# Putnam v. The United States Army Review Board Agency

> District Court, W.D. Oklahoma · September 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10390539

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10390539

## How later opinions describe it (automated extraction)

- noting that “mootness [is] jurisdictional and non-waivable”

## Opinion text

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

LT. COL. (RET.) JOE A. PUTNAM, )
)
Plaintiff, )
)
v. ) Case No. CIV-22-305-G
)
UNITED STATES ARMY )
REVIEW BOARD AGENCY, )
)
Defendant. )

ORDER
Now before the Court is Defendant United States Army Review Board Agency
(“ARBA”)’s Motion (Doc. No. 15), seeking dismissal of or summary judgment upon the
claims raised by Plaintiff Lt. Col. (Ret.) Joe A. Putnam in his Amended Complaint (Doc.
No. 14). Plaintiff has responded (Doc. No. 18), Defendant has filed a Reply (Doc. No. 24),
and the matter is now at issue.
I. Background
In this action, Plaintiff, a retired U.S. Army officer, brings claims for relief based
upon Defendant’s alleged violation of the Freedom of Information Act (“FOIA”), 5 U.S.C.
§§ 551 et seq. See Am. Compl. ¶¶ 1, 4, 6. Defendant is an agency of the United States
Army that “serves as the highest administrative level for review of personnel actions taken
by lower levels of the Army and administers a number of boards.” Id. ¶ 5 (internal
quotation marks omitted).
On November 7, 2022, Plaintiff filed his Amended Complaint. In this pleading,
Plaintiff claims that Defendant violated FOIA by failing to timely conduct a search for
documents after receiving Plaintiff’s request and failing to reasonably conduct that search,
all in violation of 5 U.S.C. § 552. See id. ¶¶ 27-33. Plaintiff seeks injunctive and
declaratory relief in the form of a court order requiring Defendant to provide the additional

records that are properly subject to disclosure. See id. ¶¶ 1-3.
II. Relevant Standards
Defendant seeks dismissal of Plaintiff’s claims pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, arguing that the Court lacks subject-matter jurisdiction.
Alternatively, Defendant seeks summary judgment on Plaintiff’s claims pursuant to

Federal Rule of Civil Procedure 56. See Def.’s Mot. at 7-24.
In challenging this court’s jurisdiction, Defendant asserts that both Plaintiff’s
pleading and the record evidence establish that Defendant has now conducted a reasonable
records search and disclosed to Plaintiff all documents responsive to his FOIA request,
such that Plaintiff’s claims are now moot. See id. at 7-8, 11-14; see also Anderson v. U.S.

Dep’t of Health & Hum. Servs., 3 F.3d 1383, 1384 (10th Cir. 1993) (“Once the government
produces all the documents a plaintiff requests, her claim for relief under the FOIA
becomes moot.”); Mink v. Suthers, 482 F.3d 1244, 1257 (10th Cir. 2007) (noting that
“mootness [is] jurisdictional and non-waivable”).
Defendant therefore “challenge[s] not just Plaintiff[’s] allegations of jurisdiction but

also the facts underlying those allegations.” Davis ex rel. Davis v. United States, 343 F.3d
1282, 1295 (10th Cir. 2003); see Def.’s Mot. at 8; Holt v. United States, 46 F.3d 1000,
1002-03 (10th Cir. 1995) (differentiating between facial and factual attacks in Rule
12(b)(1) motions), abrogated on other grounds as stated in Ratheal v. United States, No.
20-4099, 2021 WL 3619902, at *2 (10th Cir. Aug. 16, 2021). The Tenth Circuit’s approach
to such a challenge is well established. Generally, a court deciding a factual attack on
subject-matter jurisdiction has “wide discretion” to consider evidence outside the pleadings

on that issue. Holt, 46 F.3d at 1003. However, when “resolution of the jurisdictional
question is intertwined with the merits of the case,” the Rule 12(b)(1) motion “should be
construed as a motion for summary judgment.” Id.; Ratheal, 2021 WL 3619902, at *3.
Although we have said that the jurisdictional question is intertwined with the
merits of the case if subject matter jurisdiction is dependent on the same
statute which provides the substantive claim in the case, we later clarified
that the focus of the inquiry is not merely on whether the merits and the
jurisdictional issue are under the same statute. Instead, whether a motion to
dismiss must be converted to a motion for summary judgment depends on
whether resolution of the jurisdictional question requires resolution of an
aspect of the substantive claim.
Ratheal, 2021 WL 3619902, at *3 (alteration, citations, and internal quotation marks
omitted).
Here, the substantive claims presented seek relief for Defendant’s alleged violation
of FOIA as to requests presented by Plaintiff, whereas the jurisdictional mootness question
presented is whether Defendant already has complied with its obligations pursuant to
FOIA. The jurisdictional question thus arises from the same statute as that underlying
Plaintiff’s substantive claims, and, further, determining that question will necessarily
resolve aspects of Plaintiff’s substantive FOIA claims. See id.
Both parties rely on materials beyond the pleadings and cite summary-judgment
standards to support their arguments. See Def.’s Mot. at 8-9 & attached exhibits; Pl.’s
Resp. at 7-13, 16 & attached exhibits. Moreover, although Plaintiff has moved for a
hearing on Defendant’s Motion (discussed infra), Plaintiff has not sought to take discovery
or otherwise “show[n] by affidavit or declaration” that he is unable to “present facts
essential to justify [his] opposition.” Fed. R. Civ. P. 56(d); cf. Pl.’s Mot. Hr’g (Doc. No.

25) at 1-2 (requesting a hearing for presentation of records already in Plaintiff’s
possession).
Accordingly, the Court shall consider Defendant’s Motion as one seeking the entry
of summary judgment pursuant to Federal Rule of Civil Procedure 56.
III. Federal Rule of Civil Procedure 56

Summary judgment is a means of testing in advance of trial whether the available
evidence would permit a reasonable jury to find in favor of the party asserting a claim. The
Court must grant summary judgment 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).
A party that moves for summary judgment has the burden of showing that the

undisputed material facts require judgment as a matter of law in its favor. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). To defeat summary judgment, the nonmovant need
not convince the Court that it will prevail at trial, but it must cite sufficient evidence
admissible at trial to allow a reasonable jury to find in the nonmovant’s favor—i.e., to show
that there is a question of material fact that must be resolved by the jury. See Garrison v.

Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The Court must then determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Parties may establish the existence or nonexistence of a material disputed fact by:
• citing to “depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . , admissions, interrogatory
answers, or other materials” in the record; or
• demonstrating “that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A), (B); see also LCvR 56.1(b)-(e). While the Court views the
evidence and the inferences drawn from the record in the light most favorable to the
nonmoving party, see Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d
1241, 1255 (10th Cir. 2005), “[t]he mere existence of a scintilla of evidence in support of
the [nonmovant’s] position will be insufficient; there must be evidence on which the jury
could reasonably find for the [nonmovant].” Liberty Lobby, 477 U.S. at 252.
IV. Discussion
As noted, Plaintiff’s claims arise from Defendant’s purported failure to adhere to
FOIA statutory requirements when processing Plaintiff’s request for records from

Defendant. See Am. Compl. ¶¶ 1-3 (citing 5 U.S.C. § 552).
A. 5 U.S.C. § 552 and FOIA Requests
Pursuant to FOIA, a person generally “is entitled to copies of a federal agency’s
records upon making a request that ‘reasonably describes such records’ and that complies
with required procedures for such requests.” Trentadue v. FBI, 572 F.3d 794, 796 (10th

Cir. 2009) (quoting 5 U.S.C. § 552(a)(3)(A)(i)). “Congress enacted FOIA to promote
public access to federal agency records and information upon request.” Friends of Animals
v. Bernhardt, 15 F.4th 1254, 1260 (10th Cir. 2021). “Its purpose is to ensure an informed
citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” Id. (internal quotation
marks omitted). “Given this purpose, FOIA is broadly construed in favor of disclosure.”

Id. But the statute “also exempts nine categories of records from disclosure for
confidentiality and privacy reasons.” Rocky Mountain Wild, Inc. v. U.S. Forest Serv., 56
F.4th 913, 921 (citing 5 U.S.C. § 552(b)).
When a FOIA request is made to a federal agency,
the agency ordinarily must “determine within 20 business days . . . whether
to comply with such request and shall immediately notify the person making
such request of such determination and the reasons therefor . . . .” [5 U.S.C.]
§ 552(a)(6)(A)(i). If the agency decides to comply with the request, “the
records shall be made promptly available” to the requester. Id. §
552(a)(6)(C)(i). If the agency decides not to comply, the requester can seek
relief in federal court. District courts have “jurisdiction to enjoin the agency
from withholding agency records and to order the production of any agency
records improperly withheld from the complainant.” Id. § 552(a)(4)(B).
Trentadue, 572 F.3d at 796-97 (omissions in original) (alteration omitted).
In a FOIA action challenging an agency’s decision to withhold records, “the district
court reviews de novo the agency’s decision not to disclose.” Rocky Mountain Wild, 56
F.4th at 922 (internal quotation marks omitted). The Tenth Circuit
ha[s] joined other circuits that have adopted the “reasonableness rule.” The
rule requires agencies to show that they reasonably tried to produce
responsive records. Their search must be reasonable in scope and intensity
and need not turn up every nonexempt requested document regardless of the
cost of locating it. That is why we focus on the agency’s search process, not
the outcome. To that end, the “issue is not whether any further documents
might conceivably exist but rather whether the government’s search for
responsive documents was adequate.” [Trentadue, 572 F.3d at 797]
(alteration in original). The reasonableness inquiry focuses on the
probability that the search will discover responsive documents, the
availability of other search methods, and the feasibility of those alternative
methods. We also consider the case’s circumstances when analyzing the
search.
Id. at 922-23 (citations and internal quotation marks omitted); accord Ancient Coin
Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (“[An agency]
fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its
search was reasonably calculated to uncover all relevant documents.” (internal quotation

marks omitted)).
“[C]ourts generally resolve FOIA cases on summary judgment based on affidavits
or declarations” and “routinely rely on declarations to make sure an agency fulfilled its
FOIA duties.” Rocky Mountain Wild, 56 F.4th at 923. “Discovery relating to the agency’s
search and the exemptions it claims for withholding records generally is unnecessary if the

agency’s submissions are adequate on their face, and a district court may forgo discovery
and award summary judgment on the basis of submitted affidavits or declarations.”
Trentadue, 572 F.3d at 807 (internal quotation marks omitted). The district court is
required to apply “a good-faith presumption” to such agency declarations; this presumption
“essentially requires [the court] to credit the agency’s sworn statements absent contrary
evidence.” Rocky Mountain Wild, 56 F.4th at 922 (internal quotation marks omitted). A

plaintiff “cannot rebut” that presumption of good faith “by merely speculating about the
possibility of other documents somewhere.” Id. Rather, a plaintiff must produce “contrary
evidence or proof of inconsistencies” to create a genuine issue for trial as to whether the
agency reasonably tried to produce responsive documents. Id. at 922, 926. “Unsupported
allegations are not enough to satisfy this burden.” Schwarz v. Nat’l Archives & Recs.
Admin., No. 98-4070, 1998 WL 703318, at *1 (10th Cir. Oct. 7, 1998).
B. Plaintiff’s Claims

Having considered the parties’ arguments and viewing the record in the light most
favorable to Plaintiff, the Court concludes that Defendant is entitled to summary judgment
on both of Plaintiff’s FOIA claims.
1. Timing of Defendant’s Search
Plaintiff first challenges the promptness of Defendant’s response to Plaintiff’s FOIA

request, arguing Defendant violated FOIA by failing to timely conduct a search and release
documents after Plaintiff submitted his request. See Am. Compl. ¶¶ 3, 9, 12-14, 16, 23-25,
27-30 (alleging that Defendant’s “refus[al] to provide documents upon the initial requests”
“essentially forced Plaintiff to file suit”).
In support, Plaintiff alleges that he submitted a written FOIA request to Defendant

on November 11, 2020, and again on December 19, 2020, with no response. See id. ¶ 12;
Am. Compl. Exs. 3, 4, 5 (Doc. Nos. 14-3, -4, -5). On April 8, 2022, Plaintiff filed this
lawsuit. On August 9, 2022, Plaintiff resubmitted his FOIA request through an e-mail from
Plaintiff’s counsel to ARBA’s FOIA Officer Paul A. Petty. Am. Compl. ¶ 15; Am. Compl.
Ex. 2 (Doc. No. 14-2) at 9-11. On August 15, 2022, Defendant requested a signed

authorization from Plaintiff; Plaintiff’s counsel returned the signed authorization to
Defendant on August 22, 2022. See Am. Compl. Ex. 2, at 13-16. On September 1, 2022,
and again on October 13, 2022, Plaintiff received “hundreds of pages of records from Mr.
Petty.” Am. Compl. ¶ 16.
Plaintiff fails to offer any evidence (as opposed to his own speculation) to refute
Officer Petty’s sworn statement that, although Plaintiff’s 2020 requests were logged as
received in the ARBA FOIA Office mailroom, Officer Petty was not made aware of them.

See Petty Decl. ¶ 31 (Doc. No. 14-2); Petty Suppl. Decl. ¶¶ 8-10 (Doc. No. 15-1). More
significantly, Plaintiff does not explain how a now-resolved delay in the release of records
is, standing alone, an actionable FOIA violation. Courts have explained that FOIA “does
not provide an after-the-fact remedy once documents have been released, however tardily.”
Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 69 (D.D.C. 2003).

[H]owever fitful or delayed the release of information under the FOIA may
be, once all requested records are surrendered, federal courts have no further
statutory function to perform. . . . . Under 5 U.S.C. § 552(a)(4)(B), a federal
court is authorized only to “enjoin the agency from withholding agency
records and to order the production of any agency records improperly
withheld . . . . .” Thus, once the records are produced the substance of the
controversy disappears and becomes moot since the disclosure which the suit
seeks has already been made. We are not authorized to make advisory
findings of legal significance on the character of the agency conduct vis-a-
vis any requester of information.
Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (second omission in original)
(alteration, citation, and internal quotation marks omitted).
Accordingly, Defendant is entitled to judgment as a matter of law on this claim.
2. Adequacy and Reasonableness of Defendant’s Search
Plaintiff challenges the reasonableness and scope of Defendant’s FOIA search,
asserting that genuine fact issues exist as to “whether the government’s search for
responsive documents was adequate.” Trentadue, 572 F.3d at 797; see Pl.’s Resp. at 5-6,
16, 17.
The record before the Court reflects:
• Officer Petty serves as ARBA’s FOIA Officer and as a Senior Analyst and
Special Actions Officer and is responsible for processing FOIA requests for
ARBA records. Petty Decl. ¶ 1; Petty Suppl. Decl. ¶ 2.
• ARBA case records are maintained in an online database called the ARBA Case
Tracking System (or “ACTS”) system. Petty Decl. ¶ 5.
• Upon receiving Plaintiff’s counsel’s August 9, 2022 FOIA request and
Plaintiff’s privacy release, Officer Petty searched the ACTS by Plaintiff’s name
and located multiple records. He also cross-referenced other sources within
ARBA. Id. ¶¶ 8-16.
• ARBA’s legal office searched its litigation files. The only documents that were
located and not associated with this current litigation were internal legal review
documents from 2010. Id. ¶ 17.
• The Congressional Liaison and Inquiry Office (“CLI”) also searched its files.
CLI did not find any request or responses related to Plaintiff during the requested
time frame (within the last four years), and none were in ACTS. Id. ¶ 18.
• According to Officer Petty, there are no other logical places to search for records
responsive to Plaintiff’s request. Id. ¶ 19.
• ARBA’s initial search for the requested records took approximately 5 to 6 hours.
An additional 16 hours were spent preparing the responsive records for
production. Id. ¶ 20.
• In accordance with 5 U.S.C. § 552(b)(5) and (6), Officer Petty redacted some
portions of the responsive documents. Id. ¶ 22.
• On September 1, 2022, Officer Petty notified Plaintiff’s counsel via e-mail that
the responsive records had been forwarded to him via the DOD SAFE
application for secure transmission. Officer Petty additionally responded in
writing to each of Plaintiff’s counsel’s specific questions posed in the August 9,
2022 email. Id. ¶¶ 24-25; Am. Compl. Ex. 2, at 12-13.
• On September 22, 2022, Plaintiff’s counsel accessed the initial FOIA production
from DOD SAFE. Petty Decl. ¶ 26.
• On October 13, 2022, Officer Petty supplemented ARBA’s initial FOIA
response with documents that had previously failed to transmit due to a system
error. Id. ¶ 27.
• On October 14, 2022, the U.S. Attorney’s Office e-mailed a Vaughn index1 to
Plaintiff’s counsel. See Def.’s Mot. Ex. 2 (Doc. No. 15-2).
• ARBA’s initial production included interoffice and/or intraoffice
correspondence. Petty Suppl. Decl. ¶ 5.
• After Plaintiff raised new allegations about a lack of interoffice and/or
interagency correspondence in the initial production, Officer Petty undertook an
additional review but found no such correspondence. Officer Petty normally
would not have conducted the additional review based upon the FOIA request
but did so “as a precaution, just in case there was information located in some
place that [he] did not expect it.” This subsequent search took approximately 4
hours. Id. ¶ 6.
• Plaintiff received “at least 410 specific documents and almost 900 pages” of
documents in response to his FOIA requests. Pl.’s Resp. at 10; Def.’s Reply at
9.
Plaintiff objects that this record does not demonstrate that Plaintiff has been
provided “each and every non-exempted record” in Defendant’s possession. Pl.’s Resp. at
5, 17. As Defendant correctly notes, however, “each and every” is not the appropriate
standard. Rather, Defendant must show that it “reasonably tried to produce responsive
records” and that its search was “reasonably calculated to uncover all relevant documents.”
Rocky Mountain Wild, 56 F.4th at 922; Ancient Coin Collectors Guild, 641 F.3d at 514
(internal quotation marks omitted).
Having considered the parties’ arguments and the relevant evidence, the Court
concludes that there is no genuine factual dispute as to the reasonableness in scope and
intensity of Defendant’s FOIA search. Officer Petty’s sworn declarations indisputably

1 “A Vaughn index is a compilation prepared by the government agency . . . listing each of
the withheld documents and explaining the asserted reason for its nondisclosure.” Hull v.
IRS, 656 F.3d 1174, 1178 n.2 (10th Cir. 2011) (omission in original) (internal quotation
marks omitted) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)).
show “a good faith effort to conduct a search for the requested records, using methods
[that] can be reasonably expected to produce the information requested.” Oglesby v. U.S.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Although Plaintiff argues that the search

was inadequate because records provided from the ACTS database contained references to
other documents, he cites no specific evidence to support this proposition. See Pl.’s Resp.
at 15. “There is no requirement that an agency search every record system,” and Officer
Petty specifically asserted that record searches were conducted in every “logical” location
available. Oglesby, 920 F.2d at 68; see Petty Decl. ¶¶ 17-18. Further, “[a]n agency cannot

be required to produce records when none exist.” Schwarz, 1998 WL 703318, at *2.
According to Plaintiff, Defendant’s failure to conduct a search reasonably calculated
to produce all responsive records is primarily demonstrated by the lack of Plaintiff’s receipt
of documents that Plaintiff believes are “missing” and omitted from the Vaughn index of
withheld documents. See Pl.’s Resp. at 10-12. While a plaintiff can “cast doubt on the

agency’s claim of adequacy” by “produc[ing] evidence that relevant records have not been
released,” Plaintiff fails to produce such evidence here. Fitzgibbon v. CIA, 578 F. Supp.
704, 726 (D.D.C. 1983) (internal quotation marks omitted). Plaintiff instead attempts to
establish a dispute as to whether documents have been improperly overlooked or withheld
by pointing to (1) various items of unverified correspondence that contain references to

possible inquiries by others into Plaintiff’s military records and (2) a table compiled by
Plaintiff’s counsel, informed by his client’s opinions, summarizing the documents that
were produced by Defendant and those potentially withheld. See Pl.’s Resp. at 10-13, 15;
Pl.’s Resp. Exs. 1, 2, 3, 6 (Doc. Nos. 18-1, -2, -3, -6); Am. Compl. ¶¶ 3, 12, 19.
Neither the unverified Amended Complaint nor counsel’s own argument and work
product amount to “sufficient evidence in specific, factual form” regarding Defendant’s
search that would preclude the entry of summary judgment on Plaintiff’s FOIA claim.

GeoMetWatch v. Behunin, 38 F.4th 1183, 1200 (10th Cir. 2022) (internal quotation marks
omitted); see Mosier v. Maynard, 937 F.2d 1521, 1525 (10th Cir. 1991) (“Factual
statements . . . attributable to counsel . . . do not constitute summary judgment
evidence[.]”). Plaintiff primarily attempts to undermine the sufficiency of Defendant’s
search by pointing to a specific letter and arguing that “[i]t does not make sense” for

Defendant not to find related interoffice correspondence. Am. Compl. ¶¶ 3, 12, 19; see
also Pl.’s Resp. at 10, 13, 15.2 But Plaintiff may not rely upon “[u]nsubstantiated
allegations,” “ignorance of the facts,” “speculation,” or “suspicion” to establish the
inadequacy of Defendant’s FOIA search. GeoMetWatch, 38 F.4th at 1200 (internal
quotation marks omitted). Officer Petty attested that he specifically searched for any

records related to the cited letter. See Petty Decl. ¶¶ 21, 24; Petty Suppl. Decl. ¶¶ 3-4, 6.
And FOIA does not “require[] an agency to answer questions disguised as a FOIA request”
or “to create documents or opinions in response to an individual’s request for information.”
Poll v. U.S. Off. of Special Couns., No. 99-4021, 2000 WL 14422, at *4 n.2 (10th Cir. Oct.
14, 1999) (internal quotation marks omitted).

2 The letter, dated April 19, 2013, was sent from ARBA to Senator James Inhofe and states
that it is a response to an inquiry from Senator Inhofe into Plaintiff’s military record. See
Am. Compl. Ex. 3, at 5-6.
As Defendant’s “detailed declarations comply with FOIA,” and the record contains
no “specific, nonspeculative, countervailing evidence” or “evidence of inconsistencies” (as
opposed to counsel’s argument) to rebut the good-faith presumption afforded those

declarations, no genuine dispute remains as to whether Defendant “reasonably tried to
produce responsive records.” Rocky Mountain Wild, 56 F.4th at 922. Defendant is entitled
to summary judgment on Plaintiff’s claim.
3. Plaintiff’s Motion
Plaintiff has requested a hearing pursuant to Federal Rule of Civil Procedure

12(b)(1). See Pl.’s Mot. Hr’g at 1-2. The Court declines, as Defendant’s Motion was
considered and disposed of pursuant to Rule 56, with the Court thereby finding that it had
an adequate factual basis upon which to make its decision. See Poll, 2000 WL 14422, at
*1; see also LCvR 78.1. In addition, Plaintiff seeks a hearing simply to present a “sample”
of the records that were produced to Plaintiff by Defendant. Plaintiff fails to provide an

adequate explanation of why any relevant records were not submitted in briefing or how
such records would conceivably show a material fact issue for trial. Cf. Liberty Lobby, 477
U.S. at 248 (“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.”).
CONCLUSION

As set forth herein, Defendant’s Motion (Doc. No. 15), construed as a motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56, is GRANTED.
Plaintiff’s Motion for Hearing (Doc. No. 25) is DENIED.
A separate judgment shall be entered.
IT IS SO ORDERED this 29th day of September, 2023.

CHARLES B.GOODWIN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390539. Public record. Not legal advice.