Sunquest Properties Inc. et al v. Nationwide Property And Casualty Insurance Company et al

MOTION for Leave to File Supplemental Reply in Support of Motion for Sanctions

S.D. Miss.January 26, 2010

3091436.1/09446.31688 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION SUNQUEST PROPERTIES, INC. and CARRIAGE HOUSE APARTMENTS PARTNERSHIP, PLAINTIFFS v. Civil Action No. 1:08-CV-687-LTS-RHW NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY and JOHN DOES 1-5, DEFENDANTS MOTION FOR LEAVE TO SUPPLEMENT REPLY IN SUPPORT OF MOTION FOR SANCTIONS COMES NOW Defendant Nationwide Property and Casualty Insurance Company (“Nationwide”) and files this Motion for Leave to Supplement Reply in Support of Motion for Sanctions. In support thereof, Nationwide states as follows: 1. On December 10, 2009, Nationwide filed a Motion for Sanctions. On December 22, 2009, Nationwide filed a reply memorandum in support of its Motion. 2. Nationwide continues to believe that sanctions, up to and including dismissal of this action, are appropriate in light of Plaintiffs’ discovery abuses and related misconduct. Nationwide respectfully moves for leave to supplement its Reply in Support of Motion for Sanctions, however, to include as Exhibits the recent depositions of Mr. Lewis O’Leary and Mr. Ralph Brockman in the matter of Sunquest Properties, Inc. & Compass Pointe Apartments Partnership v. Nationwide Prop. and Cas. Ins. Co., 1:08-CV-692-LTS-RHW. 3. In their Response to Nationwide’s Motion for Sanctions, Plaintiffs represented to the Court that Mr. O’Leary has always been paid on an hourly basis, that he has no financial stake in the outcome of the matter, that Mr. Brockman did not misrepresent Mr. O’Leary’s fee arrangement in his prior deposition testimony, and that an extension of the discovery deadline to Case 1:08-cv-00687-LTS-RHW Document 241 Filed 01/26/2010 Page 1 of 4 3091436.1/09446.31688 2 permit Mr. O’Leary to create new wind damage estimates would avoid prejudice to Nationwide and delay of the trial. 4. The above-noted deposition transcripts directly contradict or substantially undermine each of the above representations. 5. Nationwide therefore respectfully submits that its Motion for Leave to Supplement is made in good faith and not for purposes of delay or harassment, but is made in order to provide the Court with all available facts which may be relevant in the Court’s decision on Nationwide’s Motion for Sanctions. 6. Nationwide further states that the granting of this Motion will not prejudice the Plaintiffs, as the proposed Supplement does not raise any new arguments that have not already been briefed. WHEREFORE, PREMISES CONSIDERED, Nationwide respectfully prays that its Motion for Leave to Supplement be granted, and that the Court consider the proposed Supplement to Nationwide’s Reply in Support of Motion for Sanctions, attached hereto as Exhibit “A.” THIS, the 26th day of January, 2010. Respectfully submitted, NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY, DEFENDANT By Its Attorneys WATKINS LUDLAM WINTER & STENNIS, P.A. By: /s/ Laura L. Hill LAURA L. HILL lhill@watkinsludlam.com Case 1:08-cv-00687-LTS-RHW Document 241 Filed 01/26/2010 Page 2 of 4 3091436.1/09446.31688 3 H. Mitchell Cowan (MSB No.7734) Laura Limerick Gibbes (MSB No. 8905) F. Hall Bailey (MSB No. 1688) Janet D. McMurtray (MSB No. 2774) Christopher R. Shaw (MSB No. 100393) Laura L. Hill (MSB No. 102247) WATKINS LUDLAM WINTER & STENNIS, P.A. 190 East Capitol Street, Suite 800 (39201) Post Office Box 427 Jackson, MS 39205 Telephone: (601) 949-4900 Facsimile: (601) 949-4804 Of Counsel: Daniel F. Attridge, P.C. (Bar No. 44644) Christian D.H. Schultz (Bar. No. 44747) Robert B. Gilmore (Bar No. 44997) Kate S. O’Scannlain (Bar No. 45034) Jeffrey A. Todd (Bar No. 45916) KIRKLAND & ELLIS LLP 655 15th Street, N.W., Suite 1200 Washington, DC 20005 Tel: (202) 879-5000 Fax: (202) 879-5200 Case 1:08-cv-00687-LTS-RHW Document 241 Filed 01/26/2010 Page 3 of 4 3091436.1/09446.31688 4 CERTIFICATE OF SERVICE I certify that I have this day electronically filed the foregoing using the Court’s ECF system, which sent electronic notification of such filing to: Nathan M. Gaudet Matthew K. Brown SULLIVAN, STOLIER AND RESOR, APLC 909 Poydras Street, Suite 2600 New Orleans , LA 70112 504/561-1044 Fax: 504/561-8606 ngaudet@ssrlawfirm.com mbrown@ssrlawfirm.com This the 26th day of January, 2010. By: /s/ Laura L. Hill LAURA L. HILL lhill@watkinsludlam.com Case 1:08-cv-00687-LTS-RHW Document 241 Filed 01/26/2010 Page 4 of 4