Foam Holdings, Inc. d/b/a Alleguard v. Creative Foam Products, LLC, et al.

[[COURTLISTENER_SUBOPINION {"id":"11209215","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT                       
             EASTERN DISTRICT OF ARKANSAS                            
                   CENTRAL DIVISION                                  

FOAM HOLDINGS, INC.                                                       
d/b/a Alleguard                                        PLAINTIFF          

v.                      Case No. 4:23-cv-00320-KGB                        

CREATIVE FOAM PRODUCTS, LLC, et al.                 DEFENDANTS            

                        ORDER                                        
Pending before the Court are defendants Creative Foam Products, LLC (“Creative Foam”) 
and  Charles  Tyner’s  motion  to  exclude  plaintiff  Foam  Holdings,  Inc.  d/b/a  Alleguard’s 
(“Alleguard”) expert report, or, in the alternative, motion to compel and to amend the scheduling 
order (hereinafter “motion to exclude expert”) (Dkt. No. 121); Alleguard’s motion for leave to file 
an out-of-time response to defendants’ motion to exclude expert (hereinafter “motion to file 
response”) (Dkt. No. 123); Alleguard’s motion to extend discovery deadlines and continue the trial 
date with memorandum of law in support (hereinafter “motion to extend deadlines”) (Dkt. No. 
127); and Creative Foam’s motion for protective order (Dkt. No. 128).  Defendants filed a response 
in opposition to Alleguard’s motion for leave to file response (Dkt. No. 124).  On November 10, 
2025, the Court held a hearing on the pending motions (Dkt. No. 133).  On the same day, 
Defendants filed a motion for voluntary dismissal of their counterclaims (Dkt. No. 131).  Alleguard 
has filed a response to defendants’ motion for voluntary dismissal of their counterclaims (Dkt. No. 
135).                                                                     
At the hearing, the Court requested that by November 19, 2025, the parties notify the Court 
of dates, between now and December 31, 2025, that their expert witnesses are available to be 
deposed.  Additionally, the Court asked the parties whether any discovery disputes now pending 
before United States Magistrate Judge J. Thomas Ray will no longer require a ruling by the Court, 
if the  Court grants defendants’ motion  for voluntary  dismissal  of  their counterclaims.   On 
November 19, 2025, defendants responded informally to the Court that they believe that their 
request for additional supplementation of discovery concerning Mr. Tyner’s compensation at 
Alleguard will be rendered moot if the Court is to grant their motion to dismiss their counterclaims.  
Defendants also provided several dates in December 2025 that their experts and counsel are 

available for depositions.  On November 19, 2025, Alleguard responded informally to the Court 
with dates that Alleguard’s expert witness is available for deposition and raised for the first time 
with the Court what appear to be new discovery issues.                    
I.   Overview Of The Case                                            
Alleguard filed this case on April 3, 2023, claiming defendants violated the federal Defend 
Trade Secrets Act,
18 U.S.C. § 1831
, et seq., and the Arkansas Trade Secrets Act, Arkansas Code 
Annotated § 4-75-601 et seq. (Dkt. No. 1, ¶¶ 55–84).  Alleguard also brings a breach of contract 
claim against Tyner based on an alleged confidentiality agreement (Id., ¶¶ 85–93) and an additional 
claim against both defendants for unjust enrichment (Id., ¶¶ 94–96).  Alleguard seeks injunctive 

relief against defendants (Id., ¶¶ 97–105).                               
Defendants filed an amended answer that generally denies the allegations in Alleguard’s 
complaint and that asserts defenses and counterclaims (Dkt. No. 60).  Tyner brings counterclaims 
against Alleguard for violation of the Arkansas Sales Representative Act, for unpaid wages in 
violation of Arkansas Code Annotated § 11-4-405, for breach of contract, for unjust enrichment, 
and for fraud (Id., at 21–23, ¶¶ 30-48).  Defendants bring counterclaims against Alleguard for 
tortious interference with a contractual or business expectancy and for defamation (Id., at 24–25, 
¶¶ 49–58).                                                                
On  August  6,  2025,  this  Court  entered  its  Third  Amended  Final  Scheduling  Order 
(hereinafter the “Operative Scheduling Order”) setting this case for a bench trial sometime during 
the week of January 26, 2026 (Dkt. No. 120, ¶ 1).  The Operative Scheduling Order provides that 
case-in-chief expert disclosures, including reports, must be made by August 29, 2025, and rebuttal 
expert disclosures, including reports, must be made by September 29, 2025 (Id., ¶ 3).  The 

Operative Scheduling Order set a deadline of November 12, 2025, for the completion of discovery 
(Id., ¶ 2).  The Operative Scheduling Order further provides with respect to the November 12, 
2025, discovery deadline, “[t]he parties may conduct discovery beyond this date if all parties are 
in agreement to do so[.]  The Court, however, will not resolve any disputes in the course of this 
extended discovery.  All discovery requests and motions must be filed sufficiently in advance of 
the discovery deadline set forth in this order to allow for a timely response.” (Id. (emphasis 
added)).  The deadline for all motions, except class certification motions and motions in limine, in 
the Operative Scheduling Order is November 28, 2025 (Id., ¶ 5).           
The Court will discuss each of the pending pretrial motions.         

II.  Defendants’  Motion  To  Exclude  Expert  And  Plaintiff’s  Motion  To  File 
     Response                                                        

     A.   Factual Background                                         
On October 1, 2025, defendants filed their motion to exclude expert seeking to exclude  
Alleguard’s damages expert report, or, in the alternative, to compel disclosure of supporting 
evidence for the damages expert’s report and to amend the scheduling order to permit defendants’ 
time to disclose a rebuttal expert witness and to depose Alleguard’s damages expert (Dkt. No. 
121).  In the motion to exclude expert, defendants allege that, on August 29, 2025, Alleguard 
produced to defendants a report on damages from its expert (Dkt. No. 121, ¶ 2).  According to 
defendants, in correspondence producing the report, Alleguard’s counsel promised to supplement 
Alleguard’s damages expert’s disclosures and report to identify documents that are cited in support 
of the report (Id.).  On September 15, 2025, defendants followed-up with counsel for Alleguard 
regarding the promised supplemental expert disclosures (Id., ¶ 3).  Defendants assert that, as of the 
date when they filed their motion to exclude expert, Alleguard had ignored their request for the 
supplemental expert disclosures (Id., ¶ 4).  In their motion to exclude expert, defendants request 

that the Court, pursuant to Federal Rule of Civil Procedure 37(c)(1), exclude Alleguard’s damages 
expert’s report and preclude its damages expert from testifying at trial (Id., ¶ 6).  Alternatively, 
defendants seek to compel the supplemental expert disclosures pursuant to Federal Rule of Civil 
Procedure 37(a) (Id., ¶¶ 7–9).  Additionally, defendants seek an additional 30 days from the date 
of Alleguard’s production of the documents to serve their rebuttal expert disclosures and report 
(Id., ¶ 9).                                                               
Alleguard did not file a timely response to defendants’ motion to exclude expert.  Instead, 
on October 24, 2025, 23 days after the motion was filed, Alleguard filed a motion to file response 
(Dkt. No. 123).1                                                          

     B.   Motion To File Response (Dkt. No. 123)                     
In the motion to file response, Alleguard maintains that it “timely served its expert 
disclosure and report on August 29, 2025,” (Id., ¶ 2) but that defendants did not serve any rebuttal 
expert report or request an extension to do so prior to the September 29, 2025, deadline set forth 
in the Court’s Operative Scheduling Order (Id., ¶¶ 2–3).  Alleguard claims that its failure to file a 
timely response to the motion to exclude expert was due to “a calendaring error within the office 
of Plaintiff’s lead counsel.” (Id., ¶ 6).  Alleguard asserts that, on October 21, 2025, when it 


1  According to Alleguard, its response to the motion to exclude was due on October 15, 
2025 (Dkt. No. 123, ¶ 6).                                                 
discovered the error, it served copies of all documents referenced in its damages expert’s report on 
defendants’ counsel, informed counsel of its error in not responding to the motion to exclude 
expert, and stated that it would consent to the modification of the Operative Scheduling Order to 
permit defendants an additional 30 days to produce a rebuttal witness report, so long as, defendants 
would work with counsel for Alleguard on a date for Alleguard to depose the rebuttal expert 

witness (Id.).  Alleguard asked defendants to withdraw their motion to exclude expert, but 
defendants did not agree to do so; Alleguard filed it motion to file response (Id., ¶¶ 7–9).  Alleguard 
contends that it would be unduly prejudiced if it was not permitted to file its response because it 
would be unable to call its chosen damages expert to testify at trial (Id., ¶ 10). 
Defendants respond that Alleguard’s production of its expert report did not comply with 
Federal Rule of Civil Procedure 26.  According to defendants, counsel for Alleguard was required 
to supply the underlying damages calculations and correspondence with their expert that formed 
the basis of the expert’s opinions along with the report (Dkt. No. 124, ¶ 2).  Defendants state that 
Alleguard promised to supplement their expert’s report on September 2, 2025, but counsel for 

Alleguard failed to do so (Id.).  On September 15, 2025, counsel for defendants followed-up with 
an email to counsel for Alleguard inquiring about the status of the missing supplemental expert 
records, but counsel for Alleguard did not respond to the request (Id., ¶ 3).  Defendants contend 
that they were unable to comply with the rebuttal expert disclosure deadline because of the absence 
of the materials withheld by Alleguard (Id., ¶ 4).                        
Defendants also ask the Court to deny Alleguard’s  motion to file response because 
Alleguard’s motion was not accompanied by a brief and because Alleguard has not demonstrated 
good cause for missing the deadline to file a response (Id., ¶¶ 12–13).  Alleguard asserts a 
“calendaring error” on the part of lead counsel, but defendants contend that counsel for Alleguard 
has missed several deadlines in this case and has failed to keep promises, showing a lack of 
diligence (Id., ¶ 13).  Defendants argue that a vague calendaring error does not amount to excusable 
neglect and that the Court should deny the motion to file response (Id., ¶ 15 (citing Hawks v. 
JPMorgan Chase Bank,
591 F.3d 1043, 1048
(8th Cir. 2010)).  Further, defendants assert that they 
were prejudiced by the inability to obtain a rebuttal report (Id., ¶ 16).  Defendants contend that 

granting Alleguard’s motion would jeopardize the January 26, 2026, trial setting and result in 
requiring the Court to extend deadlines for rebuttal experts, Daubert motions, and motions for 
summary judgment and to alter the scheduling order in a manner that would reward Alleguard’s 
delay (Id., ¶ 21).                                                        
After considering the filings of the parties and the arguments of counsel at the hearing, the 
Court grants Alleguard’s motion to file response (Dkt. No. 123).  The Court agrees with defendants 
that Alleguard has not provided an adequate explanation for its failure to file a timely response to 
defendants’ motion to exclude expert.  The Court does not condone what appears to the Court to 
be Alleguard’s attempts to delay discovery in this case.  However, the Court acknowledges that 

Alleguard produced to defendants the materials that defendants requested in their motion to 
exclude expert on October 21, 2025.  Defendants had the opportunity, on or before September 29, 
2025,  to move to compel the production of Alleguard’s expert’s supporting documents, to disclose 
a rebuttal expert and report as required by the Operative Scheduling Order, or to file a motion to 
amend the Operative Scheduling Order to permit an extension of the deadline, but defendants 
failed to do so by the September 29, 2025, deadline.  Under these circumstances where neither 
party appears to have clean hands, the Court grants Alleguard’s motion to file a response to 
defendants’ motion to exclude expert and because of the short deadline necessitated by the January 
26, 2026, trial date, the Court will consider Alleguard’s motion to file response as well as the 
arguments made at the hearing as Alleguard’s arguments in opposition to defendants’ motion to 
exclude expert (Dkt. No. 123).                                            
     C.   Motion To Exclude Expert (Dkt. No. 121)                    
The Court now turns its attention to defendants’ motion to exclude expert (Dkt. No. 121).  
In the motion to exclude expert, defendants seek first to exclude Alleguard’s damages expert report 

and to exclude Alleguard’s expert from testifying at trial, or, in the alternative, to compel the 
production of the supplemental materials that were not initially produced along with the expert 
report, and to amend the scheduling order to permit defendants to serve their rebuttal expert 
disclosures and report (Dkt. No. 121).  As set forth above, it is the Court’s understanding that, on 
October 21, 2025, Alleguard provided defendants the supporting materials to its expert report that 
defendants were seeking to compel in the motion to exclude expert and that the motion to compel 
portion of the motion to exclude expert is now moot (Dkt. No. 121, ¶ 9).  Additionally, as set forth 
above, defendants failed to disclose a rebuttal expert and report as required by the Court’s 
Operative Scheduling Order (Dkt. No. 120).  The Court understands that it is defendants’ position 

that  defendants  were  unable  to  disclose  a  rebuttal  expert  because  defendants  did  not  fully 
understand Alleguard’s expert’s opinion because defendants did not have the expert’s supporting 
materials in a timely manner.  Given all the circumstances, the Court denies defendants’ motion to 
exclude expert but grants defendants’ motion to amend the Court’s Operative Scheduling Order to 
permit defendants to disclose a rebuttal expert and report as set forth in this Order.    
The Court amends the Operative Scheduling Order as follows:          
1.   Defendants shall have until December 8, 2025, to provide Alleguard with rebuttal 
     expert disclosures, including reports.  These disclosures must be in writing, signed, 
     and served.                                                     
2.   Both Alleguard and defendants shall have until December 31, 2025, to depose each 
other’s expert witnesses.  The parties may, should they choose to do so, conduct 
the expert depositions at the Richard Sheppard Arnold United States Courthouse.  
If the parties choose to conduct the depositions at the Courthouse, please contact 
Tracy  Washington,  Courtroom  Deputy  for  The  Honorable  Kristine  Baker,  to 

arrange a room for the deposition.  If the parties do not choose to hold the expert 
depositions at the Richard Sheppard Arnold United States Courthouse, Judge Baker 
will be available by telephone should any objections arise during the course of the 
depositions that require a ruling from the Court.               
3.   All motions, except motions for class certification and motions in limine, must be 
filed on or before January 6, 2026.                             
4.   Motions filed pursuant to Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579
(1993), must be filed on or before January 6, 2026.  They shall not be filed as a 
motion in limine.                                               

5.   Pretrial disclosure sheets must be filed simultaneously by the parties according to 
the outline contained in Local Rule 26.2 no later than January 12, 2026.  That 
witnesses and exhibits must be listed on the pretrial information sheet does not 
relieve a party of the obligation to provide the names of witnesses and exhibits in 
response to discovery requests.  Objections to opposing parties’ pretrial disclosure 
sheets will be due on January 20, 2026.                         
6.   All trial briefs must be filed no later than January 12, 2026.  Responding trial briefs 
must be filed no later than January 20, 2026.                   
7.   Responses to motions for summary judgment and Daubert motions shall be filed 
     on or before January 20, 2026.  The Court does not foresee permitting any reply 
     briefs given the abbreviated schedule.                          
8.   The case remains scheduled for a bench trial some time the week of January 26, 
     2026.  Unless specifically modified by this Court in a written Order, all other 

     deadlines previously set remain in effect (Dkt. No. 120).       
The Court denies defendants’ motion to exclude Alleguard’s damages expert’s report and 
to exclude Alleguard’s damages expert from testifying at trial based on the failure to disclose the 
supplemental material when Alleguard initially produced the expert report on August 29, 2025 
(Dkt. No. 121).  The Court will still entertain a motion to exclude Alleguard’s expert’s testimony 
on Daubert grounds or other evidentiary grounds if a timely motion is made as set forth in this 
Order.  The Court denies as moot defendants’ motion to compel and grants defendants’ motion to 
amend the Operative Scheduling Order as set forth in detail above (Id.).  
III.  Alleguard’s Motion To Extend Discovery Deadlines And Continue The Trial 
     Date (Dkt. No. 127)                                             

Alleguard filed a motion to extend deadlines (Dkt. No. 127).  In the motion, Alleguard 
notes that in the Operative Scheduling Order, the discovery deadline was November 12, 2025, and 
the Daubert and dispositive motions deadlines are November 28, 2025, with motions in limine due 
on January 12, 2026 (Dkt. No. 127, ¶ 2).  Alleguard argues that, because of unresolved discovery 
disputes, there is good cause to modify the scheduling order and continue the trial (Id. ¶ 4).  
Alleguard identifies four categories of discovery that are not complete:  depositions of expert 
witnesses, late disclosure of over 50 new witnesses by defendants, ongoing conferral over written 
discovery, and Alleguard’s 30(b)(6) notice to defendant Creative Foam (Id., ¶ 5).   
At the hearing, defendants opposed Alleguard’s motion.  Defendants pointed out that this 
case has been pending for over two and a half years, and defendants argue that Alleguard’s delays 
have caused discovery to be incomplete.                                   
As set forth above, the Court has determined that several deadlines in the Court’s Operative 
Scheduling Order should be extended because all of the parties to this case have acted in ways that 

have caused delays in discovery.  The Court does not find that there is good cause to delay the 
bench trial in this case because the case has been pending for over two and a half years and 
discovery is substantially complete.  Accordingly, Alleguard’s motion to extend deadlines is 
granted, in part, and denied, in part (Dkt. No. 127).  The Court amends several deadlines in the 
Operative Scheduling Order as set forth specifically in this Order, but the case remains set for a 
bench trial the week of January 26, 2026.                                 
IV.  Creative Foam’s Motion For Protective Order (Dkt. No. 128)      
Also before the Court is Creative Foam’s motion for protective order pursuant to Federal 
Rule of Civil Procedure 26(c).  Federal Rule of Civil Procedure 26(c) provides: 

      (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise 
stipulated or ordered by the court, if the witness is not required to provide a written 
report, this disclosure must state:                                  

          (i) the subject matter on which the witness is expected to present 
     evidence under Federal Rule of Evidence 702, 703, or 705; and   
          (ii) a summary of the facts and opinions to which the witness is 
     expected to testify.                                            

Fed. R. Civ. P. 26                                                        
Creative Foam states that on October 29, 2025, 14 days before the discovery cutoff, 
Alleguard served a Rule 30(b)(6) deposition notice unilaterally setting a deposition on November 
12, 2025, the last day of discovery, that demanded that Creative Foam identify, prepare, and 
produce corporate designees to testify on 25 broad topics covering nearly every aspect of the case 
(Dkt. No. 128, ¶ 4).  On November 4, 2025, Creative Foam served objections to Alleguard and 
asked to confer (Id., ¶ 5).  Alleguard responded that they were available to meet on November 10, 
2025, two days before the scheduled deposition (Id.).  When asked if Alleguard would withdraw 
the notice of deposition, Alleguard refused (Id.).                        
As Creative Foam notes, discovery has been ongoing in this case for almost 14 months.  

Alleguard has had ample opportunity to schedule the deposition of Creative Foam’s 30(b)(6) 
designee within the discovery period.  Additionally, defendants point out that Alleguard has 
already taken the depositions of Creative Foam’s owner, Greg Oaks, and its employee, Charles 
Tyner,  who  have  provided  substantial  information  regarding  the  information  requested  by 
Alleguard.  Defendants argue that it is unreasonable and indicates a motivation to delay discovery, 
and perhaps the trial of this matter, for Alleguard to serve this broad ranging 30(b)(6) notice of 
deposition so late in discovery.                                          
In an informal response to the Court, Alleguard states that, after receiving defendants’ 
motion to dismiss voluntarily their counterclaims with prejudice, Alleguard will eliminate seven 

of the 25 topics from its Rule 30(b)(6) notice that relate to defendants’ counterclaims. 
Even with these seven topics eliminated, Alleguard’s choice to send a Rule 30(b)(6) notice 
of deposition on October 29, 2025, that schedules a Rule 30(b)(6) deposition of Creative Foam for 
the last day of the discovery period listing 25 broad ranging topics on which the appropriate 
designee must testify fails to comply with the Court’s Operative Scheduling Order (Dkt. No. 120, 
¶ 2).  The Court’s Operative Scheduling Order requires that “[a]ll discovery requests and motions 
must be filed sufficiently in advance of the discovery deadline set forth in this order to allow for a 
timely response.” (Dkt. No. 120, ¶ 2).  Filing the Rule 30(b)(6) notice of deposition setting a 
deposition of this nature for the last day of discovery without first consulting opposing counsel 
about availability fails to comply with the Court’s Order requiring that all discovery requests be 
made with sufficient time to permit a timely response to the request, and the Court will not permit 
the deposition.                                                           
Accordingly, the Court grants Creative Foam’s motion for protective order and quashes 
Alleguard’s October 29, 2025, Rule 30(b)(6) deposition notice in its entirety (Dkt. No. 138, ¶ 9).   

All  parties  are  precluded  from  conducting  any  further  discovery  beyond  what  is  expressly 
permitted by this Order or by any Order made by Judge Ray to resolve disputes already raised by 
the parties.                                                              
V.   Motion To Voluntarily Dismiss Counterclaims (Dkt. No. 131)      
Defendants have filed a motion for voluntary dismissal of their counterclaims pursuant to 
Rule 41 of the Federal Rules of Civil Procedure (Dkt. No. 131).  Alleguard has filed a response to 
defendants’ motion for voluntary dismissal of their counterclaims (Dkt. No. 135).  For the 
following  reasons,  the  Court  grants  defendants’  motion  for  voluntary  dismissal  of  their 
counterclaims (Dkt. No. 131).                                             

Defendants state that discovery is now substantially complete, and, upon further review of 
the record evidence, defendants have determined that dismissal of their counterclaims with 
prejudice is appropriate (Id., ¶¶ 7; 11).                                 
Among  defendants’  counterclaims  were  claims  related  to  Tyner’s  compensation.  
Defendants state in their brief supporting their motion that on the date they filed the motion they 
received wage and commission records produce by Alleguard indicating that payment may have 
been made for the sales at issue in the counterclaims (Dkt. No. 132, at 3).  Defendants state that 
their review of the discovery caused them to determine that dismissal of their counterclaims is the 
appropriate course and is consistent with judicial economy (Id.).         
Defendants further argue that Alleguard is not entitled to recover attorneys’ fees and costs 
because they seek voluntary dismissal of their counterclaims with prejudice (Id., at 4 (citing 
AeroTech, Inc. v. Estes,
110 F.3d 1523, 1528
(10th Cir. 1997) (“We continue to adhere to the rule 
that a defendant may not recover attorneys’ fees when a plaintiff dismisses an action with prejudice 
absent exceptional circumstances.”); Colombrito v. Kelly,
764 F.2d 122
, 133-34 (2d Cir. 1985) 

(“When a lawsuit is voluntarily dismissed with prejudice under Fed. R. Civ. P. 41(a)(2), attorneys’ 
fees have almost never been awarded.”); Cauley v. Wilson,
754 F.2d 769, 771
(7th Cir. 1985) 
(“Fees are not awarded [under Rule 41(a)(2)] when a plaintiff obtains a dismissal with prejudice 
because the defendant cannot be made to defend again.”); Smoot v. Fox,
353 F.2d 830, 833
(6th 
Cir. 1965) (holding that attorney fees are not proper under Rule 41(a)(2) where the dismissal is 
with prejudice)).  See De Castro v. Castro, Case No. CV 18-1449 (DWF/ECW),
2021 WL 
1600482
, at *2 (D. Minn. Apr. 23, 2021) (determining that “there is no Eighth Circuit precedent 
for imposing attorney’s fees and costs as a condition for voluntary dismissal with prejudice” and 

declining to do so because there were no exceptional circumstances warranting doing so); Ferrari 
v. Best Buy Co., Case No. CV 14-2956 (DWF/FLN),
2016 WL 5508818
, at *6 (D. Minn. Sept. 28, 
2016) (determining that an award of attorney fees would be “inappropriate” because the case was 
being voluntarily “dismissed with prejudice.”).                           
Alleguard responds that it does not oppose the Court granting defendants’ dismissal of their 
counterclaims, but because, according to Alleguard, the motion “rests solely on serious, blatantly 
false statements and misrepresentations to the Court and fails to explain why these counterclaims 
were not dismissed much sooner,” Alleguard asserts that it is premature for the Court to rule on 
Alleguard’s right to recover its reasonable fees and costs (Dkt. No. 135, at 1–2).  Alleguard 
contends that the evidence produced on November 12, 2025, the date that defendants filed their 
motion to dismiss voluntarily their counterclaims, was not “new evidence” because it was the same 
evidence that had been produced on May 12, 2025, albeit in a different format (Dkt. No. 135, at 
2–3).    Alleguard  maintains  that  these  records  had  nothing  to  do  with  defendants’  other 
counterclaims for defamation and tortious interference, and defendants have not offered any 
explanation for dismissing these counterclaims (Id., at 3).  Alleguard asserts that “defendants have 

delayed unnecessarily and have caused Plaintiff to incur not-insignificant expense defending 
against their baseless counterclaims as a result” (Id., at 4).            
Alleguard argues that Federal Rule of Civil Procedure 41(a)(2) allows the Court broad 
discretion and empowers the Court to order dismissal “on terms the Court considers proper.”  Fed. 
R. Civ. P. 41(a)(2).  Alleguard acknowledges that it is not typical to award fees and costs where 
the dismissal is with prejudice, but it argues that it is “within the range” of terms that a Court might 
consider proper in a particular case when there are extraordinary circumstances (Id., at 4 (citing 
Carroll v. E One Inc,
893 F.3d 139, 149
(3d Cir. 2018) (determining that exceptional circumstances 
existed to award attorneys’ fees and costs upon a voluntary dismissal with prejudice where a 

litigant failed to perform a meaningful pre-suit investigation, and litigant had a repeated practice 
of bringing claims and dismissing them with prejudice after inflicting substantial costs on the 
opposing party and the judicial system); AeroTech, Inc. v. Estes,
110 F.3d 1523, 1528
(10th Cir. 
1997) (determining that that fees may be awarded in “exceptional circumstances” where litigant 
repeatedly brings claims and dismissing them with prejudice, but court did not find exceptional 
circumstances in that case); Colombrito v. Kelly,
764 F.2d 122, 134-35
(2d Cir. 1985) (determining 
that “Rule 41(a)(2) does not altogether foreclose fees in the event of a dismissal with prejudice” 
but that such an award might be appropriate if, for example, a litigant had “made a practice of 
repeatedly bringing potentially meritorious claims and then dismissing them with prejudice after 
inflicting substantial litigation costs on the opposing party and the judicial system” (emphasis 
added))).                                                                 
Because Alleguard does not object to defendants’ motion for voluntary dismissal of their 
counterclaims with prejudice, the Court grants defendants’ motion for voluntary dismissal of their 
counterclaims (Dkt. No. 131).  Defendants’ counterclaims are dismissed with prejudice (Dkt. No. 

60).                                                                      
As for attorneys’ fees and costs, the Court does not find extraordinary circumstances in this 
case to withhold a ruling on attorneys’ fees and costs as Alleguard requests.  There is no indication 
on the record before the Court that defendants failed to investigate their counterclaims prior to 
bringing them.  Further, there is no indication on the record before the Court that defendants have 
made a practice of repeatedly bringing counterclaims and dismissing them with prejudice after 
causing substantial litigation costs in order to warrant “exceptional circumstances” that would give 
rise  to  a  later  award  of  attorneys’  fees  and  costs  to  Alleguard.    Accordingly,  defendants’ 
counterclaims are dismissed with prejudice, and each party shall bear its own costs and fees in 

regard to the counterclaims (Dkt. No. 60).                                
VI.  Additional Discovery                                            
On November 19, 2025, Alleguard responded informally to the Court with dates that 
Alleguard’s expert witness is available for deposition and raised for the first time with the Court 
what appear to be new discovery issues.                                   
With respect to the claimed late disclosure of over 50 new witnesses and service of 
declarations of testimony after the close of discovery, the Court rules as follows.  If witnesses were 
disclosed prior to the November 12, 2025, discovery deadline (Dkt. No. 120), and Alleguard 
concedes many if not all of these 50 witnesses were, those witnesses will be permitted to testify at 
the trial of this matter.  If Alleguard wishes to challenge the scope of the testimony offered by any 
witness at trial based on a claim that the testimony offered is outside the scope of the timely 
disclosure, Alleguard may do so, and the Court will rule on contemporaneous objections at trial.  
The Court is aware of no general requirement that declaration testimony be disclosed in advance 
of its use by a party and prior to a discovery deadline.  However, the Court will rule on 

contemporaneous objections to the use or attempted use of declaration testimony. 
Further, the Court rules that no party may raise a new discovery issue now, after the close 
of discovery, that was not previously raised with this Court or with Judge Ray.  All parties have 
had ample time for discovery in this case and have had the resources of the Court available to rule 
on their disputes to keep discovery moving in this case.  For example, if Creative Foam’s financial 
statements are not the subject of a pending request with Judge Ray, Alleguard may not raise an 
issue now about these documents.  Likewise, if Alleguard’s customers contacted or solicited since 
joining Creative Foam are not the subject of a pending request with Judge Ray, Alleguard may not 
raise an issue now about this topic.  Judge Ray will address the remaining pending disputes before 

him to resolve only those disputes.                                       
VII.  Conclusion                                                     
The Court grants Alleguard’s motion to file a response to defendants’ motion to exclude 
expert (Dkt. No. 123).  The Court has considered Alleguard’s motion to file response in ruling on 
defendants’ motion to exclude expert, as well as arguments made by Alleguard’s counsel at the 
hearing on this matter (Id.).  The Court grants, in part, and denies, in part, defendants’ motion to 
exclude Alleguard’s expert report, or, in the alternative, motion to compel and to amend the 
scheduling order (Dkt. No. 121).  The Court denies defendants’ motion to exclude Alleguard’s 
damages expert as well as his report, denies as moot defendants’ motion to compel, and grants 
defendants’  motion  to  amend the  Operative  Scheduling  Order  U/d.).   The  Court  amends  the 
Operative Scheduling Order as set forth in detail in this Order.  The Court grants, in part, and 
denies, in part, Alleguard’s motion to extend discovery deadlines as set forth in detail in this Order, 
but the Court denies Alleguard’s motion to continue the trial date (Dkt. No. 127).  The Court grants 
Creative Foam’s motion for protective order (Dkt. No. 128).  The Court grants defendants’ motion 
for voluntary dismissal of their counterclaims  (Dkt.  No.  131).  Defendants  counterclaims  are 
dismissed with prejudice with each party to bear its own costs and fees (Dkt. No. 60). 
 It is so ordered this 21st day of November, 2025. 

                                     Kristine G. Baker 
                                     Chief United States District Judge 

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