Case No. 2:06-cv-831.
April 14, 2010
In an Order dated January 20, 2009 ("January 2009 Order"), this Court granted partial summary judgment to Plaintiff Abercrombie Fitch Co. and ordered Defendant Federal Insurance Company to pay certain of Plaintiff's reasonable litigation defense costs. (Doc. 129.) Defendant appealed the January 2009 Order, which was affirmed by a panel of the Sixth Circuit on March 11, 2010. (Docs. 130, 137.) On March 25, 2010, Defendant filed a petition with the Court of Appeals requesting an en banc hearing. The Court of Appeals has not issued a mandate and will not do so while the petition is pending.
On April 13, 2010, Plaintiff filed a motion, accompanied by voluminous exhibits, seeking an order holding Defendant in contempt for allegedly failing to pay Plaintiff's defense costs as required by the January 2009 Order. (Docs. 139, 140.) On the same day, Plaintiff filed a motion for an expedited hearing on the contempt motion. (Doc. 141.)
In its motion for an expedited hearing, Plaintiff requests the Court to exercise its discretion under Civil Rule 6(c). That rule provides that, "[i]n [g]eneral," "[a] written motion and notice of the hearing must be served at least 14 days before the time specified for the hearing," with certain exceptions including "when a court order — which a party may, for good cause, apply for ex parte — sets a different time." Fed.R.Civ.P. 6(c)(1). Plaintiff asserts that it has "good cause" because Defendant allegedly "failed to pay defense costs that it was required to pay for over three years in contravention of the . . . January 2009 Order, which was entered over a year ago," and "continued in its refusal to review defense bills" or pay costs "for nearly five months after" the January 2009 Order.
In a phone conference on the record on April 14, 2010, Plaintiff indicated that it intends to support its contempt motion with the testimony of an expert. Defendant responded that it would also present expert testimony, and the parties agreed that they should depose the expert witnesses prior to a hearing.
Considering the fact that the Court of Appeals has not yet issued a mandate, the fact-intensive nature of Plaintiff's contempt motion, and the time necessary to identify and depose expert witnesses and brief the contempt motion, the Court finds that the exigency of this matter does not justify Plaintiff's request for a hearing only one week after the filing of its contempt motion. The Court therefore DENIES Plaintiff's motion for an expedited hearing. (Doc. 141.) The Court further ORDERS that the parties shall adhere to the following schedule in this matter. Plaintiff shall identify its expert witness on or before April 16, 2010, and Defendant shall identify its expert witness on or before April 30, 2010. Defendant shall file its response in opposition to Plaintiff's contempt motion on or before May 14, 2010. Defendant shall depose Plaintiff's expert witness on or before May 18, 2010, and Plaintiff shall depose Defendant's expert witness on or before May 28, 2010, but no earlier than ten days following the deposition of Plaintiff's expert witness. If the Court of Appeals has then issued its mandate, the Court will set this matter for a hearing after the expert depositions have been completed.