In short, because plaintiff failed to bring the affidavits to the district court's attention in connection with the cellblock claim, it had no occasion to consider them in that context. Chicago Title Ins. Corp. v. Magnuson , 487 F.3d 985, 995 (6th Cir. 2007) ("[T]he opposing party ‘has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.’ " (quoting In re Morris , 260 F.3d 654, 665 (6th Cir. 2001) )). Nor will we fault the district court for failing to do so.

Under Federal Rule of Civil Procedure 56(c), the opposing party "has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact." Chicago Title Ins. Corp. v. Magnuson , 487 F.3d 985, 995 (6th Cir. 2007) (quoting In re Morris , 260 F.3d 654, 665 (6th Cir. 2001) ). "This burden to respond is really an opportunity to assist the court in understanding the facts.

We apply a de novo standard of review when reviewing a district court's determination of the constitutionality of a punitive-damages award. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001); see also Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 999 (6th Cir. 2007). Compensatory damages "are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct."

The Sixth Circuit has interpreted the repeated conduct factor as requiring "`that the similar reprehensible conduct be committed against various different parties rather than repeated reprehensible acts within the single transaction with the plaintiff.'" Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 1000 (6th Cir. 2007) (quoting Bach v. First Union Nat'l Bank, 149 F. App'x 354, 356 (6th Cir. 2005)). Here, Fastenal argues that this factor is met because, though there was only one sale of goods, the Tri-State Defendants have "continued to reap the benefits of the goods and the information they obtained from Fastenal."

Even if the rule applies to district courts and appellate courts—a proposition far from certain, see LidoChem, Inc. v. Stoller Enters., 500 F. App'x 373, 388-91 (6th Cir. 2012) (Thapar, J., dissenting) (collecting cases)—the rule is quite clearly discretionary, and we decline to reverse the district court on this basis. See Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007) (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989)) ("A district court is not required to 'search the entire record to establish that it is bereft of a genuine issue of material fact.'"). The first piece of evidence offers little.

In assessing the reprehensibility of a defendant's conduct in cases such as this where the harm is economic and not physical, we have stated that "the primary considerations to be addressed are [the plaintiffs] financial vulnerability, whether [the defendant's] conduct was repeated, and the culpability of [the defendant's] actions." See Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 999 (6th Cir. 2007). New York Life asserts that Morgan is not financially vulnerable, noting that he earned between $500,000 and $1,000,000 during each of his five years in the Cleveland office.

For even where the jury has found an entitlement to punitive damages, the appropriate punitive damages award may still be zero. Chicago Title Ins. Corp. v. Magnuson , 487 F.3d 985, 1001 (6th Cir. 2007) (applying the State Farm factors and holding that the district court erred in upholding a jury verdict for any punitive damages following the jury's $32.4 million punitive damages and $10.8 million compensatory damages award). In making that threshold assessment, the "most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct."

The per-defendant approach divides the punitive damages assessed against a defendant by the compensatory damages assessed against that defendant, and the per-judgment approach divides the total of punitive damages assessed against the defendants by the total of compensatory damages assessed against the defendants. Compare Planned Parenthood , 422 F.3d 949 (applying per-defendant ratio calculation), Horizon Health , 520 S.W.3d 848 (same), and Chicago Title Ins. Corp. v. Magnuson , 487 F.3d 985 (6th Cir. 2007) (same) with Advocat , Inc. v. Sauer , 353 Ark. 29, 111 S.W.3d 346, 363 (2003) (dividing total of punitive awards against all companies by full amount of compensatory damages award), Bardis v. Oates , 119 Cal. App.4th 1, 21 n.8, 14 Cal.Rptr.3d 89 (2004) (same), and Cooley v. Lincoln Elec. Co. , 776 F.Supp.2d 511, 551–53 (N.D. Ohio 2011) (same). The Defendants argue for application of the per-judgment approach; Northwest argues for the per-defendant approach as applied by the trial court and the Superior Court in this case.

The mere reference to those technical drawings, inviting the court to cull through them in search of a fact question, "falls well short of 'direct[ing] the court's attention to those specific portions of the record upon which [the plaintiff sought] to rely to create a genuine issue of material fact." Bormuth v. Cty. of Jackson , 870 F.3d 494, 500 (6th Cir. 2017) (citing Chicago Title Ins. Corp. v. Magnuson , 487 F.3d 985, 995 (6th Cir. 2007) ). This Court is not charged with the responsibility of constructing the plaintiffs' arguments for them, from unannotated documents presented to the Court en masse .

Moreover, as the Defendants point out, the Supreme Court and other United States Circuit Courts of Appeal other than the Tenth Circuit have found such conduct toward third parties relevant. See Reply at 8 (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 423–24, 123 S.Ct. 1513 (rejecting the plaintiffs' evidence of State Farm's actions toward third parties, because that evidence was not “of the sort that injured them”)); Willow Inn, Inc. v. Pub. Serv. Mut. Ins. Co., 399 F.3d 224, 232 (3rd Cir.2005) (“The ‘repeated conduct’ cited in Gore involved not merely a pattern of contemptible conduct within one extended transaction ( i.e., the sale of one automobile to Dr. Gore), but rather specific instances of similar conduct by defendants in relation to other parties.”); Chicago Title Ins. Co. v. Magnuson, 487 F.3d 985, 1000 (6th Cir.2007) (holding that, “we interpreted the repeated conduct factor to require that the similar reprehensible conduct be committed against various different parties rather than repeated reprehensible acts within the single transaction with plaintiff,” (internal quotation omitted) and, “[w]hen assessing whether the defendant's behavior was sufficiently reprehensible to support an award of punitive damages, the Supreme Court has noted that consideration of the defendant's conduct against other parties across the country is instructive to the analysis”).