govinfo:USCOURTS-kywd-5_18-cv-00041-1

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
AT PADUCAH 
CIVIL ACTION NO. 5:18-CV-041-TBR 
 
GALE CARTER, et al.                      P L A I N T I F F S  
 
v. 
 
PASCHALL TRUCK LINES, INC., et al.               DEFENDANTS 
 
 
MEMORANDUM OPINION AND ORDER 
 This matter is before the Court on Defendant Element Transportation, LLC’s (“Element 
Transportation”) Motion for Summary Judgment. [R. 98.] Plaintiffs Gale Carter and Forbes 
Hayes (hereinafter “Plaintiffs”) responded, [R. 110], and Element Transportation replied, [R. 
113]. Also before the Court is Plaintiffs’ Motion for Leave to File a Sur-Reply. [R. 119.] This 
matter is now ripe for adjudication. For the reasons stated herein, Element Transportation’s 
Motion for Summary Judgment, [R. 98], is GRANTED and Plaintiffs’ Motion for Leave to File 
a Sur-Reply, [R. 119], is DENIED. 
BACKGROUND 
 This case arises out of Gale Cart er and Forbes Hayes’s previous employment as truck 
drivers for Paschall Truck Lines, Inc. (“PTL”). In short, Element Financial Corp. (“EFC”) leased 
tractor trailers to Plaintiffs who then subleased the tractor trailers and their driving services to 
PTL. [See R. 98-4 at 6-7 (Carter’s Responses to Request for Admissions); R. 98-6 at 6 (Hayes’s 
Responses to Request for Admissions).] Plaintiffs claim that this arrangement was represented to 
them as a “Lease-Purchase Program.” [R. 103 at 16 (Amended Complaint).] Specifically, 
Plaintiffs claim that as a condition of their employment for PTL, PTL required Plaintiffs to lease 
tractors from EFC, and, under the lease agreement with EFC, Plaintiffs could only drive for PTL. 
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[Id. at 8.] If they did not drive for PTL, the Plaintiffs claim that they would default on their Lease 
Agreements, “subjecting Plaintiffs to an acceleration clause whereby Plaintiffs would be required 
to pay the entire balance of the lease immediately.” [Id. at 9] However, this motion does not 
concern the substance of Carter and Hayes’s claims. Rather, it involves the question of who 
should be held liable.  
 On October 20, 2015, Gale Carter e ntered in to an Individual Program Lease Agreement 
with EFC. [R. 98-3 at 2 (Carter Individual Program Lease Agreement).] That agreement 
terminated in December of 2015. [R. 98-4 at 7.] On March 18, 2016, Forbes Hayes entered into 
an Individual Program Lease Agreement with EFC. [R. 98-5 at 2 (Hays Individual Program 
Lease Agreement).] Hays discontinued his lease agreement in June of 2016. [R. 110-2 at 3 
(Plaintiffs’ Statement of Facts); R. 98-1 at 6.]  
 On June 30, 2016, EFC became Element Financial, LLC. [R. 110-1 1 at 3 (Certificate of 
Conversion).] Element Financial, LLC continued to operate the commercial and vendor leasing 
business it had previously operated as EFC. [R. 110-2 at 4; R. 98-1 at 6.] On September 19, 
2016, a transaction occurred between Element Financial, LLC and Element Transportation, LLC, 
another subsidiary of Element Financial, LLC’s parent company—Element Financial 
Corporation. [R. 110-19 at 67:17-21 (Bradley Rowse Deposition); R. 110-2 at 4; R. 98-1 at 7.] 
Plaintiffs refer to a different agreement than Element Transportation, but both parties claim the 
document to which they refer represents the transaction of September 19, 2016. Plaintiffs 
provided the Asset Purchase Agreement as evidence that Element Financial, LLC transferred the 
trucks and the rights to receive lease payments on those trucks to Element Transportation on that 
date. [R. 110-2 at 4 (citing R. 110-14).] Element Transportation provided the SUBI Sale 
Agreement, of the same date, as evidence that Element Financial, LLC sold Element 
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Transportation “a special unit of beneficial interest in certain vehicles held in trust, including the 
vehicles previously leased by the Plaintiffs.” [R. 98-1 at 7 (citing R. 98-8).]   
On October 3, 2016, Element Financial Corporation split to form ECN Capital Corp. and 
Element Fleet Management Corporation. [R. 110-19 at 49:12-18; R. 98-1 at 7.] As a part of the 
split, Element Financial, LLC became ECN Financial, LLC (ECN). [R. 110-19 at 49:12-18; R. 
98-1 at 7; R. 110-2 at 5.] Plaintiffs states that, with that name change, ECN Financial, LLC was 
divested from Element Fleet Management Corporation and became a subsidiary of ECN Capital 
Corp. [R. 110-2 at 5.] Element Transportation, on the other hand, became a subsidiary of 
Element Fleet Management Corporation. [R. 110-19 at 40:16-41:7.]  
On December 30, 2016, Element Transportation assigned its interests in the trucks and 
accompanying leases to ECN Financial, LLC as interim assignee and 19th Capital Group, LLC 
as assignee. [R. 98-9 at 1 (Assignment Agreement).] In exchange, Element Transportation 
received an approximately 49.9995 percent equity interest in 19th Capital Group and a loan 
receivable—with an initial balance of approximately $740 million. [R. 110-19 at 67:24-69:2.]  
On December 19, 2017, Gale Carter and Forbes Hayes, on behalf of themselves and those 
similarly situated, filed the First Amended Complaint against PTL, ECN (as successor to EFC), 
and Element Transportation, LLC (as successor to ECN). [R. 19.] On October 12, 2018, Element 
Transportation filed the Motion for Summary Judgment that is currently before the Court. [R. 
98.] It raises the question of whether Element Transportation should be considered a successor in 
liability to Element Financial, LLC.   
LEGAL STANDARD 
Summary judgment is appropriate when the record, viewed in the light most favorable to 
the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the 
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movant is entitled to judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  A genuine dispute of 
material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to 
return a verdict for that party.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  The 
Court “may not make credibility determinations nor weigh the evidence when determining 
whether an issue of fact remains for trial.”  Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th 
Cir. 2014) (citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil, 
188 F.3d 365, 369 (6th Cir. 1999)).  “The ultimate question is ‘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.’”  Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 
2012) (quoting Anderson, 477 U.S. at 251–52).   
As the party moving for summary judgment, the defendant must shoulder the burden of 
showing the absence of a genuine dispute of material fact as to at least one essential element of 
the plaintiff’s claims.  Fed. R. Civ. P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex 
Corp. v. Catrett, 477 U.S. 317, 324 (1986)).  Assuming the defendant satisfies his or her burden 
of production, the plaintiff “must—by deposition, answers to interrogatories, affidavits, and 
admissions on file—show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 
726 (citing Celotex Corp., 477 U.S. at 324). As the United States Supreme Court has stated, 
“there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a 
jury to return a verdict for that party. If the [nonmoving party's] evidence is merely colorable, or 
is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–
50 (citations omitted); see Celotex, 477 U.S. at 322–23. “The mere existence of a scintilla of 
evidence in support of the plaintiff's position will be insufficient; there must be evidence on 
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which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252; see Cox v. Ky. 
Dep't of Transp., 53 F.3d 146, 150 (6th Cir.1995). 
DISCUSSION 
 As mentioned above, this motion m ainly concerns the question of whether successor 
liability should be applied to Element Transportation. The Seventh Circuit Court of Appeals once 
stated: “[T]he issue of successor liability is ‘dreadfully tangled, reflecting the difficulty of 
striking the right balance between the competing interests at stake.”’ Upholsterers' Int'l Union 
Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323, 1325 (7th Cir. 1990), quoting 
EEOC v. Vucitech, 842 F.2d 936, 944 (7th Cir. 1988). This proves to be true in the case at hand. 
The Court will address Element Transportation’s Motion for Summary Judgment, [R. 98], as 
well as Plaintiffs’ Motion for Leave to File a Sur-Reply, [R. 119.]    
I. Element Transportation’s Motion for Summary Judgment 
Element Transportation moves for summary judgement on Count III and Count IV of the 
Amended Complaint. The Court will analyze each in turn. 
A. Count III: Violations of the Federal Forced Labor Statute 
Under Count III of the Amended Complaint, Plaintiffs allege that the defendants, 
including Element Transportation, “obtained the continuous labor of Plaintiffs by using threats of 
serious harm” and “operated a scheme, plan or pattern intended to cause Plaintiffs to believe that 
non-performance of labor would result in serious financial and professional harm.” [R. 103 at 28-
29.] Plaintiffs allege that this conduct violates the federal forced labor statute, 18 U.S.C. §§ 1589 
and 1595. [Id.]1 In its Motion for Summary Judgment, Element Transportation asserts that it 
                                                 
1 “The federal forced labor statute, 18 U.S.C. § 1589, was enacted as part of the Victims of Trafficking and Violence 
Prevention Act of 2000 (also known as the Trafficking Victims Protection Act).” United States v. Callahan, 801 
F.3d 606, 617 (6th Cir. 2015).  
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should be granted summary judgment on Count III “because  it did not agree to assume liability 
for Plaintiffs’ claims and it would not be equitable and in keeping with federal policy to hold it 
liable as a successor when it did not have notice of Plaintiffs’ claims, did not benefit from its 
predecessors’ alleged unlawful conduct, and ECN is able to provide Plaintiffs the requested 
relief.” [R. 98-1 at 5.]  
“Successor liability is appropriate in the employment-law context if ‘the imposition of 
such liability would be equitable.’” Comer, No. 2:14-CV-1986, 2016 WL 853027, at *5 (quoting 
Cobb v. Contract Transp., Inc., 452 F.3d 543, 554 (6th Cir. 2006)).2 In order to determine 
whether successor liability is equitable in a particular case, the Court must balance “1) the 
interests of the defendant-employer, 2) the interests of the plaintiff-employee, and 3) the goals of 
federal policy, in light of the particular facts of a case and the particular legal obligation at 
issue.” Cobb, 452 F.3d at 554 (citing EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 
1086, 1091 (6th Cir. 1974)). “There is, and can be, no single definition of ‘successor’ which is 
applicable in every legal context.” MacMillan, 503 F.2d at 1091. Furthermore, “[s]uccessor 
liability questions must be answered on a case by case basis, and ‘a new employer . . . may be a 
successor for some purposes and not for others.’” Cobb, 452 F.3d at 554 (quoting MacMillan, 
503 F.2d at 1091). The Sixth Circuit also held that the following nine factors are relevant when 
considering successorship liability:  
(1) whether the successor company has notice of the charge; (2) the ability of the 
predecessor to provide relief; (3) whether the new employer uses the same plant; 
(4) whether there has been substantial continuity of business operations; (5) 
whether the new employer uses the same or substantially same workforce; (6) 
whether the new employer uses the same or substantially same supervisory 
personnel; (7) whether the same jobs exist under substantially the same working 
                                                 
2 Although district courts within the Sixth Circuit have previously applied successor liability under the FLSA and 
other federal statutes, the Court found no precedent, and the parties provided no case law, for the application of 
successor liability under the federal forced labor statute. However, as the parties do not dispute its application, the 
Court will engage in the successor liability analysis for the purposes of this motion.   
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conditions; (8) whether [the defendant] uses the same machinery, equipment and 
methods of production; and (9) whether [the defendant] produces the same 
product.  
 
Cobb, 452 F.3d at 554. The Sixth Circuit further explained that these factors are “not in 
themselves the test for successor liability” but “simply factors courts have considered when 
applying the three prong balancing approach, considering the defendant's interests, the plaintiff's 
interests, and federal policy.” Id. “The ultimate inquiry always remains whether the imposition of 
the particular legal obligation at issue would be equitable and in keeping with federal policy.” Id.  
1. Interests of the Defendant-Employer 
In its Motion for Summary Judgment, Element Transportation argues that it had no notice 
of Plaintiffs’ claims when it purchased a beneficial interest in certain vehicles held in trust 
through the SUBI Sale Agreement. [R. 98-1 at 7.] Therefore, Element Transportation asserts that 
it would be “grossly unfair to hold Element Transportation liable as a successor” and the 
interests of the defendant-employer weigh against successor liability. [Id.] In support of this 
element, Element Transportation submitted the deposition of Bradley Rowse, Senior Vice 
President of Finance at Element Fleet Management Corporation, in which Rowse stated that 
Element Transportation did not have any notice of the claims or alleged violations of the law 
asserted by Plaintiffs. [R. 98-1 at 11 (citing R. 110-19 at 104:4-7).] Also, Element Transportation 
points to § 3.02(e) of the SUBI Sale Agreement, in which ECN agreed that it was unaware of any 
claims or threatened claims against it upon entering the SUBI Sale Agreement. [R. 98-8 at 17 
(SUBI Sale Agreement).]
3 Furthermore, Element Transportation emphasizes that it purchased the 
                                                 
3Section 3.02(e) of the SUBI Sale Agreement states:  
 
There are no actions, suits or proceedings pending, or to the knowledge of the Seller threatened, 
against or affecting the Seller or the Origination Trust, or the property of the Seller or the 
Origination Trust, in any court, or before any arbitrator of any kind, or before or by any 
governmental body, which may materially adversely affect the financial condition of the Seller or 
the Origination Trust or otherwise have a Material Adverse Effect on the Seller or the Origination 
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SUBI assets at book value, “as opposed to a discount to account for known claims.” [R. 98-1 at 
11 (citing 98-8 at 7).] Element Transportation then cites three different cases from outside the 
Sixth Circuit in concluding that “[b]ecause it had no notice of Plaintiffs’ claims, it would be 
grossly unfair to hold Element Transportation liable as a successor.” [Id. at 11.]4 
In their Response, Plaintiffs make several arguments concerning notice. First, Plaintiffs 
argue that lack of notice is not dispositive to a finding of successor liability. [R. 110 at 17.] As 
support, Plaintiffs cite to Clark v. Shop24 Global, LLC, 77 F. Supp. 3d 660, in which the plaintiff 
brought an action against his former employer under the Fair Labor Standards Act (FLSA) and 
Ohio state law, alleging that the defendants failed to pay him overtime. Clark, 77 F. Supp. 3d at 
668. During the plaintiff’s employment, his initial employer, Shop24 USA, sold its assets to 
Shop24 Global; however, his job responsibilities did not change and he continued to work. Id. at 
667. The Southern District of Ohio denied the defendant employers’ motion for summary 
judgment on the issue of successor liability even though the plaintiff conceded that Shop24 
Global did not have notice of the plaintiff’s law suit against Shop24 USA when Shop24 Global 
bought its assets. Id. at 693. Although the court noted that the first factor was “[i]n one sense . . . 
irrelevant to the case at hand,” the court also recognized that the record indicated that Shop24 
Global “potentially had notice” of the claims against Shop24 USA because the plaintiff 
expressed concerns about overtime pay before the transfer from Shop24 USA to Shop24 Global 
                                                 
Trust. In addition, neither the Seller nor the Origination Trust is in default with respect to any 
order of any court, arbitrator or governmental body except for defaults with respect to orders of 
governmental agencies which defaults are not material to the business, property or operations of 
the Seller or the Origination Trust. 
 
[R. 98-8 at 17.]  
4 Specifically, Element Transportation cites Upholsterers’ Int’l Union Pension Fund v. Artistic Furniture of Pontiac, 
920 F.2d 1323, 1327 (7th Cir. 1990); Musikiwamba v. ESSI, Inc., 760 F.2d 740, 750 (7th Cir. 1985); and Valdez v. 
Celerity Logistics, Inc., 999 F. Supp. 2d 936, 944, 946 (N.D. Tex. 2014).  
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occurred. Id. at 693 n.14. Similarly, Plaintiffs argue that Element Transportation “was or should 
have been aware of” Plaintiffs’ potential claims. [R. 110 at 18.]  
Secondly, Plaintiffs argue that Element Transportation had constructive notice of their 
claims against Element Financial, LLC. [R. 110 at 19.]5 As examples of  courts that have broadly 
construed such notice, Plaintiffs cite to a Supreme Court case, Golden State Bottling Co., Inc. v. 
N.L.R.B., in which the Court found that a successor business had notice due to an individual 
serving as a manager for both the predecessor and the successor business, and a Sixth Circuit 
case, N.L.R.B. v. South Harlan Coal, Inc., in which the court found the successor business had 
notice due, in part, to the proximity of the predecessor and successor’s business operations. [Id. 
(citing Golden State Bottling Co., Inc, 414 U.S. 168, 173 (1973); South Harlan Coal, Inc., 844 
F.2d 380, 386 (6th Cir. 1988)).] Plaintiffs reason that “[b]ased upon the principles of Harlan and 
Golden State, Courts have held that when a successor’s officer was a director in a predecessor’s 
company, such facts give rise to a determination of notice for a successor company of its 
predecessor’s unfair labor practices.” [R. 110 at 19 (citing Laborer’s Pension Fund v. Lay-Corn, 
Inc., 455 F. Supp. 2d 773 (N.D. Ill. 2006) and Sullivan v. Alpine Irr. Co., No. 09 C  2329, 2011 
WL 1575617, at *6 (N.D. Ill. April 25, 2011)]. Thus, Plaintiffs conclude that notice of Element 
Financial, LLC’s unfair labor practices can be imputed upon Element Transportation because 
“[t]he officers of Element Financial, LLC . . . were the same as the officers of Defendant 
Element Transportation.” [Id. at 20.] Furthermore, Plaintiffs argue “as evidenced by its use of 
                                                 
5 For support, Plaintiffs cite Musikiwamba, 760 F.2d at 752 (explaining that “[n]ormally, the burden would be on the 
successor to find out from the predecessor all outstanding potential and actual liabilities”) and E.E.O.C. v. 786 S. 
LLC, 693 F. Supp. 2d 792, 795 (W.D. Tenn. 2010) (“It is well-accepted that constructive notice may suffice under 
the successor liability doctrine, at least where the relevant charges have been filed with the EEOC”). Plaintiffs state 
that cases like Musikiwamba and 786 South, LLC allow courts to “broadly construe[] the circumstances that 
constitute notice in the determination of successorship.” [R. 110 at 19.] 
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identical lease terms, Defendant Element Transportation continued the unfair labor practices of 
its predecessors, presumably because of the benefits its predecessors derived from same.” [Id.]  
Finally, Plaintiffs reject Element Transportation’s contractual argument regarding the 
SUBI Sale Agreement for two reasons. First, Plaintiffs state that “because the doctrine of 
successor liability is an equitable one, in making a determination on notice, entities may not rely 
upon contractual disclaimers to demonstrate an absence of notice.” [Id. (citing Clark, 77 F. Supp. 
3d at 692).] Second, Plaintiffs argue that the SUBI contract term that the seller is “unaware of 
any claims” does not control whether Element Transportation is liable for claims related to the 
assets it purchased because Element Transportation “expressly agreed to assume all liabilities of 
the seller, known or unknown, as set forth in Section 2.2 of the Asset Purchase Agreement . . ..” 
[R. 110 at 21.]  
In its Reply, Element Transportation mainly retorts these arguments made by Plaintiffs 
concerning notice. First, Element Transportation reiterates that it did not have notice of 
Plaintiffs’ claims and argues that it would be inequitable to hold Element Transportation liable 
for the alleged unlawful acts of Element Financial, LLC when it did not have notice of those 
acts. [R. 113 at 2.] Specifically, Element Transportation quotes the following line from Golden 
State as support: “Since the successor must have notice before liability can be imposed, ‘his 
potential liability for remedying the unfair labor practices is a matter which can be reflected in 
the price he pays for the business, or he may secure an indemnity clause in the sales contract 
which will indemnify him for liability arising from the seller’s unfair labor practices.’” [Id. 
(quoting Golden State Bottling Co., Inc., 414 U.S. at 185).] Secondly, Element Transportation 
distinguishes Clark from the matter at hand by stressing that, unlike the plaintiffs in Clark, the 
Plaintiffs in this matter never expressed concerns about potential violations of the federal forced 
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labor statute. [Id.] Third, Element Transportation asserts that the only evidence provided by 
Plaintiffs for the proposition that the officers at Element Financial, LLC were the same as the 
officers at Element Transportation is the Asset Purchase Agreement, in which Michael Beland 
signed on behalf of both the seller and the buyer. [Id. at 4.] However, Element Transportation 
states that this evidence falls short of being sufficient. Furthermore, Element Transportation 
argues that the “interplay between the terms of Plaintiffs’ Lease Agreements with EFC and the 
terms of their ICS Agreements with PTL” is not adequate to prove that Element Transportation 
continued the alleged unlawful labor scheme because Plaintiffs did not show that “PTL 
continued to use the same terms in its ICS Agreement and that Element Transportation continued 
EFC’s relationship with PTL.” [Id.] Finally, Element Transportation argues that it did not assume 
Element Financial, LLC’s liabilities in Section 2.2 of the Asset Purchase Agreement because 
“Section 2.2 applies only to future liabilities, i.e., those that arise or accrue after the asset 
purchase is completed.” [Id. at 5.]  
Out of the tangled mass of notice arguments strewn before the Court, three main issues 
rise to the surface: (1) the weight of lack of notice in a successor liability analysis, (2) the 
evidence regarding crossover of officers from Element Financial, LLC to Element 
Transportation, and (3) contractual interpretation of the agreements between the parties. First, the 
Court recognizes that the parties take a different perspective on the weight of notice as opposed 
to the other nine MacMillan factors. Neither perspective is necessarily incorrect. While the 
Supreme Court seemingly made notice a requisite for successor liability in the quote provided by 
Element Transportation, the Sixth Circuit stated that the nine MacMillan factors “are not in 
themselves the test for successor liability” and “all nine factors will not be applicable to each 
case.” Cobb, 452 F.3d at 554. Although other circuits have labelled notice as critical to the 
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successor liability analysis, see, e.g., Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th 
Cir. 1986), the Sixth Circuit’s stance on this matter remains unclear. However, notice’s role in 
this case becomes more transparent when one examines the actual evidence before the Court. 
Under the second issue, the Court notes that the only evidence provided for the assertion 
that the officers of Element Financial, LLC were the same as the officers of Element 
Transportation is the signature of one individual, Michael Beland, on behalf of both entities. [See 
R. 110 at 20.]6 Element Transportation emphasizes that Plaintiffs failed to provide any 
information on Beland, i.e., his title and responsibilities with the organizations, whether he was 
involved in the negotiations, the dates of his employment, whether he was involved in the 
alleged unlawful labor scheme, etc. Granted, the Sixth Circuit stated that “knowledge of unfair 
labor practice litigation need not be actual, but may be inferred from the circumstances.” S. 
Harlan Coal, Inc., 844 F.2d at 385 (6th Cir. 1988) (citing Golden State Bottling Co., 414 U.S. at 
173). However, Beland’s signature on its own pales in comparison to the evidence available to 
the courts involving the officers in Golden State and Harlan Coal—the cases Plaintiffs cite as 
broadly construing the successor liability standard.7  
                                                 
6 The signature referred to on the Asset Purchase Agreement is not labelled on the agreement itself. [R. 110-14 at 6.] 
However, Plaintiffs ask the Court to assume the signature belongs to the same person based on a visual comparison 
with the signature on a different document. [See R. 110-2 at 5, ¶ 24.] Plaintiffs provided no authentication of either 
of the signatures presented. The Court is ill-equipped to compare two signatures and determine whether they belong 
to the same person. However, even if they do belong to the same person, the evidence falls short of being sufficient.  
7 Plaintiffs also cite to two cases from the Northern District of Illinois in support of this contention. [See R. 110 at 
19-20 (citing Laborers' Pension Fund, 455 F. Supp. 2d 773 and Sullivan, No. 09 C 2329, 2011 WL 1575617, at 
*6).] Beyond the fact that neither case is binding on this Court, both cases can be distinguished from the matter at 
hand. In Laborers’ Pension Fund, it was undisputed that the individual at issue was an officer and director of both 
the predecessor and successor entities with “no question” that the successor had notice of the predecessor’s 
obligations. See Laborers’ Pension Fund, 455 F. Supp. 2d at 782. In fact, the defendants did not challenge the 
adequacy of notice. Id. n.15. Here, Element Transportation questions Beland’s title and role as well as notice in 
general. In Sullivan, unlike the matter at hand, there was evidence that the individual at issue was “very involved in 
the day-to-day operations of Alpine” and he was president of the two alleged successor companies. See Sullivan, No. 
09 C 2329, 2011 WL 1575617, at *6.  
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In Golden State, All American Beverages, Inc. bought Golden State Bottling Co.’s soft 
drink bottling and distribution business after the National Labor Relations Board (NLRB) 
ordered Golden State to reinstate with backpay a driver-salesman whose discharge was found to 
be an unfair labor practice. 414 U.S. at 170. The Supreme Court agreed with the NLRB that All 
American had notice of the unfair labor practice litigation because the secretary/manager of 
Golden State discharged the driver-salesman, closely followed the progress of the litigation, and 
then continued working with the entity under All American’s ownership as a general manager 
and president. Id. at 173. In contrast, Plaintiffs provide no explanation or evidence as to Beland’s 
position or whether he played any part in the alleged unlawful activity.  
 I n  Harlan Coal, Roy Jackson, the president of South Harlan Coal Company, Inc., 
personally negotiated and bought a coal mine, Mine No. 12, from Croley Coal. 844 F.2d at 381-
82. In between two occasions of negotiations, miners employed at Mine No. 12 publicly picketed 
in protest of certain alleged unfair labor practices. Id. The Sixth Circuit affirmed the NLRB’s 
finding of notice because Jackson was “personally engaged” in both negotiations, he lived in 
close proximity to the situs of unfair labor practices, he had a leading role in a major association 
dealing with the coal mining industry in the area, the local newspaper published three headline 
stories on the picketing (Jackson had a newspaper receptacle in front of his house), and the unfair 
labor practices occurred only a matter of months before the purchase of Mine No. 12. Id. at 386-
87. Unlike Harlan Coal, the Plaintiffs in this matter provided no evidence regarding Beland’s 
role in the negotiations, nor is there any further circumstantial evidence that would allow the 
Court to infer that he had knowledge of any unfair labor practices. 
Under the third issue, the parties disagree over whether certain provisions from the SUBI 
Sale Agreement or the Asset Purchase Agreement serve as proof that Element Transportation did 
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or did not agree to assume the liability of the seller. As Plaintiffs emphasized in their Response, 
federal courts have generally held that a limitation of liability provision in an asset transfer 
agreement “does not control when the federal standard for successor liability is at issue.” Clark, 
77 F. Supp. 3d at 692 (citing Teed v. Thomas & Betts Power Sols., L.L.C., 711 F.3d 763, 765 
(7th Cir. 2013)); Finnerty v. Wireless Retail, Inc., 624 F. Supp. 2d 642, 657 (E.D. Mich. 2009) 
(noting that exclusion of liability by contract does not necessarily prevent successor liability 
from attaching). Thus, the Court finds that, on this particular issue, the federal standard for 
successor liability controls over a contractual provision.8   
 Overall, the only evidence pr ovided by Plaintiffs to show that Element Transport had 
notice of Element Financial, LLC’s unfair labor practices is a signature from Michael Beland on 
the Asset Purchase Agreement and one lease agreement from after the asset purchase occurred, 
[See footnote 8]. In comparison to the binding case law on the matter, this amounts to the “mere 
existence of a scintilla of evidence in support of the plaintiff’s position,” which is insufficient to 
prove a genuine issue for trial. Anderson, 477 U.S. at 256. Therefore, the Court holds that the 
interests of the defendant-employer weigh against successor liability. 
2. Interests of the Plaintiff-Employee 
                                                 
8 The Court notes that Element Transportation also adds to the end of its notice argument: “Furthermore, as 
evidenced by its use of identical lease terms, Defendant Element Transportation continued the unfair labor practices 
of its predecessors, presumably because of the benefits its predecessors derived from same.” [R. 110 at 20.] The 
issue with this statement is that Plaintiffs alleged in their Amended Complaint that it was the interplay between 
ECN’s Lease Agreement and PTL’s ICS Agreement that allowed the defendants to allegedly “force the continued 
labor of Plaintiffs” by threats of serious financial harm. [See R. 103 at 27.] The one piece of evidence provided by 
Plaintiffs on this matter is a lease agreement between Element Transportation and a lessee, Michael Grant, that was 
made after the asset purchase. [See R. 110-8 at 14.] However, the listed carrier in the agreement is not PTL, rather a 
company labelled “ASF.” [Id. at 25.] Furthermore, Plaintiffs do not provide the agreement Grant entered with ASF 
in order to compare it to that of PTL. Thus, Plaintiffs have only provided half of the evidence required to show that 
Element Transportation continued the unlawful labor practice of trapping truck driving employees with an 
interlocking lease agreement and ICS agreement. 
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Element Transportation’s second argument within its Motion for Summary Judgment is 
that Element Financial, LLC continued operating as ECN after the asset purchase and it has 
sufficient assets to pay the relief Plaintiffs seek on their federal forced labor statute claim. [R. 98-
1 at 12.] Thus, Element Transportation concludes that the interests of the plaintiff weigh against 
successor liability. [Id.] Plaintiffs respond that the fact that Element Financial, LLC still exists 
and may be able to provide relief does not preclude a finding of liability against Element 
Transportation. [R. 110 at 22.] Furthermore, Plaintiffs assert that both Element Financial, LLC 
and Element Transportation may be held liable for the predecessor’s bad acts under the doctrine 
of successor liability. [Id. at 23.]  
Although Plaintiffs never acknowledge “the interests of the plaintiff-employee” and how 
it should weigh in the consideration of successor liability, [see generally R. 110], it seems that 
Plaintiffs have an interest in being able to provide their truck driving services free from “threats 
of serious harm” and to be compensated properly. However, as explained above, Plaintiffs have 
not provided sufficient evidence that Element Transportation knew of or was involved such 
threats. Furthermore, the parties do not dispute that ECN is solvent and may be able to 
compensate Plaintiffs. Thus, it would not necessarily be against Plaintiff’s interests if Element 
Transportation was dismissed from this matter because Plaintiffs could still seek compensation 
from at least ECN. Considering that Plaintiffs brought this claim against Element Transportation, 
it would seem illogical to conclude that Plaintiffs’ interests do not weigh in favor of successor 
liability. However, the lack of evidence and the availability of defendants to compensate 
Plaintiffs balances the scales. Thus, this prong weighs neutrally.  
3. Plaintiffs’ Other Arguments Regarding the MacMillan Factors 
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In Plaintiffs’ Response, after discussing Element Transportation’s first two arguments, 
Plaintiffs briefly argue the application of the remaining MacMillan factors. First, in reference to 
the third factor, Plaintiffs argue that Element Transportation utilized the same “plant” as Element 
Financial, LLC because the lease agreements of both companies identify the same address as the 
principle place of business. [R. 110 at 24.]9 Element Transportation responds that it did not have 
a physical address, rather the address listed on the agreement was simply a mailing address. [R. 
113 at 7.] As neither party presents sufficient evidence to ultimately prove whether Element 
Transportation utilizes a physical location, the Court finds that this factor weighs neutrally. 
Furthermore, as Element Transportation is not a manufacturer, it is not clear that this factor is 
relevant to this matter in the first place. See Finnerty, 624 F. Supp. 2d at 658 (finding that the 
relevance of this factor was “not apparent” because neither defendant “operated a plant 
producing the goods that were the subject of the Agreement”).  
Secondly, under the fourth factor, Plaintiffs contend that Element Transportation 
continued the business operations of Element Financial, LLC because Element Transportation 
continued leasing trucks to individuals under the same lease terms and with the same “Element” 
logo on the agreement as Element Financial, LLC. [R. 110 at 25.] As evidence, Plaintiffs provide 
one lease agreement from after the asset purchase in which Element Transportation left every 
provision the same as Element Financial, LLC’s lease agreements, except it changed the lessor 
name to Element Financial, LLC. [R. 110-8 at 14.] Element Transportation responds that there is 
no evidence that it provided equipment financing or vehicle fleet leasing to PTL. [R. 113 at 7.] 
Furthermore, under the fifth, sixth, and seventh factors, Element Transportation contends that it 
                                                 
9 Plaintiffs also state that “both entities relied upon Quality Companies, LLC to provide the servicing of the Class A 
vehicles under the leases it held.” [R. 110 at 24.] However, the Court finds this irrelevant to the matter of whether 
both entities utilized the same physical location.  
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did not have employees or supervisory staff and it did not maintain the same jobs under the same 
working conditions as Plaintiffs experienced. [Id.] While Plaintiffs’ broad argument under the 
fourth factor seems to weigh in favor of successor liability, Element Transportation’s pointed 
observations under the fifth, sixth, and seventh factors seem to weigh against it. Ultimately, as 
the parties mainly dispute the issue of notice, the limited discussion and evidence regarding these 
factors have little to no effect on the determination of successor liability in this matter.  
4.  Keeping with Federal Policy 
 After arguing the first tw o prongs of the three-prong successor liability test, i.e., that the 
interests of the employer and employee both weigh against applying successor liability, Element 
Transportation concludes its Motion for Summary Judgment by arguing that holding it liable as a 
successor would not “further the goals” of federal policy. [R. 98- 1 at 12.] Specifically, Element 
Transportation quotes a conference report concerning the Trafficking Victims Protection Act 
(TVPA) which states: “Section 1589 is intended to address the increasingly subtle methods of 
traffickers who place their victims in modern-day slavery, such as where traffickers threaten 
harm to third persons, restrain their victims without physical violence or injury, or threaten dire 
consequences by means other than overt violence.” H.R. CONF. REP. 106-939, at 101 (2000). 
Element Transportation reasons that these goals are not furthered by holding it liable as a 
successor because PTL and EFC are not traffickers, PTL and EFC did not use “subtle methods” 
to trick Plaintiffs, and “it strains credulity” to compare Plaintiffs’ contracts with PTL and EFC to 
“modern day slavery.” [R. 98-1 at 13.] 
 Also, Element Transportation ar gues that the general goals of the successor liability 
doctrine under federal law are not furthered by holding Element Transportation liable. [Id.] It 
contends: 
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The purpose underlying successor liability is to prevent a violator of law from 
being able to escape liability “by selling its assets. . . and then dissolving.” The 
rationale for holding the successor liable is that “[t]he successor will have been 
compensated for bearing the liabilities by paying less for the assets its buying.”  
 
[Id. (quoting Teed, 711 F.3d at 766 (internal citation omitted)).] In contrast to this policy, 
Element Transportation argues that it received no lease payments from Carter or Hayes. 
Moreover, it did not receive any benefit from the alleged forced labor of any other owner-
operators because it was guaranteed those lease payments by Element Financial, LLC 
“regardless of whether the owner-operators made any payments on their leases or provided any 
services to PTL.” [Id. (citing R.110-19 at 71:21-72:14).]  
 In their Response, Plaintiffs fir st argue that although the federal forced labor statute is 
mostly commonly applied to situations involving undocumented immigrants being forced into 
labor or the sex trade, it should not be limited to such circumstances. [R. 110 at 26 (citing R. 80; 
United States v. Callahan, 801 F.3d 606, 617 (6th Cir. 2015)).] Plaintiffs assert that the 
conditions under which these truck drivers operate through the lease and labor agreements 
cannot be so easily brushed off as noncoercive or not involving forced labor. [Id.]
10 Additionally, 
Plaintiffs argue that Element Transportation should be punished for benefitting from the 
unlawful practices by earning $28.4 million in leasing and over $30 million in loan interest 
because the federal forced labor statute states that “whoever knowingly benefits, financially or 
by receiving anything of value, from participation in a venture . . . shall be punished . . ..” [Id. at 
25-26.]11  Lastly, Plaintiffs also imply that not finding Element Transportation liable would 
                                                 
10 Plaintiffs cite and briefly discuss an article from USA Today showing that “truckers in lease contracts suffer 
conditions reminiscent of indentured servitude.” [Id.] Element Transportation object to the article on hearsay 
grounds. [R. 113 at 5.] The Court agrees that it is hearsay. See Parker v. Winwood, No. 16-CV-00684-JPM-AN, 
2017 WL 6886076, at *9 (M.D. Tenn. Oct. 17, 2017) (collecting cases) (“Newspaper articles are typically 
considered hearsay under Rule 801(c) when offered for the truth of the matter asserted”). Furthermore, the article 
fails to establish notice because it was published almost a year after the asset sale on June 16, 2017 and it does not 
involve the parties in this case. [See R. 110 at 27 n.1 (citing USA Today article).]  
11 18 U.S.C. § 1589(b). 
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violate the policy of successor liability in that it would allow Element Transportation to benefit 
from continuing the business operations of Element Financial, LLC without holding anyone 
accountable to the injured employees. [Id. at 28.]12 
 Element Transportation counters Plaintiffs’ arguments by stati ng that the “relevant 
question” at hand is whether it benefitted from Plaintiffs’ forced labor—as opposed to whether it 
benefitted in general from the transaction. [R. 113 at 6.] Element Transportation agrees that it 
generated $28.4 million in revenue from lease payments for commercial trucks, however, 
“[n]one of this revenue was from Plaintiffs because Plaintiffs’ leases had terminated and 
Plaintiffs had ceased performing work for PTL before Element Transportation purchased the 
SUBI assets.” [Id.] Moreover, Element Transportation contends, once again, that it did not 
receive any increased lease payment revenue from any owner-operator because of the alleged 
unlawful labor scheme between EFC and PTL. [Id.] Rather, there was a “seller guarantee to pay 
EFC the payments due under the lease agreements regardless of whether the owner/operator 
drivers who signed those agreements made any payments or performed any work.” [Id.] Lastly, 
Element Transportation rejects the notion that it receiving interest from 19th Capital is of any 
probative value because Element Transportation received no revenue from lease payments for 
commercial trucks after December 30, 2016. [Id. at 6-7.]   
                                                 
12 Specifically, Plaintiffs state:  
 
It is again important to note that Plaintiffs assertion that Defendant Element Transportation be 
liable for violations of the Federal Forced Labor Statute is not based upon its mere purchase of 
EFC’s assets. Rather, in the instant matter, Defendant Element Transportation was created from 
the reorganization of EFC’s parent company, and thereafter continued the business that EFC 
previously engaged in. Based on its continuity of the business operation that underlies the 
violations of the Forced Labor Statute, and the benefits Defendant Element Transportation has 
received from same, it would be equitable to hold Defendant Element Transportation responsible 
for same. 
 
[R. 110 at 28.] 
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In sum, the parties dispute whether finding Element Transportation liable as a successor 
to Element Financial, LLC will further the interest of federal policy, both under the federal 
forced labor statute and the general federal policy behind successor liability. The Court will 
consider their arguments concerning each policy in turn. 
a. The Federal Forced Labor Statute 
“The federal forced labor statute, 18 U.S.C. § 1589, was enacted as part of the Victims of 
Trafficking and Violence Prevention Act of 2000 (also known as the Trafficking Victims 
Protection Act).” Callahan, 801 F.3d at 617. Although the legislative history quoted by Element 
Transportation depicts the statute as being directed specifically at human traffickers who place 
victims in “modern day slavery,” the actual text of the statute yields a broader interpretation. The 
first portion of the statute reads: 
Whoever knowingly provides or obtains the labor or services of a person by any 
one of, or by any combination of, the following means-- 
(1) by means of force, threats of force, physical restraint, or threats of physical 
restraint to that person or another person; 
(2) by means of serious harm or threats of serious harm to that person or another 
person; 
(3) by means of the abuse or threatened abuse of law or legal process; or 
(4) by means of any scheme, plan, or pattern intended to cause the person to 
believe that, if that person did not perform such labor or services, that person or 
another person would suffer serious harm or physical restraint, 
 
shall be punished as provided under subsection (d). 
 
18 U.S.C. § 1589(a) (emphasis added). In Section (c) of the statute, the term “serious harm” is 
defined as:  
any harm, whether physical or nonphysical, including psychological, financial, or 
reputational harm, that is sufficiently serious, under all the surrounding 
circumstances, to compel a reasonable person of the same background and in the 
same circumstances to perform or to continue performing labor or services in 
order to avoid incurring that harm. 
 
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18 U.S.C. § 1589(c) (emphasis added). As the Sixth Circuit stated in Callahan while interpreting 
this statute, “[d]efendants are correct that ‘[w]hen construing a legislative enactment, [courts] 
must give effect to the intent of the legislature adopting the statute in question.’ But Defendants 
forget that ‘legislative intent should be divined first and foremost from the plain language of the 
statute,’ and ‘reference to legislative history is inappropriate when the text of the statute is 
unambiguous.’ Callahan, 801 F.3d at 617-18 (internal citations omitted). Thus, Plaintiffs were 
able to plead their claim under the plain language of the statute, but it remains ambiguous as to 
whether finding Element Transportation liable as a successor would align with the goals of the 
federal forced labor statute. As Element Transportation mentioned, the original purpose of the 
overall Trafficking Victims Protection Act in 2000 was to “combat trafficking in persons, a 
contemporary manifestation of slavery whose victims are predominantly women and children, to 
ensure just and effective punishment of traffickers, and to protect their victims.” 75 A.L.R. Fed. 
2d 467 (quoting Pub. L. No. 106-386, § 102, 114 Stat. 1488 (2000)). Furthermore, there is no 
case law currently available regarding the applicability of successor liability in a case involving 
the forced labor statute. Thus, it remains uncertain whether a finding of successor liability in this 
matter would align with the policy goals of the forced labor statute. 
b. Federal Successor Liability 
As the Sixth Circuit stated in the context of applying successor liability in a Title VII 
case:  
Failure to hold a successor employer liable for the discriminatory practices of its 
predecessor could emasculate the relief provisions of Title VII by leaving the 
discriminatee without a remedy or with an incomplete remedy. . . . It is to be 
emphasized that the equities of the matter favor successor liability because it is 
the successor who has benefited from the discriminatory employment practices of 
its predecessor. 
 
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MacMillan, 503 F.2d at 1091-92. Here, failing to hold Element Transportation liable as a 
successor would not “emasculate the relief provisions” of the federal forced labor statute because 
other defendants remain who may be able to compensate Plaintiffs. Furthermore, “the equities of 
the matter” do not favor successor liability because there is not sufficient evidence that Element 
Transportation knew of or benefitted from the alleged unlawful labor practices of Element 
Financial, LLC. Plaintiffs claim that this is a situation in which a parent company attempted to 
evade liability by transferring interests between subsidiaries. [See R. 110 at 26-27.] However, 
with no sufficient evidence that Element Transportation was aware of any unlawful labor 
practices and no dispute that ECN can provide monetary relief, the Court must disagree. This 
matter does not present a circumstance that aligns with the goals of successor liability under 
federal common law.  
After weighing the interests of the employer and employee, as well as the goals of federal 
policy, the Court finds that the imposition of successor liability upon Element Transportation is 
inappropriate. Although the second prong seems to weigh neutral, the first and third both weigh 
against applying successor liability in this circumstance. Perhaps most importantly, it would not 
be equitable here to find Element Transportation liable when there is little to no evidence it had 
notice of Plaintiffs’ claims and Plaintiffs may still seek relief from Element Transportation’s 
predecessor, ECN. Thus, Element Transportation’s Motion for Summary Judgment, [R. 98], as it 
applies to Count III of the Amended Complaint, is GRANTED.  
B. Count IV: Violations of the Common Law Unjust Enrichment 
Element Transportation also moves for summary judgment on Count IV of Plaintiffs’ 
Amended Complaint, which alleges violations of common law unjust enrichment. In addition to 
federal common law, Element Transportation argues that it is also not liable as a successor under 
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Pennsylvania law, and, therefore, Plaintiffs’ claim of unjust enrichment should be dismissed. [R. 
98-1 at 14.] The parties do not dispute that Pennsylvania common law applies, as the lease 
agreements contained a Pennsylvania choice of law provision. [See R. 98-3 at 10; R. 98-5 at 10.]  
 Under Pennsylvania law, “it is w ell-established that ‘when one company sells or transfers 
all of its assets to another company, the purchasing or receiving company is not responsible for 
the debts and liabilities of the selling company simply because it acquired the seller's property.’” 
Cont'l Ins. Co. v. Schneider, Inc., 582 Pa. 591, 599 (2005) (quoting Hill v. Trailmobile, 603 A.2d 
602, 605 (1992)). However, this rule is overcome if it is established that “(1) the purchaser 
expressly or implicitly agreed to assume liability, (2) the transaction amounted to a consolidation 
or merger, (3) the purchasing corporation was merely a continuation of the selling corporation, 
(4) the transaction was fraudulently entered into to escape liability, or (5) the transfer was 
without adequate consideration and no provisions were made for creditors of the selling 
corporation.” Hill, 603 A.2d at 605.  
As the factors under Pennsylvania law are rather similar to those under federal common 
law, the parties essentially repeat the arguments from the federal successor liability sections of 
their briefs. In relation to the five exceptions, Element Transportation argues: (1) the “SUBI Sale 
Agreement expressly states that Element Transportation did not assume an[y] of ECN’s 
liabilities,” (2) Element Transportation split with ECN rather than consolidate or merge, (3) ECN 
continued its commercial and vendor leasing business after the SUBI sale, (4) Element 
Transportation and ECN could not have entered into the transaction to escape liability because 
neither party had any knowledge of Plaintiffs’ claims, and (5) Element Transportation paid 
“book value” for the SUBI assets. [R. 98-1 at 14-15.] Plaintiffs’ respond that Element 
Transportation “explicitly agreed to assume the liabilities of its predecessor” pursuant to Section 
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2.2 of the Asset Purchase Agreement. [R. 110 at 30.] Furthermore, Plaintiffs contend that 
“during the period it continued the individual truck leasing business, Defendant Element 
Transportation represented a mere continuation of the individual fleet leasing business ECN 
Financial ran as EFC.” [Id.]  
First, as the Court explained above, Plaintiffs have not provided sufficient evidence that 
Element Transportation continued the unfair labor practices of its predecessor. Nor do Plaintiffs 
provide additional evidence here that Element Transportation was a “mere continuation” of 
ECN. In fact, neither party disputes that ECN continued doing business independently after the 
asset purchase occurred. [R. 113 at 7; R. 110 at 22; 24.] Thus, the Court finds this argument from 
Plaintiffs unconvincing.  
Secondly, upon examining the plain meaning of the unambiguous language of the Asset 
Purchase Agreement, the Court disagrees with Plaintiffs’ interpretation of Section 2.2. 13 Section 
2.2 states that “Buyer,” i.e., Element Transportation, “[f]rom and after the date hereof,” shall 
assume “the following debts, liabilities and obligations of Seller”: 
(a) All debts, liabilities and obligations of Seller in respect of or relating to the 
Transferred Assets that arise, accrue or are to be performed as a result of, on or 
after the date hereof, whether primary or secondary, direct or indirect, known or 
unknown, fixed or contingent, including, without limitation, any transfer taxes not 
required to be charged or collected by Seller; and  
 
(b) All debts, liabilities and obligations of Seller in respect of relating to the 
performance or completion of tasks, deliverables, services and other obligations 
required by the Transferred Contracts, other than debts, liabilities and obligations 
of Seller arising from the breach of, or failure of Seller to comply, prior to the 
date hereof, with any representation warranty, covenant or obligation in such 
Transferred Contracts. 
 
                                                 
13 “When the words of an agreement are clear and unambiguous, the intent of the parties is to be ascertained from 
the language used in the agreement, which will be given its commonly accepted and plain meaning.” LJL Transp., 
Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 559, 962 A.2d 639, 647 (2009) (internal citation omitted).  
 
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[R. 110-14 at 2 (emphasis added).] Both section 2.2(a) and section 2.2(b) state that Element 
Transportation is to be responsible for liabilities that occurred after the Asset Purchase 
Agreement, not “prior to the date hereof.” [Id.] Thus, the Court finds Plaintiffs’ contractual 
interpretation argument regarding successor liability under Pennsylvania law unconvincing as 
well. Element Transportation’s Motion for Summary Judgment as it pertains to Count IV of 
Plaintiffs’ Amended Complaint is GRANTED.  
II. Motion for Sur-Reply 
Also before the Court is Plaintiffs’ Motion for Leave to File a Sur-Reply. [R. 119.] In 
support of this motion, Plaintiffs argue that the “Reply of Defendant Element Transportation 
contains a substantial inaccuracy that must be addressed for the Court to have a complete 
understanding of the evidence in the record.” [R. 119.] Specifically, Plaintiffs contend that 
Element Transportation incorrectly asserted that Plaintiffs failed to show that Element 
Transportation continued the unlawful forced-labor scheme between EFC and Paschall Truck 
Lines. [R. 119-1 at 2.] Plaintiffs go on to highlight evidence already in the record in an effort to 
refute this argument. [See R.119-1 at 2-3.]  
“Although the Federal Rules of Civil Procedure do not 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 F. App’x 262, 265 (6th Cir. 
2014) (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003)). It is true that “sur-
replies . . . are highly disfavored, as they usually are a strategic effort by the nonmoving party to 
have the last word on a matter.” Liberty Legal Foundation v. Nat'l Democratic Party of the USA, 
Inc., 875 F. Supp. 2d 791, 797 (W.D. Tenn. 2012) (internal quotation marks omitted). However, 
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the question of whether to permit such an additional filing is a matter left to the broad discretion 
of the trial court. See Key, 551 F. App’x at 264. 
Here, Element Transportation did not make a new submission or argument in its Reply. 
Rather, it was responding to Plaintiffs’ argument in its Response that “Defendant Element 
Transportation continued the unfair labor practices of its predecessors . . ..” [R. 110 at 17.] 
Furthermore, the evidence Plaintiffs claim refutes Element Transportation’s arguments in its 
Reply was already before the Court. Thus, Plaintiffs’ Motion for Leave to File Sure-Reply, [R. 
119], is DENIED.  
CONCLUSION 
 For the foregoing reasons, IT IS HEREBY ORDERED: 
(1) Element Transportation’s Motion for Summary Judgment, [R. 98], is GRANTED. As 
there are no remaining claims against this party, Element Transportation, LLC is 
DISMISSED from this case. 
(2)  Plaintiffs’ Motion for Leave to File a Sur-Reply, [R. 119], is DENIED. 
IT IS SO ORDERED. 
 
 
 
 
 
 
 
cc: Counsel of Record 
January 23, 2019
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