Moller v. Martian Sales, Inc., et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KATHLEEN MOLLER CIVIL ACTION
VERSUS NO. 24-228
c/w 24-781
MARTIAN SALES, INC., ET AL. SECTION: D (2)
ORDER AND REASONS
Before the Court is a Motion for Leave to Supplement Argument and Evidence
of Plaintiff’s Motion for Partial Summary Judgment, filed by plaintiff, Kathleen
Moller. 1 Defendants, LP Ind., LLC, CAG Holdings, LLC, RMH Holdings, Inc.,
Martian Sales, Inc., Johnson Foods, LLC, JOpen, LLC, Nuza, LLC, Calibre
Manufacturing, LLC, FMK Group, Inc., PNW Holdings, LLC, CC US Holdings, LLC,
Peyton Palaio, Mark Jennings, David Gabbay, and Mark Reilly (collectively,
“Defendants”) oppose the Motion.2 The Motion was set for submission on December
23, 2025,3 and is therefore ripe for determination.
After careful consideration of the parties’ memoranda and the applicable law,
the Motion is GRANTED in part and DENIED in part.
1 R. Doc. 186.
2 R. Doc. 190.
3 R. Doc. 186.
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I. FACTUAL AND PROCEDURAL BACKGROUND4
This is an action for the wrongful death of Harmony Miller, who died on
February 6, 2023, allegedly as the result of the ingestion of OPMS brand kratom.5
Plaintiff, the mother of Harmony Miller, alleges that Defendants are liable for the
death of her daughter because they import, package, distribute, and/or sell dangerous
kratom products to Louisiana residents, including Harmony. 6 Pertinent to the
instant Motion, Plaintiff alleges that, “[a]ll defendants named herein are alter egos
of one another and operate as a single business enterprise through a secretive web of
affiliates, individuals, shell companies, alter egos, business names, assumed names,
and/or trade names,”7 and that, “OPMS kratom is imported, packaged, distributed,
and sold through a complex web of companies that includes Defendants. This web is
referred to herein as the OPMS enterprise.”8
In May 2024, several of the defendants filed motions to dismiss for lack of
personal jurisdiction under Fed. R. Civ. P. 12(b)(2) and failure to state a claim under
Fed. R. Civ. P. 12(b)(6).9 During a Telephone Status Conference held on July 16,
2024, the Court issued an oral Order denying the motions without prejudice, granting
Plaintiff’s request to conduct jurisdictional discovery, and gave Plaintiff until
January 27, 2025 to conduct jurisdictional discovery.10 On May 23, 2025, all of the
4 In the interest of judicial economy, and because the factual background of this case was extensively
detailed in the Court’s December 3, 2025 Order and Reasons (R. Doc. 184), the Court will limit its
recitation of the factual and procedural background to matters relevant to the instant Motion.
5 R. Docs. 1, 7, & 100.
6 R. Doc. 100 at ¶¶ 25–64.
7 Id. at ¶ 25.
8 Id. at ¶ 54.
9 R. Docs. 32 & 45. See R. Docs. 48, 50, & 51.
10 R. Doc. 54.
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Defendants filed another Motion to Dismiss, again asserting that Plaintiff’s claims
should be dismissed for lack of personal jurisdiction as to all defendants except
JOpen, LLC under Rule 12(b)(2) and for failure to state a claim against any defendant
under Rule 12(b)(6).11 Plaintiff opposes the Motion, Defendants have filed a Reply,
and the Motion to Dismiss remains pending as of the date of this Order.12 On June
30, 2025, the same day Plaintiff filed an Opposition to the Motion to Dismiss, Plaintiff
filed a Motion for Partial Summary Judgment – Determination of Piercing the Veil,
Single Business Enterprise, and Alter Ego for Jurisdictional Purposes.13 Defendants
oppose the Motion,14 which remains pending at this time.
In the instant Motion, Plaintiff seeks leave under Fed. R. Civ. P. 15(d) to
supplement the argument and evidence supporting her Motion for Partial Summary
Judgment. 15 Plaintiff seeks to supplement her Motion for Partial Summary
Judgment with evidence obtained during merits-based discovery that occurred since
filing the motion, including an expert report prepared by Ryan Clark, two recent
orders issued by state courts in Louisiana and Colorado denying requests for
dismissal based upon lack of personal jurisdiction in wrongful death cases involving
the same defendants, and the deposition testimony of Peyton Palaio and JOpen’s
corporate representative.16 Plaintiff asserts that the evidence is relevant to her alter
11 R. Doc. 122.
12 See R. Docs. 130 & 148.
13 R. Doc. 132.
14 R. Doc. 143.
15 R. Doc. 186.
16 R. Doc. 186-1 at pp. 2–3. Although not mentioned in her Memorandum in Support of her Motion for
Leave, Plaintiff’s proposed pleading includes a section titled “Martian Sales, Inc. is the manufacturer
of the OPMS kratom product consumed by the decedent as a matter of law.” R. Doc. 186-2 at p. 2.
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ego/single business enterprise claims, that she is acting in good faith in
supplementing her evidence and argument, and that Defendants will not be unfairly
prejudiced by the supplementation of the evidence since all but the expert report
came from Defendants during discovery.17
Defendants argue that Rule 15(d) does not apply because Plaintiff is not trying
to supplement a pleading, as defined by Rule 7(a), and is instead trying to supplement
a motion.18 Defendants agree that this Court has discretion to grant Plaintiff leave
to supplement the evidence and argument supporting her Motion for Partial
Summary Judgment, but assert that the Court can deny Plaintiff’s request if it
concludes that the explanation for her tardiness is unpersuasive or that Plaintiff
lacked diligence in filing her pleading.19 Defendants claim that Plaintiff has given no
explanation for her tardiness and lack of diligence, and that the Court should deny
her Motion.20 Defendants assert that Plaintiff offers no explanation for why the
testimony she now seeks to include with her prior motion was not sought during
jurisdictional discovery, when she conducted six other corporate depositions prior to
the January 27, 2025 deadline.21 Defendants claim that the testimony is repetitive
and consistent with prior testimony, and is therefore not “new” evidence. 22
This argument was not raised in Plaintiff’s Motion for Partial Summary Judgment. See, generally, R.
Doc. 132-1.
17 R. Doc. 186-1 at pp. 2 & 3 (citing ClaimSolution Inc. v. The Best Claims Solutions Inc., Civ. A. No.
23-02379-PHX-MTL, 2025 WL 1556971, at *1 (D. AZ. June 2, 2025) (Liburdi, J.)).
18 R. Doc. 190 at pp. 3–4.
19 Id. at p. 4 (quoting Aguillard v. Louisiana College, Civ. A. No. 1:17-CV-01671, 2019 WL 13421322,
at *1 (W.D. La. Sept. 24, 2019) (Doughty, J.)).
20 R. Doc. 190 at p. 4.
21 Id. at pp. 4–5. See Id. at pp. 2–3.
22 Id. at p. 5.
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Defendants further assert that Plaintiff hired Clark to provide an expert report
concerning her Motion for Partial Summary Judgment, that his report confirms that
he was retained for that purpose, and that Plaintiff offers no explanation for why his
report could not have been submitted in connection with the Motion for Partial
Summary Judgment.23 Defendants also assert that the two orders issued by other
courts are irrelevant to the instant litigation, apply the wrong substantive law, and
that Plaintiff fails to explain why her new argument that Martian Sales is the
manufacturer of O.P.M.S. kratom under Louisiana law was not previously raised.24
Defendants argue that Plaintiff is asking the Court to reopen the briefing and
evidentiary record on Plaintiff’s Motion for Partial Summary Judgment for
consideration of matters that could, and should, have been previously raised.25
II. LAW AND ANALYSIS
Plaintiff seeks leave to supplement the argument and evidence supporting her
Motion for Partial Summary Judgment pursuant to Fed. R. Civ. P. 15(d), which
provides, “[o]n motion and reasonable notice, the court may, on just terms, permit a
party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented.”26 Rule 15(d)
further provides that, “[t]he court may permit supplementation even though the
original pleading is defective in stating a claim or defense. The court may order that
23 Id. at p. 5.
24 Id. at pp. 5–6.
25 Id. at p. 6.
26 R. Doc. 186-1 at pp. 1–2; Fed. R. Civ. P. 15(d).
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the opposing party plead to the supplemental pleading within a specified time.”27 The
Court agrees with Defendants that Rule 15(d) is not applicable in this instance, as
Plaintiff seeks to supplement her pending Motion for Partial Summary Judgment,
and a motion is not a “pleading,” as that term is defined in Fed. R. Civ. P. 7(a).28 The
Court notes that Plaintiff did not file a reply brief to address this point. Further,
Plaintiff failed to cite any legal authority from this Circuit to support her request to
supplement her Motion for Partial Summary Judgment pursuant to Rule 15(d).29
While the Fifth Circuit has made clear that district courts have discretion in
determining whether to grant leave to supplement argument and evidence,30 it is
unclear what standard should apply in exercising that discretion. At least one court
from within this Circuit has suggested that, “a court may deny a motion for leave to
supplement summary judgment evidence if, among other things, it concludes that the
movant’s explanation of its tardiness is unpersuasive or if the movant lacked
diligence in presenting its pleading.”31 The Court is also mindful of the good cause
analysis applicable when determining whether a Scheduling Order deadline may be
modified under Fed. R. Civ. P. 16(b)(4), which requires the Court to consider: (1) the
movant’s explanation for failing to meet the deadline; (2) the importance of the
27 Fed. R. Civ. P. 15(d) (emphasis added).
28 See Fed. R. Civ. P. 7(a); Committee Notes on Rules–2009 Amendment to Fed. R. Civ. P. 15 (“Serving
a motion attacking the pleading did not terminate the right to amend, because a motion is not a
‘pleading’ as defined in Rule 7.”).
29 See, generally, R. Doc. 186-1.
30 See Snapt Inc. v. Ellipse Communications Inc., 430 Fed.Appx. 346, 353 (5th Cir. 2011) (“We consider
the denial of Snapt’s motion for leave to supplement its summary judgment evidence for an abuse of
discretion.”).
31 Aguillard v. Louisiana College, Civ. A. No. 1:17-CV-01671, 2019 WL 13421322, at *1 (W.D. La. Sept.
24, 2019).
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requested relief; (3) the potential prejudice in granting the relief sought; and (4) the
availability of a continuance to cure such prejudice.32
Having considered all of these factors, the Court denies Plaintiff’s request to
supplement her Motion for Partial Summary Judgment with an expert report
obtained from her own expert and with a new argument regarding Martian Sales,
Inc.’s purported role as a manufacturer under Louisiana’s product liability law.
Plaintiff offers no explanation for why she did not, or could not, obtain her expert
report from Ryan Clark prior to filing her Motion for Partial Summary Judgment,
nor does Plaintiff address Defendants’ assertion that Clark was hired “specifically in
connection with Plaintiff’s Motion for Partial Summary Judgment.” 33 Plaintiff
likewise offers no explanation for why she did not previously assert that Martian
Sales, Inc. is a manufacturer under Louisiana law, and there is no indication from
the proposed pleading submitted by Plaintiff that the argument is based upon
evidence obtained after the January 27, 2025 jurisdictional discovery deadline. While
Plaintiff points to “photographs of Kratom product found in decedent’s bedroom” to
support her claim that Martian Sales, Inc. is a manufacturer, the Court notes that
identical photographs were submitted as part of an exhibit to Plaintiff’s Motion for
Partial Summary Judgment.34 The Court finds that Plaintiff was dilatory in raising
these two issues and that Defendants will be prejudiced if Plaintiff is allowed to
supplement her Motion for Partial Summary Judgment with the expert report and a
32 Fed. R. Civ. P. 16(b)(4).
33 R. Doc. 190 at p. 5 (citing R. Doc. 186-7 at p. 5).
34 Compare R. Doc. 186-3 with R. Doc. 132-44 at pp. 174–175.
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new argument based upon evidence that was in Plaintiff’s possession when she filed
the Motion.
To the extent Plaintiff seeks to supplement her Motion for Partial Summary
Judgment with the deposition testimony from Mark Reilly, the Court notes that that
deposition occurred almost eight months before Plaintiff filed her Motion for Partial
Summary Judgment on June 30, 2025.35 While there may be some explanation for
why Plaintiff now offers this deposition testimony, Plaintiff has failed to provide that
explanation. As such, this request is denied.
To the extent that Plaintiff seeks to include the more recent deposition
testimony of Eyal David Gabbay, the corporate representative for JOpen,36 the Court
exercises its discretion to allow that testimony. Defendants have not shown any
prejudice to them if Plaintiff is allowed to supplement argument and evidence in
support of her Motion for Summary Judgment with this evidence. Instead,
Defendants contend that, “[i]ndeed, the ‘new’ testimony is not new at all but is
repetitive and consistent with what has always been in the record.”37 Accepting
Defendants’ response as accurate, there is no prejudice to them to allow the
supplementation of this deposition testimony.38 Further, to the extent Plaintiff seeks
to supplement her Motion for Partial Summary Judgment with the deposition
testimony of Peyton Palaio obtained on October 9, 2025, at least one of the statements
35 R. Doc. 132.
36 The deposition was held October 16, 2025. See R. Doc. 186-6.
37 R. Doc. 190 at p. 5.
38 And to the extent that Defendants contend that rehashing the same testimony would be a waste of
time, the Court declines to find so.
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cited in Plaintiff’s proposed pleading is already addressed in Plaintiff’s Motion for
Partial Summary Judgment.39 It is unclear to the Court whether the remaining
portions of Palaio’s deposition testimony are repetitive of information obtained from
the five or six corporate depositions that were purportedly taken in the fall of 2024.40
Nonetheless, the Court finds that Defendants will not be prejudiced if Plaintiff is
allowed to supplement her Motion for Partial Summary Judgment by referencing the
recent testimony, since the testimony came directly from Defendants. As such, the
Court grants Plaintiff’s request to supplement the argument and evidence supporting
her Motion for Partial Summary Judgment with Palaio’s recent deposition testimony.
The Court also grants Plaintiff’s request to supplement her Motion for Partial
Summary with two recent orders from other courts addressing the same, or a similar,
issue that is presently before this Court. One of the orders was issued only two
months ago,41 while the other was issued on the same day that Plaintiff filed her
Motion for Partial Summary Judgment.42 Defendants will not be prejudiced by the
addition of this evidence, as several of the defendants are parties in one or both of
39 Compare R. Doc. 186-2 at p. 4 (“Nuza currently sources and supplies raw kratom for OPMS”) with
R. Doc. 132-1 at p. 20 (“JOpen is truly the hub of the OPMS network insofar as it pays for raw kratom
sourced by Nuza . . . .”).
40 See R. Doc. 190 at pp. 2–3 (On October 2, 2024, Plaintiff deposed the corporate representative of
CAG Holding. On October 28 and 29, 2024, Plaintiff deposed the corporate representative of Martian
Sales. On November 22, 2024, Plaintiff deposed the corporate representative of Johnson Foods. On
December 4, 2024, Plaintiff further deposed the corporate representatives of CAG Holdings and RMH
Holdings. On December 17, 2024, Plaintiff served second sets of requests for production and
interrogatories, to which Defendants responded on January 16, 2025. On January 22, 2025, Plaintiff
deposed the corporate representative of LP.”).
41 R. Doc. 186-8.
42 R. Doc. 186-9.
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those cases. The Court finds it appropriate for those orders to have been brought to
its attention.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Motion for Leave to
Supplement Argument and Evidence of Plaintiff’s Motion for Partial Summary
Judgment, filed by Kathleen Moller,43 is GRANTED in part and DENIED in part.
The Motion is GRANTED to the extent that Plaintiff seeks to supplement her Motion
for Partial Summary Judgment44 with testimony from the October 9, 2025 deposition
of Peyton Palaio, the October 16, 2025 corporate deposition of JOpen, and two court
orders issued in other jurisdictions. The Motion is otherwise DENIED.
IT IS FURTHER ORDERED that Plaintiff shall have until
Tuesday, February 10, 2026 to file a supplemental memorandum addressing the
additional evidence which has been allowed, which shall be limited to five pages.
IT IS FURTHER ORDERED that Defendants shall have until Thursday,
February 19, 2026 to file a response, if any, to Plaintiff’s supplemental
memorandum, which shall also be limited to five pages.
New Orleans, Louisiana, February 2, 2026.
______________________________
WENDY B. VITTER
United States District Judge
43 R. Doc. 186.
44 R. Doc. 132.
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