Courts routinely find claims abandoned when they are not pressed at trial or in post-trial briefing. See, e.g., Thermalon Indus., Ltd. v. United States, 51 Fed. Cl. 464 (Fed.Cl.2002) (plaintiff abandoned claim for consequential damages by presenting no evidence of such damages at trial and failing to mention them in post-trial briefing); Harbison v. Little, 723 F.Supp.2d 1032, 1038 (M.D.Tenn.2010) (“Although this court's decision did not explicitly address Count Seven, this was because Harbison abandoned the claim after trial. If a plaintiff fails to include arguments regarding a claim in a post-trial brief, the court is justified in finding that the plaintiff has abandoned that claim”); United States v. Livecchi, 605 F.Supp.2d 437 (W.D.N.Y.2009) (finding a counterclaim abandoned where it was not discussed in post-trial brief); In re Henderson, 134 B.R. 147 (Bankr.E.D.Pa.1991).
Courts routinely find claims abandoned when they are not pressed at trial or in post-trial briefing. See, e.g., Thermalon Indus., Ltd. v. United States, 51 Fed. Cl. 464 (Fed. Cl. 2002) (plaintiff abandoned claim for consequential damages by presenting no evidence of such damages at trial and failing to mention them in post-trial briefing); Harbison v. Little, 723 F.Supp.2d 1032, 1038 (M.D. Tenn. 2010) ("Although this court's decision did not explicitly address Count Seven, this was because Harbison abandoned the claim after trial. If a plaintiff fails to include arguments regarding a claim in a post-trial brief, the court is justified in finding that the plaintiff has abandoned that claim"); United States v. Livecchi, 605 F.Supp.2d 437 (W.D.N.Y. 2009) (finding a counterclaim abandoned where it was not discussed in post-trial brief); In re Henderson, 134 B.R. 147 (Bankr.
. A supplemental pleading “is futile if it merely restates the same facts as the original complaint in different terms or reasserts a claim on which the court previously ruled.” Harbison v. Little, 723 F.Supp.2d 1032, 1036 (M.D. Tenn. 2010) (finding the same standard for futility applies to a Rule 15(d) motion to supplement as a Rule 15(a) motion to amend) (quotation and citation omitted).
Nor did Plaintiff present any argument regarding his takings claim in any of the post-trial filings. See, Brown v. VHS of Michigan, Inc., 545 F. App'x 368, 372 (6th Cir. 2013) (collecting cases) ("This Court's jurisprudence on abandonment of claims is clear: a plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment."); Conner v. Hardee's Food Sys. Inc., 65 F. App'x 19, 24-25 (6th Cir. 2003) ("Because Plaintiffs failed to brief the issue before the district court . . . Plaintiffs abandoned their implied-in- law contractual claim"); Harbison v. Little, 723 F. Supp. 2d 1032, 1038 (M.D. Tenn. 2010) ("If a plaintiff fails to include arguments regarding a claim in a post-trial brief, the court is justified in finding that the plaintiff has abandoned that claim."). 16.
DI 1851 (Lap Reps.' Post-trial Mem. of Law), at 25.E.g., Harbison v. Little, 723 F.Supp.2d 1032, 1038 (M.D.Tenn.2010) (collecting cases); United States v. Livecchi, 605 F.Supp.2d 437, 451 (W.D.N.Y.2009)aff'd,711 F.3d 345 (2d Cir.2013); U.S. Surgical Corp. v. Hosp. Products Int'l Pty. Ltd., 701 F.Supp. 314 (D.Conn.1988) (“Insofar as any claim or defense urged by the defendant is founded upon a particular prior art reference to which sufficient reference is not made in the post-trial brief, such claim or defense is deemed abandoned.”); see also K & N Eng'g, Inc. v. Spectre Performance, EDCV 09–01900–VAP, 2011 WL 6133258, at *10 (C.D.Cal. Dec. 8, 2011).
The Court therefore concludes that plaintiffs have abandoned these theories and the Court will not consider or address these theories in this opinion. See Harbison v. Little, 723 F. Supp. 2d 1032, 1038 (M.D. Tenn. 2010) (declining to address a claim and noting that if "a plaintiff fails to include arguments regarding a claim in a post-trial brief, the court is justified in finding that the plaintiff has abandoned that claim"); Coston v. Petro, 398 F. Supp. 2d 878, 880-81 (S.D. Ohio 2005) ("[I]n their post-trial brief, Plaintiffs did not submit proposed findings of fact and conclusions of law for the claims asserted [various counts] of the complaint. Accordingly, the Court concludes that Plaintiffs have abandoned these claims.")
The AICs, however, failed to connect any evidence admitted at trial to the alleged state causes of action. Therefore, I conclude that the AICs have abandoned those claims West v. Gregoire , 184 Wash.App. 164, 336 P.3d 110, 113 (2014) ("When a party asserts a claim in pleadings but at trial does not ‘press’ the claim in any way or present evidence to support it, the party abandons that claim."); Harbison v. Little , 723 F. Supp. 2d 1032, 1038 (M.D. Tenn. 2010) ("If a plaintiff fails to include arguments regarding a claim in a post-trial brief, the court is justified in finding that the plaintiff has abandoned that claim."). III.
However, we do not agree that the time constraints created by the pending execution necessarily prevented the Chancery Court from taking proof and issuing a declaratory judgment on the issue of whether Tennessee's three-drug protocol constitutes cruel and unusual punishment because the manner in which the sodium thiopental is prepared and administered fails to produce unconsciousness or anesthesia prior to the administration of the other two drugs. Decisions involving such profoundly important and sensitive issues such as the ones involved in this case are best decided on evidence that has been presented, tested, and weighed in an adversarial hearing such as the one that was held by the United States District Court for the Middle District of Tennessee in Harbison v. Little, No. 3:06-cv-01206, 2010 WL 2736077 (M.D. Tenn. July 12, 2010). The current record in this case contains no such evidence.
On July 26, 2010, the State filed a Motion to Re-Set Execution Date for Edward Jerome Harbison. The State included as an attachment to its Motion an order of the United States District Court for the Middle District of Tennessee vacating the 2007 injunction that has barred the State from executing Mr. Harbison. See Edward Jerome Harbison v. George Little. No. 3:06-cv-01206 (M.D. Tenn. July 12, 2010). On September 3, 2010, Mr. Harbison filed a response to the State's motion in which he requests this Court either to modify his death sentence to life or to issue a certificate of commutation under Tenn. Code Ann. § 40-27-106 (2006).