Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Louis D. Brown III, Case No. 1:25-cv-00834

Plaintiff,

-vs-

JUDGE PAMELA A. BARKER

American Economy Insurance Company

Defendant. MEMORANDUM OPINION & ORDER

Currently pending before the Court is Plaintiff Louis D. Brown III’s (“Plaintiff”) Motion for

Leave to File Sur-Reply and Proposed Sur-Reply in Opposition to Defendant’s Motion for Summary

Judgment (Doc. No. 28), Motion for Leave to Supplement the Record with Public Records and for

Extension of Time to File Same (Doc. No. 29), Motion for Reasonable ADA Accommodation and

Request for Extension of Time to Respond to Defendant’s Summary Judgment Filings (Doc. No. 30),

and Motion to Issue Subpoenas (Doc. No. 32) (collectively, “Plaintiff’s Motions”). Defendant

American Economy Insurance Company (“Defendant”) filed an Omnibus Memorandum in

Opposition to Plaintiff’s Pending Motions (“Opposition”). (Doc. No. 31.) For the following reasons,

Plaintiff’s Motions are denied.

I. Background

On March 21, 2025, Plaintiff, proceeding pro se, filed the Complaint in the Cuyahoga County

Court of Common Pleas. (Doc. No. 1-1.) Therein, he asserted claims for breach of contract, bad

faith insurance practices, and violation of the Ohio Consumer Sales Practices Act. (Id.) Plaintiff’s

Complaint sets forth the following allegations. “Plaintiff entered into a valid insurance contract with

Defendant under policy number OK7319825, which included coverage for water damage, wind

damage, and related perils” at his property located at 2184 East 82nd Street, Cleveland, Ohio, 44103

(the “Property”). (Doc. No. 1-1, PageID# 8, ¶ 5, PageID# 25.) “On three separate occasions, Plaintiff

suffered losses covered under the policy: a. Claim #058695529 (January 23, 2025) – Water damage

due to sewer backup. b. Claim #057400285 (July 17, 2024) – Water damage due to HVAC/plumbing

issue. c. Claim #054247731 (July 20, 2023) – Wind damage.” (Id. at PageID# 8, ¶ 6.)

“Plaintiff timely filed claims and provided all necessary documentation, including damage

assessments, photographs, and repair estimates.” (Id. ¶ 7.) “Defendant failed to pay any of the claims,

despite clear policy coverage and proof of loss.” (Id. ¶ 8.) “Defendant initially authorized water

cleanup for Claim #058695529 but later canceled the service without justification.” (Id. ¶ 9.)

“Defendant has failed to communicate with Plaintiff regarding claim determinations, ignoring

numerous inquiries and failing to provide reasonable justification for denying or delaying payments.”

(Id. ¶ 10.)

“Plaintiff has suffered substantial property loss, structural damage, and health complications

due to Defendant’s refusal to provide coverage.” (Doc. No. 1-1, PageID# 9, ¶ 11.) “Plaintiff has a

chronic lung condition and a history of heart transplants and the black mold and toxic smells from

the water damage have exacerbated his medical issues, requiring him to vacate his home and incur

additional living expenses.” (Id. ¶ 12.) “Defendant refused to provide temporary housing despite

policy provisions requiring reasonable accommodations for displacement due to covered losses.” (Id.

¶ 13.)

On April 25, 2025, Defendant removed the action to this Court under its diversity jurisdiction.

(Doc. No. 1.) On April 29, 2025, the Court referred this matter to Magistrate Judge Armstrong for

pretrial supervision, not including resolution of dispositive motions. (Doc. No. 4.) On May 2, 2025,

2

Defendant filed its Answer to the Complaint and its Motion to Dismiss. (Doc. Nos. 5, 6.)

In its Motion to Dismiss, Defendant sought dismissal of two claims asserted by Plaintiff: (1)

the breach of contract claim for Claim No. 054247731 arising from the wind damage loss that

occurred on July 20, 2023; and (2) Count III – Violation of Ohio Consumer Sales Practices Act.

(Doc. No. 6, PageID#s 54-55.) On May 27, 2025, Plaintiff filed his brief in opposition, to which

Defendant replied on June 3, 2025. (Doc. Nos. 10, 11.) On October 20, 2025, this Court issued an

order granting Defendant’s Motion to Dismiss. (Doc. No. 15.) As a result, only Plaintiff’s breach of

contract claim as it relates to Claim No. 058695529 (January 23, 2025) and Claim No. 057400285

(July 17, 2024) and his claim for bad faith insurance practices remain. (Id.)

On June 12, 2025, Judge Armstrong held a case management conference and ordered that all

fact discovery was to be completed by November 7, 2025 and all expert discovery was to be

completed by December 16, 2025. (Doc. No. 12.) On November 7, 2025, Defendant requested that

the fact discovery deadline be extended to December 8, 2025, and the Magistrate Judge granted this

request. (Doc. No. 19); Non-Doc dated Dec. 1, 2025.

On January 13, 2026, Defendant filed the Motion for Summary Judgment, and Plaintiff filed

the Opposition to Defendant’s Motion to Summary Judgment on January 26, 2026. (Doc. Nos. 23,

25.) That same day, Plaintiff also filed his Supplemental Notice and Update Regarding Pending

Public Records Request in Opposition to Summary Judgment. (Doc. No. 26.) On February 9, 2026,

Defendant filed its Reply in Support of Motion for Partial Summary Judgment (the “Reply”). (Doc.

No. 27.) On February 13, 2026, Plaintiff filed the Motion for Leave to File Sur-Reply and Proposed

Sur-Reply in Opposition to Defendant’s Motion for Summary Judgment (Doc. No. 28), Motion for

Leave to Supplement the Record with Public Records and for Extension of Time to File Same (Doc.

3

No. 29), and the Motion for Reasonable ADA Accommodation and Request for Extension of Time

to Respond to Defendant’s Summary Judgment Filings (Doc. No. 30). On February 27, 2026,

Defendant filed the Omnibus Memorandum in Opposition to Plaintiff’s Pending Motions

(“Opposition”). (Doc. No. 31.) On April 27, 2026, Plaintiff filed the Motion to Issue Subpoenas

(Doc. No. 32) (collectively, the “Motions”). For the reasons set forth below, this Court denies

Plaintiff’s Motions.

II. Analysis

A. Motion for Leave to File Sur-Reply (Doc. No. 28)

In the Motion for Leave to File Sur-Reply, Plaintiff argues that this Court should grant him

leave to file a sur-reply because Defendant’s Reply “(1) [r]eframes the residency issue as dispositive;

(2)[r]elies heavily on Rule 36 admissions without addressing surrounding circumstances; (3) [a]rgues

waiver of issues not fully developed in its initial motion; and (4) [s]eeks to strike Plaintiff’s

supplemental filing on procedural grounds.” (Doc. No. 28, PageID# 583) (cleaned up). Plaintiff

argues the “fundamental fairness requires that Plaintiff be permitted a brief response,” and attaches

his proposed sur-reply thereto. (Id. at PageID#s 583-86.) In its Opposition, Defendant argues that it

did not raise new arguments or present any new evidence in its Reply. (Doc. No. 31, PageID# 604.)

Rather, Defendant contends that the Reply “addressed issues squarely raised by Plaintiff’s opposition,

including policy exclusions, lack of evidence of a covered loss, Plaintiff’s non-residency at the

insured property, and the binding effect of Plaintiff’s Rule 36 admissions.” (Id.) Accordingly,

Defendant asks this Court to deny Plaintiff’s Motion for Leave to File Sur-Reply, noting that

“[e]mphasizing dispositive facts already present in the record does not justify a sur-reply.” (Id.)

This Court agrees with Defendant. “Although the Federal Rules of Civil Procedure do not

4

expressly permit the filing of sur-replies, such filings may be allowed in the appropriate

circumstances, especially ‘[w]hen new submissions and/or arguments are included in a reply brief,

and a nonmovant’s ability to respond to the new evidence has been vitiated.’” Key v. Shelby Cnty.,

551 Fed. Appx. 262, 265 (6th Cir. 2014) (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th

Cir. 2003)); accord Eldridge v. Cardif Life Ins. Co., 266 F.R.D. 173, 175 (N.D. Ohio 2010) (“This

Court grants leave to file a sur-reply to afford a party an opportunity to address new issues raised for

the first time in the reply.”). On the other hand, when a reply does not include new arguments or

evidence, a sur-reply is “an impermissible attempt to have the last word.” Attractive Surgical, LLC

v. Cleveland Clinic Found., 2019 WL 11075734, at *4 (N.D. Ohio Oct. 31, 2019).

First, as to Plaintiff’s argument that he is entitled to file a sur-reply because Defendant

“[r]eframes the residency issue as dispositive,” Defendant properly presented this argument in the

Motion for Summary Judgment, writing that “[b]ecause Plaintiff did not reside at the Property at the

time of the Claims, the Policy would not provide coverage for the Claim – even if the damages were

otherwise covered.” (Doc. No. 28, PageID# 583). Compare (Doc. No. 23, PageID# 434) with (Doc.

No. 27, PageID# 577.) Second and similarly, in the Motion for Summary Judgment, Defendant

grounds its residency argument in Plaintiff’s Rule 36 admissions. Compare (Doc. No. 23, PageID#

436) with (Doc. No. 27, PageID# 577.) So, it does not present a new argument in the Reply. In the

Motion for Leave to File Sur-Reply, Plaintiff argues that Defendant’s reliance on Rule 36 admissions

fails to account for surrounding circumstances, but Plaintiff had ample opportunity to provide context

for this argument in its Opposition and thus is not entitled to file a sur-reply to respond now. Third,

Plaintiff contends that in the Reply, Defendant “[a]rgues waiver of issues not fully developed in its

initial motion.” (Doc. No. 28, PageID# 583). Defendant’s argument as to Plaintiff’s purported failure

5

to address some of the points raised in Defendant’s Motion does not present a new argument. When

this Court adjudicates the Motion for Summary Judgment, it will review the merits of Defendant’s

waiver argument, but Plaintiff will not now be given a second bite at the apple to cure any alleged

deficiencies in his Opposition. Fourth, in the Reply, Defendant argues that this Court should

disregard Plaintiff’s Supplemental Notice (Doc. No. 26). Plaintiff’s Supplemental Notice and Update

Regarding Pending Public Records Request in Opposition to Summary Judgment was filed after

Defendant filed the Motion for Summary Judgment and as the title of the filing indicates, it was filed

in opposition to Defendant’s Motion for Summary Judgment. Thus, Defendant was correct to respond

to that filing. Defendant’s request to file a sur-reply as to that issue is moot because as this Court will

soon discuss, it declines to re-open discovery.1 Thus, for the reasons set forth above, this Court denies

the Motion for Leave to File Sur-Reply (Doc. No. 28).

B. Motion for Leave to Supplement the Record with Public Records and for Extension

of Time to File Same (Doc. No. 29) and Motion to Issue Subpoenas (Doc. No. 32)

In the Motion for Leave to Supplement the Record, Plaintiff asks that this Court grant him

leave “to supplement the record with public records [that he] recently obtained from the City of

Cleveland.” (Doc. No. 29, PageID# 587.) He states that he submitted a formal request for these

records, which related to a sewer backup at the Property on January 14, 2026. (Id.) Plaintiff also

seeks an extension of time to file these documents because he is still working with the City of

Cleveland to obtain them. (Id.) Two months after he filed the Motion for Leave to Supplement the

Record, Plaintiff filed the Motion to Issue Subpoenas, where Plaintiff asks this Court to issue

subpoenas to the City of Cleveland so that he could obtain this information.

1 Later, this Court assesses the merits of Plaintiff’s Motion for Leave to Supplemental the Record (Doc. No. 29). That

motion was filed after the Reply, so Plaintiff had ample opportunity therein to address any qualms he had as to

Defendant’s argument that this Court should disregard his Supplemental Notice.

6

Defendant did not file a response to the Motion to Issue Subpoenas, but it did respond to the

Motion for Leave to Supplement the Record. See (Doc. No. 31.) In the Opposition, Defendant argues

that Rule 56 of the Federal Rules of Civil Procedure “does not allow a party to reopen the record

simply because summary judgment has revealed the weakness of his case.” (Id. at PageID# 604)

(citing Buddenberg v. Est. of Weisdack, 711 F. Supp. 3d 712, 806 (N.D. Ohio 2024) (Calabrese, J.).

Defendant maintains that “[g]ranting this motion would prejudice Defendant by forcing it to respond

to piecemeal evidence after briefing has closed and after discovery has ended.” (Id.) For the reasons

set forth below, the Court denies Plaintiff’s Motion for Leave to Supplement the Record and the

Motion to Issue Subpoenas (Doc. Nos. 29, 32.)

This Court agrees with Defendant. Under Fed. R. Civ. P. 16(b)(4), a case management

scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ.

P. 16(b)(4). “The primary measure of Rule 16’s ‘good cause’ standard is the moving party’s diligence

in attempting to meet the case management order’s requirements.” Inge v. Rock Fin. Corp., 281 F.3d

613, 625 (6th Cir. 2002) (internal quotation marks omitted). “A court should also consider whether

the non-moving party is prejudiced by the proposed modification of a scheduling order.” Prewitt v.

Hamline Univ., 764 Fed. Appx. 524, 530 (6th Cir. 2019). “Although the Court has broad discretion

to modify its own pretrial orders, ‘[a]dherence to reasonable deadlines is ... critical to maintaining

integrity in court proceedings,’ and ... pretrial scheduling orders are ‘the essential mechanism for

cases becoming trial ready in an efficient, just, and certain matter.’”2 Progressive Cnty. Mutual Ins.

2 The Sixth Circuit considers the following five factors when determining whether a district court abused its discretion

by declining to modify a discovery schedule: “(1) when the moving party learned of the issue that is the subject of

discovery; (2) how the discovery would affect the ruling below; (3) the length of the discovery period; (4) whether the

moving party was dilatory; and (5) whether the adverse party was responsive to ... prior discovery requests.” Bentowski

v. Scene Mag., 637 F.3d 689, 696 (6th Cir. 2011) (quoting Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th

Cir. 2010)). See also Est. of Rodriguez v. United States, 722 Fed. Appx. 409, 412 (6th Cir. 2018).

7

Co. v. Goodyear Tire & Rubber Co., 2021 WL 2043192, at * 7 (N.D. Ohio May 21, 2021) (quoting

Ruiz-Bueno v. Scott, 2014 WL 347041, at *2 (S.D. Ohio Jan. 30, 2014)) (quoting Rouse v. Farmers

State Bank, 866 F. Supp. 1191, 1198-99 (N.D. Iowa 1994)).

This Court declines to re-open discovery because Plaintiff has failed to show good cause for

extending the discovery deadline. Fact discovery closed on December 8, 2025. See (Doc. No. 19);

Non-Doc dated Dec. 1, 2025. Yet Plaintiff did not request the public records from the City of

Cleveland until January 14, 2026. (Doc. No. 29, PageID# 587.) In the motion, Plaintiff does not

explain why he waited until after the close of discovery to make this request, and in his Supplemental

Notice he merely represents that he did not previously know that these records existed. (Doc. No.

26, PageID# 566.) Granting Plaintiff’s Motion for Leave to Supplement the record would prejudice

Defendant as it has already drafted and filed its Motion for Summary Judgment and according Reply.

See (Doc. Nos. 23, 27.) Furthermore, both the Motion for Leave to Supplement with the Motion to

Issue Subpoenas indicate that Plaintiff lacks access to these purportedly pivotal records and would

need a Court-issued subpoena to obtain this information, which would further prejudice Defendant

by unduly delaying the progress of this case. For these reasons, this Court finds that Plaintiff’s request

to re-open to discovery is not supported by good cause.

Plaintiff does not invoke Federal Rule of Civil Procedure 56(d) in the Motion for Leave to

Supplement the Record but does raise this argument in Plaintiff’s Supplemental Notice and Update

Regarding Pending Public Records Request in Opposition to Summary Judgment (Doc. No. 26).

Since he is proceeding pro se, this Court will examine the arguments raised in Plaintiff’s

Supplemental Notice as to whether Rule 56(d) provides a valid basis upon which he can seek

additional discovery. In Plaintiff’s Supplemental Notice, Plaintiff argues that the “municipal records

8

are highly material to the central disputed issue in this case—whether the loss was caused by a sudden

sewer backup or by long-term seepage or deterioration.” (Doc. No. 26, PageID# 565.) He contends

that he “acted promptly and in good faith by submitting this records request immediately upon

learning that City-side documentation may exist.” (Id. at 566.) This Court finds that Rule 56(d) does

not present Plaintiff with a valid basis for re-opening discovery.

Rule 56(d) provides that:

If a nonmovant shows by affidavit or declaration that, for specified reasons, it

cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take

discovery; or

(3) issue any other appropriate order. Fed. R. Civ. P. 56(d).

“The purpose behind Rule 56(d) is to ensure that plaintiffs receive ‘a full opportunity to conduct

discovery’ to be able to successfully defeat a motion for summary judgment.” Doe v. City of

Memphis, 928 F.3d 481, 490 (6th Cir. 2019) (quoting Ball v. Union Carbide Corp., 385 F.3d 713,

719 (6th Cir. 2004) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). “‘A party

invoking [the] protections [of Rule 56(d)] must do so in good faith by affirmatively

demonstrating...how postponement of a ruling on the motion will enable him...to rebut the movant’s

showing of the absence of a genuine issue of fact.’” FTC v. E.M.A Nationwide, Inc., 767 F.3d 611,

623 (6th Cir. 2014) (quoting Willmar Poultry Co. v. Morton-Norwich Prods., Inc., 520 F.2d 289, 297

(8th Cir. 1975)).3

3 The Sixth Circuit has found that, in order to receive relief under Rule 56(d), “the non-movant must file an affidavit

pursuant to Fed. R. Civ. 56(d) that details the discovery needed, or file a motion for additional discovery.” Zakora v.

Chrisman, 44 F.4th 452, 479 (6th Cir. 2022). If the nonmovant elects to file a motion, it too “must be supported by a

proper ‘affidavit or declaration.’” Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218, 226 (6th Cir.

2015) (quoting Rule 56(d)). The Sixth Circuit has noted that the filing of an affidavit “that complies with Rule 56(d) is

essential, and [ ] in the absence of such a motion or affidavit, [courts] ‘will not normally address whether there was

adequate time for discovery.’” Unan v. Lyon, 853 F.3d 279, 292 (6th Cir. 2017) (quoting Plott v. Gen. Motors Corp., 71

9

Substantively, Rule 56(d) has been interpreted as requiring a requesting party to “indicate to

the district court its need for discovery, what material facts it hopes to uncover, and why it has not

previously discovered the information.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.

2000). See also Doe, 928 F.3d at 490. “The party opposing a motion for summary

judgment...possesses no absolute right to additional time for discovery under Rule 56.” Emmons v.

McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989). For this reason, a Rule 56(d) request may be properly

denied where the requesting party “makes only general and conclusory statements [ ] regarding the

need for more discovery,” Ball, 385 F.3d at 713 (quoting Ironside v. Simi Valley Hosp., 188 F.3d

350, 354 (6th Cir.1999)), or where the affidavit (or declaration) “lacks ‘any details’ or ‘specificity.’

” Id. (quoting Emmons, 874 F.2d at 357). In addition, “’[a] district court does not abuse its discretion

in denying discovery when the discovery requested would be irrelevant to the underlying issue to be

decided.’” In re Bayer Healthcare, 752 F.3d 1065, 1074 (6th Cir. 2014) (quoting United States v.

Dairy Farmers of Am., Inc., 426 F.3d 850, 862 (6th Cir. 2005)). See also Doe, 928 F.3d at 490. The

decision on whether to grant a Rule 56(d) motion falls within the district court’s sound discretion.

See Ball, 385 F.3d at 720.

Plaintiff explains that the municipal records could be material to the case because “[a]ny city

inspections findings regarding blockages, main-line failures, lateral issues, or capacity constraints

may directly corroborate Plaintiff’s account of a sudden, accidental event and contradict Defendant’s

coverage denial.” (Doc. No. 26, PageID#s 565-66.) But Plaintiff does not appear to have access to

these purportedly pivotal documents. See (Doc. Nos. 29, 32.) Indeed, it is unclear whether the City

of Cleveland even conducted inspections in the surrounding sewers or if it did, that any such

F.3d 1190, 1196 (6th Cir. 1995)).

10

uncovered a blockage. Thus, Plaintiff’s request leaves this Court uncertain as to whether these

documents exist and if they do exist, whether they support Plaintiff’s claims. More notably, Plaintiff

does not show how or why he was prevented from unearthing this information sooner. Plaintiff

merely explains that he was previously unaware that city-side documentation would exist. See (Doc.

No. 26, PageID# 566.) Plaintiff’s lack of knowledge as to the potential existence of these documents

does not present a sufficient basis on which this Court should re-open discovery. This Court finds no

basis exists under Rule 16 or 56 of the Federal Rules of Procedure to support Plaintiff’s request for

additional discovery. Thus, this Court denies Plaintiff’s Motion for Leave to Supplement the Record

and the Motion to Issue Subpoenas (Doc. Nos. 29, 32.)

C. Motion for Reasonable ADA Accommodation and Request for Extension of Time to

Respond to Defendant’s Summary Judgment Filings (Doc. No. 30)

In the Motion for Reasonable ADA Accommodation and Request for Extension of Time to

Respond to Defendant’s Summary Judgment Filings, Plaintiff seeks “(1) [a]dditional time to prepare

and file responses to Defendant’s motions for summary judgment; (2) [f]lexibility with filing

deadlines when medically necessary; and (3) [a]ny other reasonable scheduling accommodations the

Court deems appropriate.” (Doc. No. 30, PageID# 598) (cleaned up). As support for these requests,

Plaintiff references the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., the

Rehabilitation Act, 29 U.S.C. § 794, and the United States Supreme Court’s decision in Tennessee v.

Lane, 541 U.S. 509 (2004).4 In the Opposition, Defendant argues that Plaintiff has already filed his

opposition to the Motion for Summary Judgment and points out that Plaintiff seeks “open-ended

4 This case is inapposite to this case because in Lane, one of the respondents, a paraplegic who relied on a wheelchair for

mobility, sued the State of Tennessee after he was jailed for failing to appear after he refused to crawl up the stairs to

second floor of a courthouse that lacked an elevator. 541 U.S. at 514.

11

extensions untethered to any concrete need.” (Doc. No. 31, PageID# 605.)

This Court agrees with Defendant. Plaintiff has already filed his opposition to the Motion for

Summary Judgment. See (Doc. No. 25.) He does not identify any other deadlines for which he would

need an extension in order to comply. In fact, there are no deadlines currently set in this case as those

that were set by the Magistrate Judge have passed and no pre-trial and trial deadlines have been set

while Defendant’s Motion for Summary Judgment is pending. Thus, this Court denies the Motion

for Reasonable ADA Accommodation and Request for Extension of Time to Respond to Defendant’s

Summary Judgment Filings. (Doc. No. 30.)

III. Conclusion

For the reasons contained herein, Plaintiff’s Motion for Leave to File Sur-Reply and Proposed

Sur-Reply in Opposition to Defendant’s Motion for Summary Judgment (Doc. No. 28), Motion for

Leave to Supplement the Record with Public Records and for Extension of Time to File Same (Doc.

No. 29), Motion for Reasonable ADA Accommodation and Request for Extension of Time to

Respond to Defendant’s Summary Judgment Filings (Doc. No. 30), and Motion to Issue Subpoenas

(Doc. No. 32) are denied.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: July 1, 2026 U.S. DISTRICT JUDGE

12