David Matthew Kilrain vs. Shoreline Farms LLC, et al

Case Number

21CV02119

Case Type

Hearing Date / Time

Wed, 11/01/2023 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For Plaintiff David Matthew Kilrain: Self-represented

                            

For Defendants Shoreline Farms LLC and Aviana Kjos: Lora D. Hemphill, Natalia

Duque, Hager & Dowling

                            

For Defendant Steven Goss, D.V.M.: George M. Wallace, Lisa J. Brown, Law

Offices of Lisa J. Brown

RULING

For all reasons discussed herein, the motion of Defendants Shoreline Farms LLC and Aviana Kjos for summary judgment is denied. The trial confirmation date of 11/29/23 at 11:30am is confirmed.

Background

This action is consolidated with case number 22CV01773 entitled David Matthew Kilrain vs. Dr. Steven Goss, DVM and is designated as the lead case. The third amended complaint (TAC) filed by Plaintiff David Matthew Kilrain on June 20, 2022, is the operative pleading. As alleged in the TAC:

Plaintiff Kilrain owns a horse called, “Oliver.” (TAC, p. 2.) After Oliver and Defendant’s daughter, Carrera, experienced abuse at a facility known as Rancho Oso located in Santa Barbara’s back country, Carrera called Defendant Aviana Kjos (Kjos), who was in charge of Defendant Shoreline Farms, LLC’s (Shoreline) facility, to ask if she could bring Oliver to Shoreline. (TAC, p. 4 & p. 8, ¶¶ 1-3.) (Note: Shoreline Farms and Kjos will be referred to, collectively, as Defendants.) Kjos brought Oliver to Shoreline Farms around June 1, 2020. (Ibid.) Kilrain signed Shoreline Farms’ boarding agreement (the boarding agreement) without reading it. (TAC, p. 5 & p. 8, ¶ 3.)

Kjos told Carrera that Carrera and Oliver had to have a trainer to teach Oliver to jump. (TAC, p. 5 & p. 8, ¶ 4.) Carrera talked Kjos into training Carrera and Oliver to jump. (TAC, p. 5.) Defendants did not have permission from Kilrain to train Oliver to jump nor did Kilrain contract Kjos or Shoreline Farms to train Oliver and Carrera to jump. (TAC, p. 5, pp. 8-9, ¶¶ 7-8 & p. 11.)

Defendants taught Oliver “too much too fast.” (TAC, p. 5.) Oliver did not like jumping but Defendants continued to jump him and did not stop when Oliver was tired of jumping. (Ibid.) While Defendants were training Oliver to jump, the horse was injured and suffered a hematoma on his back cannon bone. (TAC, p. 5 & p. 9, ¶¶ 9-11.) Kjos told Kilrain that he should call the veterinarian. (TAC, p. 6.)

Kilrain called Dr. Goss (Dr. Goss) who treated Oliver. (TAC, p. 6 & p. 9, ¶¶ 10, 11.) When Oliver’s cannon bone healed, Kilrain called Dr. Goss to look at Oliver’s leg and make sure it was okay for Carrera to ride Oliver. (TAC, p. 6 & p. 9, ¶ 13.) Dr. Goss performed a neurological exam on Oliver and concluded that Oliver had brain damage and could not be ridden. (TAC, p. 6 & p. 9, ¶¶ 14 & 15.)

Carrera eventually explained that Oliver had injured his back leg as a result of a jumping accident. (TAC, p. 6.) Carrera and Kjos hid this fact for several months and denied the jumping accident ever happened. (TAC, pp. 5, 7 & 11.) Because Kjos denied that the jumping accident happened, Dr. Goss was left to guess how Oliver hurt his leg and “jumped to the wrong conclusion”. (TAC, p. 11.) Kjos enforced Dr. Goss’s recommendation and would not allow Kilrain or Carrera to ride Oliver. (TAC, p. 6 & p. 9, ¶¶ 17, ¶ 21.)

Kjos deprived Kilrain and Carrera of access to Oliver, called the sheriff on Kilrain for serving her with this litigation and for visiting Oliver, and gave Kilrain a 48-hour eviction notice. (TAC, p. 10, ¶¶ 26, 30, 31, 32 & p. 13.) Kilrain seeks damages for injuries allegedly sustained by Kilrain, Carrera, and Oliver. (TAC at pp. 13-14.)

The TAC alleges a sole cause of action titled “professional negligence” against Defendants. Defendants filed an answer to the TAC on September 22, 2022.

On February 6, 2023, Defendants filed a motion for summary judgment (the prior motion) on the grounds that Kilrain’s single cause of action is barred by a general release and indemnification agreement (the release) signed by Kilrain in connection with the boarding agreement and on a separate and additional ground that Kilrain cannot establish or prove that Kilrain or Oliver suffered injury as a consequence of any alleged conduct on the part of Defendants. (See Prior Motion, Notice at p. 2 & Memorandum at pp. 24-26.) Kilrain opposed the prior motion.

On April 26, 2023, the Court denied the prior motion finding that, for all reasons stated in the Court’s April 26, 2023, Minute Order (the Minute Order), Defendants failed to meet their burden to show that the boarding agreement and release provide a complete defense to Kilrain’s cause of action for negligence and to show that Kilrain could not establish or prove that Kilrain or Oliver sustained any injury that was caused by Defendants or as a result of an alleged jumping incident. (See Minute Order.)

Defendants have filed a second motion for summary judgment which is brought on the grounds that Kilrain cannot establish the elements of causation and damages. Defendants contend that in recent discovery responses, Kilrain has admitted that he does not know how Oliver was injured. Therefore, Defendants, contend, Kilrain cannot establish that Defendants breached a duty of care or that Defendants caused Kilrain’s injuries. To support the present motion, Defendants rely on what Defendants contend are Kilrain’s “late responses” to Kjos’s requests for admissions. (Motion at p. 5, ll. 5-7.) Kilrain also opposes the present motion.

Analysis

A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) “From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, 850 (Aguilar).) A Defendant moving for summary judgment bears the burden of persuasion that “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 235 Cal.4th at p. 850, 853 [a moving Defendant is not required to conclusively negate the element that Defendant contends the Plaintiff cannot establish].)

The pleadings frame the issues to be considered on a motion for summary judgment. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) To meet their burden on summary judgment, Defendants must adduce evidence negating the theories of liability alleged in the TAC. (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.)

In the TAC, Kilrain effectively alleges a negligence cause of action against Defendants based on the allegations further described above with regard to the injuries sustained by Oliver purportedly resulting from a jumping accident and Defendants’ conduct in connection with the incident as further discussed above. “[T]he well-known elements of [a] negligence cause of action [are] duty, breach of duty, proximate cause and damages.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) In addition, gross negligence is pleaded by alleging the traditional elements of negligence ….” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.) In the present motion, Defendants contend that Kilrain cannot establish the elements of breach of duty and causation.

In the prior motion, Defendants argued that, throughout the TAC and in discovery responses, Kilrain did not “provide any details of how or when [Oliver] was supposedly injured as a result of jumping training and did not “include what part of the horse’s body was injured, the severity of the injury, how any injury was caused, who was present when the injury occurred, or when the injury occurred.” (Prior Motion, p. 25, ll. 3-7.) To support their contentions, Defendants offered and relied on declarations signed by Kjos and Defendants’ counsel, Kilrain’s responses to Defendants’ special interrogatories, and a declaration filed by Kilrain in support of the second amended complaint filed by Kilrain in this matter. (Id. at p. 25, ll. 10-28.)

To determine the prior motion, the Court reviewed the evidenced offered by Defendants including the Kjos declaration submitted in support of that motion. For all reasons discussed in the Minute Order, the Court found that Defendants had failed to meet their burden to demonstrate that the boarding agreement and release provide a complete defense to the cause of action alleged in the TAC and to demonstrate Kilrain could not establish that he or Oliver sustained injuries or damages caused by Defendants’ conduct. (See Minute Order.)

In the present motion, Defendants effectively raise the same issues as those raised in the prior motion with regard to whether Kilrain can establish or prove that Defendants’ conduct caused any injury to Kilrain or Oliver. “ ‘In matters of statutory construction, we may not ignore restrictions the Legislature has inserted. [Citation.]’ [Citation.]…Code of Civil Procedure [s]ection 437c(f)(2) prohibits ‘a party’ from moving for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the Court, unless that party establishes to the satisfaction of the Court, newly discovered facts or circumstances or a change of law supporting the issues reasserted.” (Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 737-738; see also Le Francois v. Goel (2005) 35 Cal.4th 1094, 1109 [trial Court erred in granting a new motion for summary judgment that did not meet statutory requirements].)

To support the present motion, Defendants submit a separate statement setting forth facts which Defendants assert are newly discovered, material and undisputed. As set forth in the separate statement, Defendants assert that Kilrain was aware that Carrera and Oliver were participating in jumping lessons at shoreline. (Sep. Stmt., UMF Nos. 3, 4 & evidence cited therein.) Defendants also assert that Oliver’s back leg was injured while boarded at Shoreline, but contend that the injury was not sustained during a jumping lesson. (Id. at UMF Nos. 5 & 7.) To support these material facts, Defendants submit a declaration signed by Kjos in which Kjos declares that she observed Oliver for the duration of every jumping lesson and that Oliver was “never hurt during a jumping lesson.” (Kjos Decl., ¶ 12.)

To further support the facts set forth in Defendants’ separate statement regarding the nature of Oliver’s injury, Kjos states that, because horses frequently hurt themselves in various manners as further described in the Kjos declaration, Kjos is “always” checking for injuries and that this is the “first thing” Kjos does each morning when she arrives at the stalls. (Kjos Decl., ¶¶ 13-16.) In mid-October of 2020, when Kjos was checking the horses in the morning, Kjos noticed that Oliver’s back leg was swollen and that it appeared to Kjos that Oliver had “kicked the fence of his stall and gotten hurt that way.” (Id. at ¶ 16.) That same day, Kjos called Carrera and informed her of Oliver’s swollen leg. (Ibid.)

Kjos also asserts that on October 19, 2020, she sent Carrera a text message regarding Oliver’s leg, to which Carrera responded and provided information regarding Dr. Goss’s assessment of Oliver’s leg. (Kjos Decl., ¶ 18 & Appendix Exh. 10.) In the text message exchange with Carrera, Kjos advised Carrera that it may have been possible that Oliver had hurt his leg on the fence. (Id. at ¶ 19 & Exh. 10.) Kjos further states that Carrera participated in every jumping lesson that Oliver participated in at Shoreline. (Id. at ¶ 19.) Therefore, Kjos contends, Carrera would have known if Oliver’s back leg had been hurt during jumping lessons and would not have been asking Kjos how Oliver got hurt. (Ibid.)

Kjos also states that it is Shoreline’s practice to document if a horse is injured while jumping in the ring and that no such documentation exists with regard to Oliver. (Kjos Decl., ¶ 20.) In addition, Kjos asserts that the rails used for jumping at Shoreline are designed to be knocked over by the horse, without injury, if the horse cannot clear the rails when jumping over them. (Id. at ¶ 21.) Therefore, Kjos states, it is “highly unlikely” that Oliver would have gotten hurt by jumping over the rails. (Ibid.)

Though Defendants submitted a declaration signed by Kjos to support the prior motion, in which Kjos asserted that Kilrain’s ex-wife gave permission to and agreed to pay Kjos to train Carrera to jump Oliver and that Oliver was not hurt during any jumping lessons, as further noted by the Court in the Minute Order, wholly absent from the prior motion were the facts described above regarding any jumping incident or Oliver’s injuries. The facts described above also were not included in the prior Kjos declaration.

Specifically, the Court noted that Defendants had submitted no evidence addressing the allegations of the TAC including facts evidencing Kjos’s conduct in connection with the jumping incident, whether Kilrain provided permission to jump Oliver, or facts relating to, or any purported concealment or denial of Oliver’s injuries as alleged in the TAC. (See Minute Order.) The Court also noted that Defendants’ separate statement in support of the prior motion did not include facts demonstrating that Oliver was not injured while jumping. (Ibid.)

Though Defendants contend that the present motion is based on new facts or issues, available information indicates that the facts asserted in the Kjos declaration as further discussed above were known to Kjos when she observed Oliver’s injuries and at the time the prior motion was filed. Because the Kjos declaration is not based on newly discovered facts or circumstances, it is insufficient to support the renewed grounds for summary judgment asserted in the present motion. Because the present motion fails to comply with statutory requirements, the Court may deny the present motion on these grounds.

Even if the Court were to consider the information provided in the Kjos declaration submitted in support of the present motion, it is insufficient to demonstrate that Kilrain cannot establish his cause of action and that Defendants are entitled to judgment as a matter of law.

“ ‘The purpose of the summary judgment procedure is to discover, through the media of affidavits, whether the parties possess evidence which demands the analysis of trial. [Citations.] The object of the proceeding is to discover proof.” (Colvig v. KSFO (1964) 224 Cal.App.2d 357, 363 (Colvig).) Therefore, declarations submitted in support of a motion for summary judgment must include evidentiary facts sufficient to entitle the moving party to judgment and “ ‘shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.’ ”(Id. at 363; Code Civ. Proc., § 437c, subd. (d).) However, “statements of ultimate facts, conclusions of law, conclusions of fact, argumentative matter and statements based on hearsay” are insufficient to sustain a summary judgment. (Colvig, supra, 224 Cal.App.2d at p. 365; accord, West v. Sundown Little League of Stockton, Inc. (2002) 96 Cal.App.4th 351, 363 [statements of undisputed facts must have evidentiary support].)

In her present declaration, Kjos offers only conclusory and speculative statements that expand on the general unsupported allegations asserted in her prior declaration, which were not included in the separate statement submitted in support of the prior motion, regarding the manner in which Kjos suggests Oliver was injured. For example, Kjos states that on the morning she noticed Oliver’s back leg was swollen, it “appeared” to her that Oliver had kicked the fence of his stall. (Kjos Decl., ¶ 16.) Though Kjos provides sufficient information to demonstrate that she personally observed swelling on Oliver’s back leg one morning, Kjos provides no explanation for her assertion that it “appeared” to her that the swelling was the result of Oliver kicking the fence of his stall. In addition, Kjos provides no information regarding whether Oliver was injured following a jumping lesson or on what basis Kjos concluded the injury or swelling was not a result of a jumping incident. Absent a sufficient foundation for Kjos’s statement, the Court can only speculate as to whether Oliver was injured in the manner Kjos suggested by Kjos in her declaration. (See Aguilar, supra, 25 Cal.4th at p. 864 “[s]peculation…is not evidence].) The speculative nature of Kjos’s statement is highlighted by Kjos’s later assertion that she later advised Carrera that it “may have been possible” that Oliver hurt his leg on the fence. (See Kjos Decl., ¶ ¶ 19 & Exh. 10, italics added.)

The same problems exist with regard to Kjos’s statements that Carrera would have known if Oliver’s back leg was injured during jumping lessons and therefore would not have asked Kjos how Oliver got hurt. (See People v. Chatman (2006) 38 Cal.4th 344, 397 [“[g]enerally, a lay witness may not give an opinion about another's state of mind”].)

In addition, Kjos’s assertion that Oliver could not have been injured as a result of a jumping accident because there exists no documentation of such an injury is conclusory. (See Fuller v. Goodyear Tire & Rubber Co. (1970) 7 Cal.App.3d 690, 693 [declarations setting forth conclusions or ultimate facts are insufficient to support summary judgment].) For example, though Kjos asserts that it is Shoreline’s practice to document if a horse is injured in the jumping ring, wholly absent from the declaration is any description of or information about Shoreline’s documentation process. For example, Kjos provides no explanation of the manner in which injuries are documented or the persons involved in documenting any such injuries. Accordingly, the absence of any documentation does not, under the insufficient information provided here, preclude the possibility that Oliver was injured during a jumping accident notwithstanding a lack of documentation. For these reasons, Kjos’s assertion that there exists no documentation of a jumping injury is insufficient to permit an inference that Oliver was not injured in the manner alleged by Kilrain in the TAC.

Kjos’s assertion that Oliver could not have been injured while jumping over rails is also conclusory and speculative. Nothing in the information provided by Kjos forecloses the possibility that Oliver could have sustained injury in a manner other than by hitting a rail, or that that a jumping accident or injury could have happened in a manner that was not readily apparent to either Carrera or Kjos. Moreover, the information provided by Kjos does not demonstrate conclusively that any injury that Oliver may have sustained during a jumping lesson would have been immediately apparent to either Kjos or Carrera at the time the injury occurred, or that any such injury could not have manifested at a later time (such as on the morning that Kjos observed swelling of Oliver’s leg).

Furthermore, apart from declaring that she has worked as the manager at Shoreline since November 2018, and is familiar with “all aspects” of boarding horses, equine activities, and the management of horses, Kjos provides no information regarding her experience with or knowledge of observing and diagnosing horse injuries. Therefore, there is no evidence demonstrating that Kjos has any particular knowledge about horse injuries of the type at issue here sufficient to enable her to render an opinion about the manner in which Oliver was injured. (See People v. Williams (1992) 3 Cal.App.4th 1326, 1333 [“[m]atters beyond common experience are not proper subjects of lay opinion testimony”].)

Defendants further assert as an undisputed material fact that “[a]t the time of the jumping lessons, [Kilrain] was aware that [Carrera] and Oliver were participat[ing] [sic] in jumping lessons at Shoreline.” (Sep. Stmt., UMF No. 4.) This assertion also constitutes a conclusion and not an evidentiary fact. (See also San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313, internal citations and quotation marks omitted [evidentiary facts must be included in a separate statement].) In addition, Defendants present no reasoned argument, with citation to legal authority, to support their contention that Kilrain’s awareness that Oliver and Carrera were participating in jumping lessons equates to Kilrain granting Defendants the permission, implicitly or explicitly, to jump Oliver.

As Kjos contends that she informed only Carrera of Oliver’s swollen leg, a reasonable juror could find that this evidence establishes that Kjos failed to inform Kilrain of the circumstances under which Oliver’s injury occurred as alleged in the TAC. (See also Minute Order [discussing a lack of evidence presented in the prior motion regarding whether Kjos hid from or failed to disclose to Kilrain the circumstances under which Oliver’s injuries occurred for purposes of demonstrating whether the release provides a complete defense to the cause of action].)

Defendants further assert that on August 8, 2023, Kilrain verified the following response to Kjos’s requests for admissions requesting Kilrain to admit that Oliver was not injured during a jumping lesson at Shoreline: “[i]t is not known how the injury to Oliver's back left cannon bone occurred….After two years of investigating I have concluded that the most likely way Oliver's back cannon bone became injured was by an assault. At the deposition I figured out if a person were to swing a pipe like a golf club, the impact to the leg would be hard enough to leave a hemotoma [sic] that large.” (Sep. Stmt., UMF No. 6 & evidence cited therein.)

For effectively the same reasons discussed in the Minute Order, Kilrain’s response to Kjos’s request for admission no. 1, in which Kilrain asserts that he does not know how Oliver’s injury occurred, does not conclusively establish that Kilrain cannot reasonably obtain needed evidence or that Kilrain cannot establish that Oliver was injured in the manner alleged in the TAC. (Aguilar, supra, 25 Cal.4th at p. 855; see also Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 157 [“the person charged with negligence may ordinarily be assumed to possess at least equal, if not superior, knowledge of the affair to that possessed by the injured party”].)

In their reply papers, Defendants contend that Kilrain’s failure to file a responsive separate statement constitutes sufficient grounds for the Court to grant the present motion. Though a Court has discretion to grant summary judgment based on an opposing party’s failure to comply with the separate statement requirement (see Code Civ. Proc., § 437c, subd. (b)(3); Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 568-569), Kilrain’s failure to file a separate statement is inconsequential here because Defendants have not met their burden as further discussed above. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 [the party opposing a motion for summary judgment has no obligation to establish anything unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor].) The same analysis applies with respect to Defendants’ contention that Kilrain’s opposition consists of conclusory and speculative statements.

Defendants also contend that Kilrain’s opposition contains admissions that Oliver was not injured during jumping lessons and that Kilrain does not dispute that he was aware that Carrera and Oliver were participating in jumping lessons. Though Defendants have failed to shift the burden to Kilrain to demonstrate a triable issue of fact as further discussed above, the Court notes that in his opposition to the motion, Kilrain contends that Kjos “entered Oliver and Carrera into jumping lessons without [Kilrain’s] consent”, that Kilrain “did not sign a jump lesson agreement”, that Kjos did not “ask [Kilrain] to sign a jump lesson agreement, and that Kjos did not ask Kilrain “for his permission to train Oliver and Carrera to jump.” (Opp. at p. 2, ll. 21-22 & 25-28.) Kilrain further asserts that he had very little contact with Kjos including regarding jump lessons. (Id. at p. 2, l. 28-p. 3, l. 3.)

In addition, Kilrain asserts that “Oliver did kick the log with his back left leg many times in his jumping lessons”, that Kjos “continued to jump Oliver after kicking the log”, and that “Carrera stated that in one of Oliver's jumping lessons that Oliver fell to his front knees.” (Opp. at p. 3, ll. 14-17.) Based on these assertions, it is unclear to the Court the basis on which Defendants contend that Kilrain has admitted for present purposes that Kilrain gave permission for Kjos to jump Oliver or that Oliver was not injured during a jumping lesson.

Defendants effectively request the Court to infer from the evidence presented here that Oliver was not injured due to any negligent act on the part of Defendants during a jumping lesson. For all reasons discussed above, Defendants have failed to establish the existence of newly discovered facts or circumstances supporting the issues effectively reasserted in the present motion within the meaning of Code of Civil Procedure section 437c, subdivision (f)(2). In addition, the evidence presented by Defendants is conclusory, speculative, and therefore insufficient to permit the Court to draw an inference that Oliver’s injuries did not result from any breach of duty by Defendants in connection with a jumping accident as alleged in the TAC. There also exists insufficient evidence to permit the Court to infer the manner in which Oliver was injured, or to infer that Oliver was not injured during a jumping lesson, while boarded at Shoreline.

As Defendants have failed to demonstrate that Kilrain cannot establish one or more elements of the cause of action alleged in the TAC for all reasons discussed above, the Court will deny Defendants’ motion for summary judgment. The Court notes that, although the Court finds for present purposes that Defendants have not met their burden under the standards applicable to summary judgment, the Court’s findings herein should not be interpreted by either party as determinative of whether Kilrain can or cannot establish any fact at trial.

Defendants’ request for judicial notice:

Defendants request that the Court take judicial notice of the TAC and the Minute Order. It is not necessary for the Court to take judicial notice of documents filed in the present action by the parties or the Court’s rulings or orders issued in the present action. Therefore, the Court will deny Defendants’ request for judicial notice.

Defendants’ evidentiary objections:

Defendants assert objections to statements contained in the Kilrain declaration submitted in support of Kilrain’s opposition to the motion. The Court rules only on objections to evidence that are material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

As Defendants did not meet their burden on summary judgment, the burden did not shift to Kilrain to demonstrate the existence of a triable issue of fact. Therefore, the information contained in the Kilrain declaration is not material to the disposition of the motion. For this reason, the Court need not consider or rule on the objections asserted by Defendants.