Professional Documents
Culture Documents
ORDER
This matter is before the court on the plaintiffs motion [92] and seeks relief from a prior
[85] order sanctioning their attorney, Carlos Moore (Moore). The court ordered Moore to
reimburse the defendants for the reasonable expenses they incurred in filing two motions to
compel. The present motion seeks three forms of relief. First, Moore claims he is entitled to
relief under Federal Rule of Civil Procedure 60(b) on the grounds of excusable neglect. In the
alternative, Moore argues that the sanctions should be set aside pursuant to Federal Rule of Civil
Procedure 59(e) to prevent manifest injustice. Finally, if the sanctions are not set aside, Moore
contends the reasonable expenses should be apportioned pursuant to Federal Rule of Civil
Procedure 37(a)(5)(C).
A. Excusable Neglect
The first issue is whether Moore should be relieved from having to pay the defendants
reasonable expenses for filing two motions to compel. The conduct for which Moore was
sanctioned traces back to November 23rd, 2016. On that date, the defendants served their first set
plaintiffs Peggy Shumpert and Charles Foster. The plaintiffs timely served Shumpert and
Fosters responses to the requests for admission. However, they did not serve their responses for
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the interrogatories or requests for production at that time. On January 11th, 2017, well after the
plaintiffs responses were due, defense counsel sent a letter demanding that the plaintiffs serve
their responses to the delinquent interrogatories and requests for production within ten days of
the letters receipt. The letter went unanswered, as did the plaintiffs extended deadline for
The defendants filed their first motion to compel on January 25th, 2017. On the heels of
that motion, the plaintiffs served their responses to the outstanding interrogatories and requests
for production. Evidently, the plaintiffs responses were inadequate in many regards, and the
parties conferred in an attempt to resolve the discovery issues without court intervention. A
resolution proved impossible, and the defendants filed their second motion to compel on
February 21st, 2017. Subsequently, the court noticed a hearing on the two motions to compel,
After hearing oral argument, the court granted the defendants motions to compel in-part
and found the defendants were entitled to reimbursement for their reasonable expenses under
Federal Rule of Civil Procedure 37(a)(5)(A). Based on his representations at the hearing, the
court also found that Moores conduct, alone, necessitated the filing of the two motions to
compel. As such, he was held solely liable for reimbursing the defendants expenses.
Moore is now seeking to avoid these sanctions under Federal Rule of Civil Procedure
60(b)(1). Under this rule, the court may relieve a party or its legal representative from a final
judgment, order or proceeding forexcusable neglect. Fed. R. Civ. P. 60(b). Moore attributes
his failure to provide complete and timely discovery responses to two unforeseen circumstances.
He claims to have received several death threats during the pertinent time period, which stem
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from another case involving the state flag of Mississippi. Moore also explains that his wife
suffered from a severe and prolonged illness around the same time.
Although sympathetic of Moores plight, the court cannot classify his failure to timely
and adequately respond to the defendants written discovery requests as excusable neglect.
While Rule 60(b) allows relief for mistake, inadvertenceor excusable neglect, these terms
are not wholly open-ended. Gross carelessness is not enough. Pryor v. U.S. Postal Service,
769 F.3d 281, 287 (1985) (citing 11 Wright and Miller, Federal Practice and Procedure 2858
at 170). Even though he received a letter from defense counsel inquiring about the tardy
discovery responses, Moore never contacted them to explain his situation or to ask for an
extension of time. Based on defense counsels representations at the hearing, a simple phone call
would have sufficed. Therefore, the court finds that Moores failure to timely and adequately
respond to the defendants written discovery requests was the product of gross carelessness, not
excusable neglect.
B. Manifest Injustice
This issue is tangential to the plaintiffs excusable neglect argument. The defendants,
in their response, contend the plaintiffs are seeking relief under the wrong rule. Because the
plaintiffs motion was filed within twenty-eight (28) days of the order it challenges, the
defendants argue that Federal Rule of Civil Procedure 59(e) is applicable, not Federal Rule of
Civil Procedure 60(b).1 In addition to reasserting their claim for relief under Rule 60(b), the
plaintiffs reply argues that they are, likewise, entitled to relief under Rule 59(e).
1
The defendants cite Towns v. NE Miss. Elec. Power Assoc., which states that if the motion for reconsideration is
filed and served within twenty-eight days of the rendition of judgment, the motion falls under Rule 59(e), and if it is
filed and served after that time, it falls under the more stringent Rule 60(b). 2011 WL 3267887, at *1 (N.D. Miss.
July 29, 2011).
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There are only three grounds for which a court may grant a motion for reconsideration
under Federal Rule of Civil Procedure 59(e): (1) an intervening change in controlling law, (2)
the availability of new evidence not previously available, and (3) the need to correct a clear error
of law or prevent manifest injustice. Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626
(S.D. Miss. 1990).2 A motion for reconsideration should not be used to give an unhappy litigant
one additional chance to sway the judge. Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D.
493, 494 (S.D. Miss. 2000). Rather, granting a motion for reconsideration is an extraordinary
measure and should be used sparingly. In re Pequeno, 240 Fed. Appx 634, 636 (5th Cir.
2007).3
For the same reasons they cited in support of their excusable neglect argument, the
plaintiffs argue that the sanctions imposed on their attorney should be set aside to prevent
manifest injustice. The court disagrees. As stated above, the court sympathizes with Moore.
Having to juggle the practice of law with death threats and an ailing family member is no small
feat. But this information was before the court when it ordered Moore to pay the defendants
reasonable expenses. The fact remains that Moore failed to communicate his circumstances to
opposing counsel, even after opposing counsel sent him a letter asking about the discovery
responses and extending his deadline to comply. The court reiterates what was stated above:
Moores failure to timely and adequately respond to the defendants written discovery requests
was the product of gross carelessness. Accordingly, the court finds that it is not manifestly
2
Citing Natural Resources Defense Council v. United States Envtl. Protection Agency, 705 F. Supp. 698, 702
(D.D.C. 1989).
3
Quoting Templet v. HydroChem, Inc., 367 F.3d 473, 477 (5th Cir. 2004).
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C. Apportionment
Pursuant to Federal Rule of Civil Procedure 37(a)(5)(C), courts have the discretion to
apportion the reasonable expenses of a motion to compel if the motion is granted-in part and
denied in-part. As Moore correctly points out, each of the defendants motions to compel was
denied in-part. Thus, the second issue is whether the court should have apportioned the expenses
The first motion was denied in-part on the grounds of mootness. That is, the plaintiffs
satisfied some of the defendants outstanding discovery requests after the first motion to compel
was filed. Notably, though, this is precisely the type of conduct Federal Rule of Civil Procedure
37 (a)(5)(A) is meant to combat, i.e., parties not complying with valid discovery requests until
under these circumstances. Allowing parties to evade sanctions by asserting the very conduct
that triggered them would wholly undermine Rule 37. Therefore, the court finds that there are no
The defendants second motion to compel sought more adequate responses to five of their
pertaining to certain wounds on the decedents body, which the plaintiffs attribute to Officer
Cooks K-9. Notably, the court only denied the defendants request because Moore represented
at the hearing that the information would be forthcoming in the plaintiffs expert reports.
However, Moore also informed the court that the allegations were partly based on the testimony
of a nurse who assisted in the decedents surgery. Because this witness was never disclosed to
the defendants, the plaintiffs were ordered to provide the defendants with all information
concerning the nurses description of the decedents injuries. Within this context, the court
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refuses to apportion the expenses incurred in filing the second motion to compel. Of the five
interrogatories placed in issue, the court denied only a fraction of one interrogatory, rendering
the apportionable expenses, if any, too trivial to quantify. Moreover, the hearing uncovered
highly relevant evidence, which fell squarely within the defendants written discovery requests,
CONCLUSION
1. Carlos Moore is not entitled to relief from paying the defendants reasonable expenses for
filing their motions to compel, including attorneys fees, under Federal Rule of Civil
Procedure 60(b)(1).
2. Carlos Moore is not entitled to relief from paying the defendants reasonable expenses for
filing their motions to compel, including attorneys fees, under Federal Rule of Civil
Procedure 59(e).
3. Although the defendants motions were granted in-part and denied in-part, the reasonable
expenses stemming therefrom shall not be apportioned between Carlos Moore and the
defendants.
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The City of Tupelo, Mississippi, Mayor Jason Shelton, in his official capacity, and Chief
Bart Aguirre, in his official capacity (these defendants) respond to the plaintiffs Motion for
1. The motion fails both from a legal perspective as well as in regard to the factual
2. The plaintiffs cite no legal authority in support of this motion, likely because there
is no legal basis to provide the relief sought. While the plaintiffs seek to travel under Rule 60(b),
this Court has noted that, [I]f the motion for reconsideration is filed and served within twenty-
eight days of the rendition of judgment, the motion falls under Rule 59(e), and if it is filed and
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served after that time, it falls under the more stringent Rule 60(b). Towns v. NE Miss. Elec.
Power Assoc., 2011 U.S. Dist. LEXIS 84119 (N.D. Miss. 2011) citing Teal v. Eagle Fleet, Inc.,
933 F.2d 341, 347 (5th Cir. 1991). Whether considered under Rule 59(e) or Rule 60(b), plaintiffs
3. A Rule 59(e) motion calls into question the correctness of a judgment. Templet
v. Hydrochem, Inc. 367 F.3d 473, 478 (5th Cir. 2004). There are three grounds for altering or
amending a judgment under Rule 59(e): (1) an intervening change in controlling law, (2) the
availability of new evidence not previously available, or (3) the need to correct a clear error of
law or prevent manifest injustice. Williamson Pounders Architects, P.C. v. Tunica Co., 681
F.Supp. 2d 766, 767 (N.D. Miss. 2008). Rule 59(e) motions are not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have been offered or raised before the
entry of judgment, Templet, 367 F.3d at 478, and they should not be used to . . . re-urge
matters that have already been advanced by a party. Nationalist Movement v. Town of Jena,
321 F.Appx. 359, 364 (5th Cir. 2009). The court noted in that same case that Rule 59(b) is an
4. The plaintiffs cite no intervening change in controlling law and cite the
availability of no new evidence not previously available. They clearly are re-urging arguments
made at the hearing, and seem to travel under the manifest injustice theory, which as will be
5. While the plaintiffs do not cite the basis on which they ask for relief under Rule
60(b), none of the five specific grounds noted in Rule 60(b) are applicable. They accordingly
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holding that such relief will be granted only if extraordinary circumstances are present. Estate
of Gray v. Dalton, 2015 U.S. Dist. LEXIS 77283 (N.D. Miss. 2015), quoting Batts v. Tow-Motor
Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995). The court in Estate of Gray went on to say that
Rule 60(b)(6) requires a showing of manifest injustice. Id.. This Court observed in Goudelock
v. McLemore, 985 F.Supp.2d 816 (N.D. Miss. 2013) that in describing the use of Rule 60(b)(6),
courts have narrowly circumscribed its availability, holding that Rule 60(b)(6) relief be granted
plaintiffs rely on are death threats alleged to have been received by plaintiffs counsel and his
wifes health. And while these defendants do not make light of anyones illness, plaintiffs
counsel has raised this issue time and time again, generally while pursuing other matters
(a) On November 15, 2016, plaintiffs counsel filed a motion for continuance in a
case pending before the Leflore County Circuit Court, making the exact
arguments made here. Attached as Exhibit 1 is a copy of the referenced motion.
(b) In another case pending in the Leflore County Circuit Court, plaintiffs counsel
moved for a modified scheduling order stating that since February of 2016 he had
received five death threats. That motion is dated October 17, 2016, and must
refer to the same five death threats referenced in the motion pending before this
Court. Attached as Exhibit 2 is a copy of the referenced motion for modified
scheduling order.
(c) During the same time the plaintiffs counsel was arguing to the Leflore County
Circuit Court that he needed relief because of the, . . . duress, anxiety, insomnia,
increased hypertension . . . (see paragraph four of Exhibit 2), he found time to
continue to hold press conferences regarding claims made in this matter.
Attached as Exhibit 3 is a media report on an October 27, 2016, press
conference held by plaintiffs counsel.
(d) Shortly prior to making representations to the Leflore County Circuit Court of his
need for relief for the same reasons set out in the pending motion, plaintiffs
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counsel argued to this Court that this action should not be stayed as had been
requested by Tyler Cook, but should instead proceed expeditiously. See,
Memorandum in Opposition to Defendants Motion to Stay Proceedings [Doc #:
17].
Finally in this respect, a review of this Courts docket will show substantial activity
undertaken by plaintiffs counsel at a time when he was representing to other courts that the
death threats and family illness for which he seeks relief herein prevented him from participating
selective in when and under what circumstances these alleged outside events affect his ability to
handle his affairs. His claims in that respect should be wholly discounted.
For the reasons set out herein, these defendants object to the plaintiffs Motion for Relief
OF COUNSEL
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CERTIFICATE OF SERVICE
I, John S. Hill, certify that on this date I electronically filed the foregoing Response to
Motion for Relief from an Order or in the Alternative a Motion for Reconsideration with the
Clerk of the Court using the ECF system which sent notification of such filing to Carlos E.
michael@herringchapmanlaw.com.
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through their counsel of record, pursuant to Fed. R. Civ, P. 60(b), and file this their
RECONSIDERATION and in support thereof would show unto the Court the following:
1) The Courts Order [85] entered on March 22, 2017 relied on Fed. R. Civ. P
37(a)(5)(A) and Fed. R. Civ. P 37(a)(5)(C) should have been controlling because
the Court granted in part and denied in part both of the Motions to Compel [49 &
64]. Using Fed. R. Civ. P 37(a)(5)(C) as guidance, the Court has more discretion
in deciding whether to impose sanctions and if imposed, the rule allows the
respondent.
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2) Also, Plaintiffs through counsel, ask the Court to take judicial notice that no other
lawyer in Mississippi likely endured five death threats from various sources as well
out of work for a month in the last quarter of 2016. The Court is asked to find
excusable neglect and no malice under the circumstances. Counsel for the
Plaintiffs simply filed a lawsuit and appeal challenging the state flag which has the
performance. The unexpected illness of counsels wife in late 2016 also put said
counsel behind in his work on behalf of several clients and has necessitated said
counsel bringing in co-counsel in this case and others. Even Rule 37 (a)(5)(A)(iii)
allows the Court to not sanction a party or counsel if other circumstances make
an award of expenses unjust. Five death threats and an unexpected illness of the
undersigned that make the award of expenses unjust in this instance. Rule 60(b)
of the Federal Rules of Civil Procedure also allows for relief from an Order because
alive and caring for a sick spouse. That would be against public policy. Neither the
Plaintiffs nor the Defendants suffered irreparable harm or undue prejudice because
August 4, 2017.
that this Honorable Court grant counsel for Plaintiffs relief from the Order [85] of
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the Court requiring Carlos Moore to pay sanctions or expenses of the Defendants
related to filing two Motions to Compel or alternatively reconsider its Order and
decide Motions [49 & 64] based on Fed. R. Civ. P 37(a)(5)(C) . Additionally, given
the simplicity of this motion, Plaintiffs respectfully request to be excused from filing
a separate memorandum of laws. Finally, Plaintiffs pray for all general relief this
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that I have this date served via the electronic
filing system and/or mailed via U. S. Mail, postage pre-paid, a true and correct copy of
the above and foregoing to the following and all counsel of record:
s/ Carlos E. Moore______________
CARLOS E. MOORE, ESQ.
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ORDER
This matter is before the court on the defendants motions [49 & 64] to compel. The first
motion was filed on January 25th, 2017 and sought an order (1) compelling the plaintiffs to fully
answer the interrogatories and requests for production served on Peggy Shumpert and Charles
Foster, (2) deeming the plaintiffs objections thereto, if any, as waived, and (3) sanctioning the
plaintiffs for the reasonable costs incurred in filing the compliance motion, including attorneys
fees. Shortly after the motion was filed, however, the plaintiffs served their unverified
responses. Having received the responses that were still later verified -- the defendants
conceded that the first two requests enumerated above were rendered moot, but they reurged
their request for sanctions and noted that the responses were inadequate because they were not
verified.
Approximately one month later, after conferring with plaintiffs counsel about what the
defendants saw as deficiencies with Peggy Shumperts responses to the interrogatories and
requests for production, the defendants filed their second motion to compel. According to their
second motion, several of Peggy Shumperts responses are unresponsive and defer to a forensic
expert analysis that has yet to be completed. Moreover, in light of several highly charged and
well-publicized statements made to the press, the defendants argue they are entitled to the
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evidence upon which these public statements are founded. The defendants are also seeking the
For the reasons announced on the record by the court during the March 21st, 2017
1. The defendants motion [49] to compel is granted in part. Because the plaintiffs served
their responses to the defendants discovery requests after the motion to compel was
filed, the court is bound by the Federal Rules of Civil Procedure to impose sanctions on
the plaintiffs and/or their attorney.1 Based on the testimony presented by Carlos Moore
at the hearing, it appears that his own conduct, and not that of the plaintiffs he represents,
necessitated the filing of the defendants first compliance motion. Accordingly, Carlos
Moore shall be solely liable for the sanctions imposed herein. The defendants are
instructed to submit to the court a detailed list of the expenses, including attorneys fees,
2. The defendants motion [64] to compel responses to interrogatories is, likewise, granted
in part. Unless stated otherwise, the plaintiffs shall provide the defendants with their
consistent with the testimony provided by Carlos Moore at the hearing, which
includes any evidence the plaintiffs relied upon in alleging that the decedent tried
to voluntarily surrender when he heard Officer Cook and his K-9 approach, as
well as any documents or evidence that have been submitted to the plaintiffs
1
[I]f therequested discovery is provided after the motion [to compel] was filedthe court must, after giving an
opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movants reasonable expenses in making the motion, including attorneys
fees. Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).
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expert for review. Furthermore, Carlos Moores testimony indicated most, if not
all, of the evidence buttressing this allegation stems from an anonymous phone
provide a detailed description of this phone call in their response, including: (1)
the date and time of the call, (2), the phone number of the anonymous caller, (3)
an affidavit from the brother-in-law specifying what exactly was said during the
call, and (4) a statement as to what attempts were made to identify and follow-up
the expert report. Nevertheless, Carlos Moore indicated that a nurse assisting
with the decedents surgery contacted the plaintiffs and described the nature of his
injuries, including a gaping wound to the decedents groin. The plaintiffs are
instructed to turn over any information concerning the nurses description of the
consistent with the testimony provided by Carlos Moore at the hearing, which
includes any evidence the plaintiffs relied upon in alleging that while the decedent
was trying to defend against total annihilation by the K-9, Officer Cook shot the
decedent four times, punched him in the face, and kicked or stomped him in the
mouth, as well as any documents or evidence that have been submitted to the
plaintiffs expert for review. During the hearing, Carlos Moore stated that the
evidence the plaintiffs had to support this claim was a phone call from an
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provide to the defendants the information related to this call described under
Interrogatory seven supra and any additional evidence they may have.
d. Interrogatory No. 11: This interrogatory pertains to the plaintiffs allegation that
the defendants violated the decedents constitutional rights via official policies
and customs and that said policies, customs, patterns and/or practice were the
related note, Carlos Moore was quoted in an article as stating the following:
Black lives do not matter in TupeloWhen you are black or brown, (the police)
are trigger happy. They sent out a memo to certain parts of the white community
that it was open season on blacks. During Carlos Moores testimony at the
shall state that Moore knew of no such memo when his statements were
published.
e. Interrogatory No. 12: The plaintiffs are instructed to respond to this interrogatory
consistent with the testimony provided by Carlos Moore at the hearing, which
includes any evidence the plaintiffs relied upon in alleging that the decedents
right to due process was violated as a result of being denied prompt medical care.
During the hearing, Carlos Moore stated that the plaintiffs were relying on a
fifty (50) minutes after the decedent was shot. This evidence shall be included in
f. Interrogatory No. 14: The plaintiffs are instructed to provide the decedents work
history for the ten (10) years preceding the decedents death. Their response shall
include the following details: (1) the name of each business with whom he was
employed, (2) the capacity for each job he held, (3) the name, number and address
for each of his immediate supervisors, and (4) the reasons why he left each job.
The plaintiffs shall also provide the defendants with the decedents tax returns for
the past five (5) years. If the plaintiffs cannot secure the decedents tax returns by
March 31st, 2017, they are instructed to provide the court with a copy of a
subpoena served on the Internal Revenue Service for the decedents tax returns no
has been granted, the court is bound by the Federal Rules of Civil Procedure to
appears that his own conduct, and not that of any of the plaintiffs he represents,
Moore shall be solely liable for the sanctions imposed herein. The defendants are
3. During the hearing, the defendants made an ore tenus motion to be released from a
previous order requiring them to maintain the K-9s remains in a refrigerated facility at
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Mississippi State University. Consistent with the courts ruling at the hearing, the
defendants request is hereby denied, and they remain responsible for preserving the K-
V. CAUSE NO.:1:16cv120-SA-DAS
COMES NOW Plaintiffs, Peggy Shumpert, individually, and on behalf of the heirs and
wrongful death beneficiaries of Antwun Ronnie Shumpert, Sr., deceased, and Charles Foster,
by and through their counsel of record, and files this, Plaintiffs Response in Opposition to
Motion of City of Tupelo, Mississippi, Mayor Jason Shelton, in his Official Capacity, and Chief
Bart Aguirre, in his Official Capacity, to Compel Plaintiff Peggy Shumpert to Provide
Defendants Motion and request a hearing on said Motion, as grounds therefore, would state as
follows:
1. This matter arises out of an incident that occurred on June 18, 2016, in which Antwun
Shumpert suffered fatal injuries from a brutal attack by two law enforcement officers
1
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(one male and one K-9) employed with the Tupelo Police Department in Tupelo,
2. On June 30, 2016, Plaintiffs, including Peggy Shumpert (Plaintiff Shumpert), widow of
3. On or about November 23, 2016, Defendants, The City of Tupelo, Mississippi, Mayor
Jason Shelton, in his official capacity, and Chief Bart Aguirre, in his official capacity,
served their First Set of Interrogatories, Request for Production of Documents and
the Heirs and Wrongful Death Beneficiaries of Antwun Ronnie Shumpert, Sr.,
Deceased and First Set of Interrogatories, Request for Production of Documents and
4. On December 12, 2016, Plaintiffs served their Responses to Requests for Admission.
5. On January 25, 2017, Plaintiffs filed their Responses to First Set of Interrogatories,
6. Federal Rule of Civil Procedure 33(b)(3) states, [e]ach interrogatory must, to the extent
it is not objected to, be answered separately and fully in writing under oath. Further,
Federal Rule of Civil Procedure 26(e) allows supplementation when the information
discovery.
with sufficient responses and any information not provided will be timely supplemented.
Plaintiff Shumperts discovery responses were not submitted in bad faith or a tool to
2
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thwart the discovery process. Further, support of Plaintiff Shumperts contentions will be
Motion of City of Tupelo, Mississippi, Mayor Jason Shelton, in his Official Capacity, and
Chief Bart Aguirre, in his Official Capacity, to Compel Plaintiff Peggy Shumpert to
will deny Defendants Motion. Plaintiffs also pray for all other general relief this Court deems to
s/ Carlos E. Moore
__________________________________
CARLOS MOORE, MSB #100685
OF COUNSEL:
TUCKER MOORE LAW GROUP
306 Branscome Drive
Grenada, Mississippi 38901
Telephone: 662-227-9940
Facsimile: 662-227-9941
Carlos@TuckerMooreLaw.com
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing pleading was transmitted
s/ Carlos E. Moore
______________________________
Carlos Moore, MSB #100685
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The City of Tupelo, Mississippi, Mayor Jason Shelton, in his official capacity, and Chief
Bart Aguirre, in his official capacity (these defendants) move the Court to compel Peggy
Requests for Production of Documents and Requests for Admission on November 23, 2016.
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served her untimely and unverified responses to these defendants interrogatories and document
3. Counsel for these defendants has written and conferred with counsel for the
plaintiffs regarding the alleged inadequacies of the plaintiffs response to these defendants
written discovery as set out hereinbelow without a resolution of the dispute. Attached hereto as
Exhibit 1 is a copy of counsels Good Faith Certificate submitted pursuant to L.U.Civ.R. 37(a).
underlying event giving rise to this action was well publicized, and counsel for the plaintiffs
made repeated claims that he alleged were factually based and that were published in the local
media and other media, including The New York Times, regarding the basis of claims made by
the Shumpert family. Included in statements made by plaintiffs counsel to the media for public
a. He [Shumpert] ran from the police, but he did not attack the officer or the
K-9. said Moore during the press conference at Tupelo City Hall. Was
the K-9 not well-enough trained to handle an unarmed 37 year-old man? . .
. .
b. Black lives do not matter in Tupelo, Moore said. When you are black
or brown (the police) are trigger happy. They sent out a memo to certain
parts of the white community that it was open season on blacks.
d. The police shot Ronnie four or five times, or said. It was a modern day
lynching. It was simply an execution.
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f. Moore also said he has consulted his own forensic pathologist who
believes that the wounds on Shumperts body, including his back, are
consistent with a dog attack.
g. Witnesses also exist that can corroborate the version of events as told by
Moore, the attorney claims.
i. This from The New York Times: They have declared open season on us,
and they are killing with impunity, said Mr. Moore, who is black.
Attached hereto as cumulative Exhibit 2 are copies of the media reports on the referenced
Basis for motion to compel: Plaintiffs counsel has stated publicly and repeatedly that Shumpert
tried to surrender voluntarily and came from his hiding place as he heard Officer Cook approach,
and has said that he has eyewitnesses who support that claim. Either Peggy Shumpert should be
required to provide the information sought by this interrogatory or state plainly that she has no
factual basis to support that claim, can identify no one on whom she relies to support that claim
and can identify no documents on which she relies to support that claim.
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his flesh leaving a gaping hole at least six inches deep in his groin and
nearly mutilating his testicles after shredding his scrotum. You allege
further that the K-9 also severely clawed Shumpert on his back and
inflicted other injuries and bruises to the person of Antwun Shumpert.
State the factual basis of your claim in that regard, identify all persons on
whom you rely to support that claim and identify all documents on which
you rely to support that claim.
Basis of motion to compel: Plaintiffs counsel has alleged publicly and repeatedly that Shumpert
attempted to voluntarily surrender, and that the K-9 viciously attacked him, biting him in the
groin and severely clawed Shumpert on his back. Peggy Shumpert should be required to either
provide the information sought by this interrogatory or admit that she has no factual basis for
these claims, can identify no person on whom she relies to support these claims and can identify
You allege in the complaint that while Shumpert was trying to defend
himself against total annihilation by the K-9, Officer Tyler Cook
approached Shumpert and shot him four times, punched Shumpert in the
face and kicked or stomped Shumpert in the mouth knocking four of his
bottom teeth backwards toward his throat. State the factual basis of your
claim in that regard, identify all persons on whom you rely to support that
claim and identify all documents on which you rely to support that claim.
Basis of motion to compel: Similar to Interrogatories 7 and 8, after all this time and much self-
generated publicity, Peggy Shumpert should be compelled to either answer this interrogatory or
admit that she has no factual basis to support these claims, can identify no persons on whom she
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relies to support these claims and can identify no documents on which she relies to support these
claims.
Basis of motion to compel: Plaintiffs counsel has stated repeatedly and publicly that the Tupelo
Police Department had declared open season on African-Americans and violated Shumperts
constitutional rights. Peggy Shumpert should now be required to either answer this interrogatory
or admit that she has no factual basis for these claims, can identify no persons on whom she
relies to support these claims and can identify no documents on which she relies to support these
claims.
You allege in the complaint that Shumperts right to due process was
denied as a result of being denied prompt medical care. State the factual
basis of your claim in that regard, identify all persons on whom you rely to
support that claim and identify all documents on which you rely to support
that claim.
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Basis of motion to compel: Plaintiffs attorney stated repeatedly and publicly that Shumpert
was not given prompt medical care following the shooting. Peggy Shumpert should be required
to either answer this interrogatory or admit that there is no factual basis to this claim, that she can
identify no persons on whom they rely to support this claim and can identify no documents on
Identify each of the employers of Antwun Ronnie Shumpert, Sr., for the
ten years immediately preceding his death, state in what capacity
Shumpert was employed at each such place of employment, identify
Shumperts immediate supervisor at each such place of employment and
state the reasons why Shumpert left the employ of each such employer.
Plaintiffs name: Uncle Lil Joe Construction; Plaintiffs reserve the right to
supplement this response.
Basis of Motion to Compel: The plaintiffs seek lost income as an element of damage. Their
11. The event giving rise to this legal action occurred on June 18, 2016. Following a
series of repeated inflammatory claims and allegations by plaintiffs counsel, which continued
after this action was filed, the complaint in this action was filed on June 30, 2016. These
defendants seek through discovery the factual basis of the plaintiffs claims made repeatedly and
publicly against them and the identity of all persons and documents on which the plaintiffs rely
to support those claims. Either Peggy Shumpert has a factual basis for these claims and can
identify persons and documents on which she relies to support these claims or she cant. If she
can, she should be required to do so. If she cant, she should be required to say that she cant.
appropriate, here the plaintiffs attorney has repeatedly and publicly made allegations based on
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self-proclaimed factual rhetoric. The plaintiffs should not be allowed to dodge basic discovery
13. In addition to all of the foregoing, Peggy Shumperts responses were more than a
month delinquent and remain unverified. The responses accordingly should be stricken.
OF COUNSEL
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CERTIFICATE OF SERVICE
I, John S. Hill, certify that on this date I electronically filed the foregoing Motion of City
of Tupelo, Mississippi, Mayor Jason Shelton, in His Official Capacity, and Chief Bart Aguirre,
Interrogatories with the Clerk of the Court using the ECF system which sent notification of such
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MOTION TO COMPEL
The City of Tupelo, Mississippi, Mayor Jason Shelton, in his official capacity, and Chief
Bart Aguirre, in his official capacity (these defendants) move the Court pursuant to Rule 37 of
the Federal Rules of Civil Procedure to enter an order compelling the plaintiffs to fully answer
each interrogatory and request for production of document propounded to them by these
defendants, to include in that order a declaration that any objections to these defendants
interrogatories and requests for production of documents have been waived by the plaintiffs and
to assess costs, including attorneys fees, incurred by these defendants in seeking this relief. In
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Requests for Production of Documents and Requests for Admission Propounded to Peggy
Shumpert, Individually and on Behalf of the Heirs and Wrongful Death Beneficiaries of Antwun
Ronnie Shumpert, Sr., Deceased on November 23, 2016 (written discovery to Shumpert).
Requests for Production of Documents and Requests for Admission Propounded to Charles
4. Both Shumpert and Foster, through counsel, served responses to these defendants
5. Neither Foster nor Shumpert have responded to interrogatories and requests for
6. The undersigned counsel for these defendants wrote counsel for the plaintiffs on
January 11, 2017, in an effort to confer in good faith pursuant to Local Rule 37 regarding the
plaintiffs failure to respond to these defendants interrogatories and requests for production of
documents. Attached hereto as Exhibit 3 is a copy of the referenced January 11, 2017, letter,
and attached as Exhibit 4 is a copy of the undersigneds Affidavit detailing the lack of
7. The plaintiffs still have not responded to these defendants interrogatories and
requests for production of documents, which makes it a practical impossibility for these
defendants to adequately defend claims asserted against them and operates as actual prejudice to
these defendants.
8. Consistent with the general rule that when a party fails to object timely to
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interrogatories, production requests, or other discovery efforts, objections thereto are waived,
these defendants ask the Court to include in its order not only that the plaintiffs be compelled to
answer the outstanding interrogatories and requests for production of documents, but also that
any objection to these written discovery requests has been waived. See, e.g., Estate of Eva Boles
v. National Heritage Realty, Inc., 2010 U.S. Dist. LEXIS 79770 (N.D. Miss. 2010).
9. This case is set for trial beginning December 4, 2017, and a Case Management
Order has been entered setting a deadline for the defendants to designate expert witnesses of
April 18, 2017 and establishing a deadline for completion of discovery of June 20, 2017. As
stated hereinabove, these defendants are prejudiced by the plaintiffs failure to timely respond to
written discovery.
For the reasons set out herein, and as stated in the accompanying Memorandum of
Authorities in Support of Motion to Compel, these defendants seek entry of an order directing
the plaintiffs to respond immediately to each outstanding interrogatory and request for
production of document, finding that all objections to these interrogatories and document
requests have been waived and to award appropriate sanctions consistent with Rule 37 of the
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OF COUNSEL
CERTIFICATE OF SERVICE
I, John S. Hill, certify that on this date I electronically filed the foregoing Motion to
Compel with the Clerk of the Court using the ECF system which sent notification of such filing
to the following:
carlos@carlosmoorelaw.com jason@jherringlaw.com
Carlos E. Moore, Esq. Jason D. Herring, Esq.
Moore Law Group, P.C. Herring Chapman, PA
Post Office Box 1487 Post Office Box 842
Grenada, MS 38902-1497 Tupelo, MS 38802
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Notice is hereby given that on the date entered below City of Tupelo, Mississippi, Mayor
Jason Shelton, in his official capacity, and Chief Bart Aguirre, in his official capacity, have this
date served its First Set of Interrogatories, Requests for Production of Documents and Requests
for Admission Propounded Peggy Shumpert, Individually and on Behalf of the Heirs and
The undersigned counsel of record retains the original of these discovery documents as
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OF COUNSEL
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CERTIFICATE OF SERVICE
I, John S. Hill, certify that on this date I electronically filed the foregoing Notice of
Service of Discovery with the Clerk of the Court using the ECF system which sent notification of
carlos@carlosmoorelaw.com jason@jherringlaw.com
Carlos E. Moore, Esq. Jason D. Herring, Esq.
Moore Law Group, P.C. Herring Chapman, PA
Post Office Box 1487 Post Office Box 842
Grenada, MS 38902-1497 Tupelo, MS 38802
Counsel for Plaintiffs Counsel for Tyler Cook
/s/John S. Hill
JOHN S. HILL
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Plaintiffs), by and through their attorney of record, and file this, their AMENDED
PARTIES
County, Mississippi. She brings suit on behalf of the wrongful death beneficiaries
of Antwun Ronnie Shumpert, Sr., (Decedent), for the negligent actions that
caused his death. The Chancery Court of Lee County entered an Order on January
23, 2017, opening the Estate of Antwun Shumpert, Sr., appointing Administrator,
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and granting Letters of Administration. The Estate of Antwun Shumpert, Sr. by and
County, Mississippi.
may be served with process by service upon Kim Hannah, City Clerk, at the office
of the City Clerk, located at 71 East Troy Street, Tupelo, Mississippi 38804.
resident citizen of Mississippi, employed with the City of Tupelo, can be served
with process at Tupelo City Hall, located at 71 East Troy Street, Tupelo, Mississippi
38804.
citizen of Mississippi, employed with the City of Tupelo Police Department, and
can be served with process at 118 Lemons Drive, Tupelo, Mississippi 38801.
citizen of Mississippi, employed with the City of Tupelo Police Department, and
can be served with process at 118 Lemons Drive, Tupelo, Mississippi 38801.
7. Defendant John Does 1-10 (hereinafter Defendant Does 1-10) are adult resident
citizens of Mississippi, employed with the City of Tupelo Police Department whose
true identities are currently unknown, and can be served with process at 118
JURISDICTION
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8. This Court has jurisdiction over the subject matter herein pursuant to the provisions
9. This Court has subject matter jurisdiction pursuant to 28 USC 1331, as the events
VENUE
10. Venue is proper in this Court pursuant to Section 11-11-13 of the Mississippi Code
of 1972, annotated, as amended, in that the incidents which gave rise to these
claims occurred in Lee County, Mississippi, which is located within the Northern
District of Mississippi.
UNDERLYING FACTS
11. On or about June 18, 2016, Antwun Ronnie Shumpert, Sr. around 9:30 pm was
driving a vehicle owned by his teammate and friend, Charles Foster, with Charles
Foster sitting in the passenger seat. Shumpert and Foster were driving to a store
to pick up a shirt for Foster to wear a party that night. While obeying all rules of the
road and driving near the Lee Acres subdivision in Tupelo a police cruiser driven
by an officer from the City of Tupelo Police Department flashed its blue lights after
following Shumpert for a short distance. Shumpert pulled over the Foster vehicle
and immediately fled the vehicle, running behind several houses in the Lee Acres
subdivision.
12. After Shumpert fled, Officer Tyler Cook and his city assigned K9 gave immediate
chase, not knowing who they were chasing or why. Shumpert initially hid from the
police but eventually tried to surrender voluntarily and come from his hiding place
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the K9 viciously attacked Shumpert, biting him in the groin, ripping his flesh leaving
a gaping hole at least six inches deep in his groin, and nearly mutilating his testicls
after shredding his scrotum. Said K9 also severely clawed Shumpert on his back
and inflicted other injuries and bruises to the person of Antwun Shumpert. Mr.
Shumpert tried to defend himself against the unlawful, excessive, and vicious
attack of the K9. While trying to defend himself against total annihilation by the K9,
Officer Tyler Cook approached the unarmed Shumpert and shot him four times,
three times to the chest and once in the abdomen. Cook also punched Shumpert
in his face and kicked or stomped Shumpert in the mouth knocking four of his
bottom teeth back towards his throat. This all occurred less than 10 minutes after
the initial traffic stop and Shumpert was placed in handcuffs by Cook after the
vicious attack and shooting while Shumpert laid in a pool of blood. The initial traffic
stop was not lawful as no probable cause existed for the stop and to this day no
one with the City of Tupelo has advised Shumpert or Foster as to the reason for
the traffic stop. Shumpert and Plaintiff Foster were the victims of racial profiling.
Cook did not even know the identity of the individual he was chasing and had no
knowledge at the time of any outstanding warrants Shumpert may or may not have
had. Neither did Cook have any reason to believe that Shumpert was armed and
dangerous. In fact, Shumpert has never been charged with, indicted, or convicted
13. Subsequently, an ambulance was eventually called to the scene, and Antwun
Fathers Day, June 19th, around 1:20 a.m., leaving a wife and five children to mourn
his loss.
14. As for Charles Foster, he was detained unlawfully for an extended period of time
by officers of the City of Tupelo police department, wrongly arrested and placed in
handcuffs which were too tight causing extreme pain, transported to the city jail,
and finally released with no charges filed against him. All of this after he heard his
friend and teammate fatally shot four times by the police for simply fleeing from
them. Foster has suffered and continues to suffer extreme emotional distress and
15. As a result of the foregoing, Plaintiffs were caused to suffer physical, mental,
COUNT ONE
16. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and
statements.
17. The Plaintiffs allege that Defendant City of Tupelo, Shelton, and Aguirre are liable
for violating Antwun Shumpert and Charles Fosters constitutional rights, pursuant
to 1983, as said governmental entity and officials violated decedent and Fosters
constitutional rights via official policies or customs, of which said Defendants had
own interests and reputations, to the disregard and detriment of Plaintiffs and
decedent.
19. As a direct and proximate result of Defendants acts or reckless disregard and
sustained the damages set forth herein and all damages that will be proved at trial
hereon.
COUNT TWO
20. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and
statements.
21. The Defendant Tyler Cook is liable for civil assault and battery. The Plaintiffs allege
that Tyler Cook inflicted extreme physical pain and inhumane torture upon Antwun
Shumpert by attacking him with a vicious K9 and shooting him four times with a
pistol as well as other bodily assault and battery, causing harm to his person and
Plaintiffs to suffer from extreme emotional distress and mental anguish, anxiety,
22. One or more of the Defendants is liable for civil assault and battery as it relates to
Charles Foster for causing him pain by putting him in handcuffs which were too
tight and unlawful, causing him unnecessary bodily injury and pain.
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sustained the damages set forth herein and all damages that will be proved at trial
hereon.
COUNT THREE
24. The Plaintiffs incorporate and adopts all prior paragraphs, averments, and
statements.
25. Plaintiffs would show unto the Court that the Defendants intentionally, recklessly,
and/or negligently took actions to deprive Antwun Shumpert and Charles Foster of
their due process, equal dignity, and equal protection rights pursuant to the 14
Amendment, and violated other of their civil rights under federal laws and the
United States Constitution, including violating their 4th Amendment right to be free
26. The Plaintiffs suffered damages as a result of the aforementioned conduct as set
27. Antwun Shumperts right to due process was denied and he suffered damages as
a result of being denied prompt medical care by Cook or other medical trained
officers after he was attacked and shot. There was also an unreasonable and
unconstitutional delay of medical care as Tyler Cook did not immediately call for
an ambulance after he shot and beat Antwun Shumpert and ordered and allowed
28. Plaintiffs would show unto the Court that the Defendants acted with deliberate
indifference to Mr. Shumperts immediate need for medical care in violation of his
COUNT FOUR
EXCESSIVE FORCE
29. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and
statements.
30. Plaintiffs would show unto the Court that the Defendants took actions to deprive
Mr. Shumpert and Plaintiff Foster of their Fourth Amendment protection against
excessive force.
31. The force used by officers employed by the City of Tupelo was excessive to the
COUNT FIVE
WRONGFUL DEATH
32. The Plaintiffs re-allege and incorporate each and every preceding paragraph as if
34. As a direct and proximate result of the foregoing, and the death of Antwun Ronnie
Shumpert, Sr., Plaintiff Peggy Shumpert as well as the five children of Antwun
Ronnie Shumpert have been deprived of their kind and loving husband and
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fathers, Antwun Ronnie Shumpert, Sr., care, comfort, society, protection, love,
and/or physical assistance in the operation and maintenance of the home. Ronnie
also experienced pre-death pain and suffering prior to expiring from the dog bites,
body blows, and gunshot wounds he sustained at the hands of one or more
Defendants.
COUNT SIX
35. The Plaintiffs re-allege and incorporate each and every preceding paragraph as if
36. The Plaintiffs are entitled to, and hereby request, and injunction prohibiting the
Defendants from committing conduct of the like, kind, character and nature as that
demonstrated and described in this complaint at any time in the future within the
jurisdiction of the United States District Court for the Northern District of
COUNT SEVEN
GENERAL NEGLIGENCE
37. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and
statements.
38. The Plaintiffs allege that the Defendant Officers, in their Individual Capacities,
breached their duty of ordinary care, and proximately caused Plaintiffs injuries.
39. As a direct and proximate result of Defendants negligence, the Plaintiffs sustained
the damages set forth herein and all damages that will be proved at trial hereon.
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COUNT EIGHT
40. The Plaintiffs re-allege and incorporate each and every preceding paragraphs as
41. Defendant City and Defendant Chief were grossly negligent and/or wanton in
failing to monitor the actions of the officers involved. Defendant City and Defendant
or arrest Michael McDougle, Sr., and other similarly situated individuals. Defendant
City and Chief negligently and/or wantonly failed to properly followed and/or apply
its own municipal and law enforcement rules, ordinances, regulations, policies and
procedures, as well as state law generally. Defendants City and Chief negligently
hired and/or retained the officers involved, agents, and/or employees, having
42. Defendants Citys and Defendant Chiefs policy and/or custom of encouraging
and/or ratifying police brutality, and their failure to properly train city police
reckless, and/or intentional acts and/or omissions, the Plaintiffs sustained the
damages set forth herein and all damages that will be proved at trial hereon.
COUNT NINE
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44. The Plaintiffs incorporate and adopt all prior paragraphs, averments, and
statements.
45. Plaintiffs allege that the Defendants, with reckless disregard, inflicted extreme
emotional distress upon Plaintiffs mind, spirit, and body. By condoning and/or
ratifying the acts of the officers involved, the Defendants have caused Plaintiffs to
47. As a direct and proximate result of Defendants acts of reckless disregard, the
Plaintiffs sustained the damages set forth herein and all damages that will be
48. Plaintiffs incorporate and adopt all prior paragraphs, averments, and statements.
49. As a result of the acts of the Defendants named herein whether intentional, as a
the safety and well-being of decedent and/or Foster, Plaintiffs have suffered severe
damages for which the Defendants should be held jointly and vicariously liable.
50. All Defendants are jointly and severally liable to the Plaintiffs for the following
damages: past, present and future pain, suffering and mental and emotional
anguish; past, present and future loss of mobility and capacity; loss of enjoyment
of lifes normal activities; loss of society, lost wages, loss of wage earning capacity,
51. The Plaintiffs bring this action against all Defendants and demand judgment and
52. The acts of the Defendants enumerated herein were so grossly negligent and
reckless; utterly offensive; and were committed with such utter disregard for the
damages to be determined by the Court, with this amount being sufficient to deter
pray for judgment against all Defendants including compensatory damages, Veasley
damages, punitive damages, and injunctive relief, any and all damages allowed by federal
law, attorneys fees, pre-judgment interest, post judgment interest, and all costs of this
RESPECTFULLY SUBMITTED,
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that I have this date served via electronic filing
system and/or mailed via U.S. Mail, postage pre-paid, a true and correct copy of the above
and foregoing to the following: