a Defendant. Russell's motion [64] to amend his response in opposition to Third Coast's motion to dismiss is granted to the extent that the Court has considered the amended response.

Defendants' motion [54] for summary judgment is denied. The parties are directed to file their joint proposed pretrial order within thirty days.

IT IS SO ORDERED this 24th day of January, 2023.