Opinion
Stuart M.G. Seraina, Kramon and Graham PA, Baltimore, MD, Edward Francis Ruberry, Pro Hac Vice, Ellen D. Jenkins, Ruberry Stalmack and Garvey, LLC, Chicago, IL, for Plaintiff.
Anatoly Smolkin, David G. Sommer, Paul Stephen Caiola, Gallagher Evelius & Jones LLP, John Amato, IV, Matthew A. Haven, Goodman Meagher and Enoch LLP, Baltimore, MD, for Intervenor.
MEMORANDUM OPINION AND ORDER
ROGER W. TITUS, UNITED STATES DISTRICT JUDGE
This case arises out of an insurance coverage dispute, wherein Plaintiff CX Reinsurance Company Limited ("CXRe") seeks to rescind a commercial general liability policy issued to Defendant Benjamin L. Kirson ("Kirson")— a defendant who was previously dismissed from this case with prejudice. See ECF Nos. 17, 81. Intervenor Devon S. Johnson ("Johnson"), having previously won a substantial state judgment against Kirson for injuries sustained from lead paint exposure, seeks to protect his interests by demonstrating that CXRe’s policy remains effective. See ECF No. 19. Despite the Court’s best efforts to keep the parties pacified and moving towards resolution, this case has been riddled with rancorous and contentious legal maneuvering. The Court is reminded of the old adage that "no good deed goes unpunished. " While the origin of this quotation is the subject of much dispute, counsel’s actions illustrate that the quotation’s veracity is indisputable. The limits of this Court’s patience have been sorely tested, and firm action is now required.
See William Safire, On Language; Good-Deed Dungeon, N.Y. Times Magazine (1994), https://www.nytimes.com/1994/01/09/magazine/on-language-good-deed-dungeon.html.
Johnson’s Motion for an Extension of Time.
One of the many outstanding motions before the Court is Johnson’s Motion for Modification of Briefing Schedule for Cross-Motions for Summary Judgment [ECF No. 131]— a motion that specifically requests an extension for the fourth and final summary judgment brief (Johnson’s Reply in support of his Cross-Motion). CXRe opposes this Motion. See ECF No. 133.
This Court permitted Johnson to intervene in this case on January 18, 2017, almost fifteen months ago. See ECF No. 38. Since then, Johnson has had a substantial opportunity to complete discovery. Since May 3, 2017, he has been authorized to propound discovery requests not duplicative of those propounded by Kirson. See ECF No. 59. Despite Johnson’s repeated assertions to the contrary, his frustrations regarding discovery are largely self-inflicted. See ECF No. 109 at 2 ("The reason for the dearth of information is that Johnson failed to propound any non-duplicative discovery requests to [CXRe], though authorized to do so since May 3, 2017").
See ECF No. 83 (noting that Johnson was originally permitted to propound non-duplicative discovery requests, and that he could even seek discovery originally propounded by Kirson upon his dismissal).
CXRe moved for summary judgment on October 4, 2017. See ECF No. 79. Two days later, the Court held a telephone status conference with the parties, setting a fairly relaxed briefing schedule and a motions hearing on May 1, 2018— nearly seven months in the future. See ECF No. 82. Based on a contentious discovery dispute, the Court further relaxed the briefing schedule, while keeping the May 1, 2018 hearing date. See ECF No. 91. As detailed thoroughly in CXRe’s Response, Johnson subsequently requested and was granted multiple extensions. See ECF No. 133 at 2-5 (noting that the final schedule provided Johnson more than twenty weeks to respond to CXRe’s nine-page Motion for Summary Judgment, while giving CXRe only six weeks to respond to Johnson’s forty-eight page Cross-Motion).
With the Court’s stated emphasis on not moving the long-scheduled hearing date, Johnson made the strategic legal decision to borrow time towards his Cross-Motion and against his Reply. The Court generously accommodated each of these requests, but no good deed goes unpunished . Now, based on personal issues involving the family of one of his attorneys, Johnson seeks yet another enlargement of time— this iteration involving his whittled Reply window. Although sympathetic to counsel’s troubles, the Court recognizes that Johnson’s legal team has five attorneys-of-record, each from large, competent legal practices, and each capable of compensating for the hardships of an individual team member. Johnson actively chose additional time for his substantive Cross-Motion over the Reply; he cannot have his cake and eat it too. The Court repeatedly relaxed the briefing schedule to provide ample opportunity to fully address the merits of this case. However, the Court’s patience is not limitless, and it will not permit Johnson any further extensions.
However, based on Johnson’s March 27, 2018 Objection to one of Judge Gallagher’s discovery rulings [ECF No. 126]— one week before CXRe’s opposition to the Cross-Motion was due, the Court reluctantly pushed back the motions hearing to May 10, 2018 to permit CXRe a meaningful opportunity to respond to the Objection. See ECF No. 128. The Court’s Order was clear. The additional time was reserved for briefing and reviewing the discovery Objection; it was not intended to disturb the summary judgment briefing schedule. See id.
Johnson’s Motion to Strike.
In the midst of the aforementioned scheduling dispute, Johnson’s consolidated Response to CXRe’s Motion for Summary Judgment and his Cross-Motion for Summary Judgment were due on February 23, 2018. Local Rule 105(3) limits the length of a memorandum in support of a motion to thirty-five pages. However, Johnson filed an unopposed Motion for Leave to File Excess Pages [ECF No. 119] concurrently with his noncompliant memorandum [ECF No. 121]. The Court generously granted this request, but no good deed goes unpunished. In addition to these two filings, Johnson also filed a Motion to Strike [ECF No. 120], which was nothing more than a challenge to the legal sufficiency of one of the arguments made by CXRe in its summary judgment motion. Considering that this type of challenge should reside in summary judgment papers, it is clear that Johnson was using a multimotion tactic to circumvent the already-increased page limit. Although this alone is a sufficient basis for denying Johnson’s Motion, the Motion to Strike itself is also improper.
Johnson requests the Court "strike arguments made by [CXRe] in its Motion for Summary Judgment." ECF No. 120 at 1. However, Motions to Strike are governed by Rule 12(f), which states that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f) (emphasis added). Rule 7(a) defines a pleadings as "(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer." Fed.R.Civ.P. 7(a). A motion for summary judgment is not a pleading and therefore is not susceptible to a motion to strike. Even if this were not the case, Rule 12(f) does not apply because the information Johnson seeks to strike is not redundant, immaterial, impertinent, or scandalous. Accordingly, the Court will not permit Johnson to circumvent page restrictions with an extraneous and improper motion to strike.
See, e.g., Bond v. ATSI/Jacksonville Job Corps Ctr., 811 F.Supp.2d 417, 421 (D.D.C. 2011).
Johnson’s Emergency Motion to Suspend Briefing.
The Court takes issue with Johnson’s repeated use of the word "emergency." See ECF Nos. 107, 134. An emergency is a "sudden and serious event or an unforeseen change in circumstances that calls for immediate action to avert, control, or remedy harm." Emergency, Black’s Law Dictionary (10th ed. 2014). However, what Johnson actually alleges in his most recent Emergency Motion is a discovery complaint and its impact on an impending deadline. This is not a death-penalty criminal matter, and neither party is in any imminent danger of irreparable harm.
Although the parties have had nearly seven months since the filing of the original Motion for Summary Judgment [ECF No. 79], Johnson now seeks to suspend briefing over a discovery issue less than one month prior to the scheduled motions hearing. The Court will not belabor its position; this litigation has been fraught with long-standing scheduling conflicts and discovery disputes. Rule 56(d) governs situations when "a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition" to a motion for summary judgment. Fed R. Civ. P. 56(d) (emphasis added). In these instances, the court is permitted to "issue any [ ] appropriate order." Fed.R.Civ.P. 56(d)(3). The actual legal issue in dispute is the "alleged material misrepresentations made by Kirson in his insurance application with [CXRe]," ECF No. 94 at 2-3, and the voluminous record in this case appears to provide ample information for both parties to argue its merits.
Johnson sat on his hands in discovery, and the Court will not permit him to use his own lethargy as a basis to unnecessarily delay these proceedings any further. In the event that any additional information is developed before the May 10, 2018 hearing, Johnson may seek leave to present it or seek other relief at that time under Rule 56(d).
See again ECF No. 109 at 2 ("The reason for the dearth of information is that Johnson failed to propound any nonduplicative discovery requests to [CXRe], though authorized to do so since May 3, 2017").
Accordingly, it is, this 13th day of April, 2018, by the United States District Court for the District of Maryland,
ORDERED, that Intervenor Johnson’s Motion for Modification of Briefing Schedule for Cross-Motions for Summary Judgment [ECF No. 131] is hereby DENIED; and it is further
ORDERED, that Intervenor Johnson’s Motion to Strike [ECF No. 120] is hereby DENIED; and it is further
ORDERED, that Intervenor Johnson’s Emergency Motion to Suspend Summary Judgment Briefing [ECF No. 134] is hereby DENIED.