United States District Court, S.D. Ohio, Western Division
ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT ON
THE PLEADINGS (Doc. 83) AND REOPENING DISCOVERY FOR A PERIOD
OF SIXTY DAYS
TIMOTHY S. BLACK UNITED STATES DISTRICT JUDGE.
civil action is before the Court on the following nine
pending motions: (1) Defendant's motion for summary
judgment (Doc. 51), (2) Plaintiff's partial motion to
deny, or alternatively, extend time to respond to
Defendant's motion for summary judgment (Doc. 63), (3)
Plaintiff's motion to strike Defendant's motion for
summary judgment (Doc. 65), (4) Defendant's motion for
leave to file sur-reply (Doc. 81), (5) Defendant's motion
for judgment on the pleadings (Doc. 83), (6) Plaintiff's
motion for sanctions (Doc. 84), (7) Defendant's motion to
strike supplemental expert report of Richard Graman (Doc.
100), (8) Defendant's motion for sanctions (Doc. 104),
and (9) Defendant's motion for leave to reopen discovery
(Doc. 106). Each motion has been fully briefed and is ripe
Winter Enterprises, LLC (“Winter”) owns and
operates a business in Hamilton County, Ohio that includes a
roller rink and related goods and services (“the
Property”). (Doc. 22 ¶ 2). Winter purchased a
commercial insurance policy from Defendant West Bend Mutual
Insurance Co. (“West Bend”) insuring the Property
from covered losses in exchange for premium payments
(“the Policy”). (Id. ¶ 11). A storm
consisting of heavy rain and strong wind caused damage to the
Property on or around August 28, 2016, including a partial
collapse of the roof and the collapse of an exterior wall,
resulting in significant water infiltration. (Id.
¶¶ 12-15). As a result of the damage, Plaintiff
asserts losses exceeding $1, 215, 000, which it claims are
covered by the Policy. (Id. ¶¶ 16-17).
made a claim of coverage to the Defendant, and, in response,
Defendant authorized only a partial repair of the roof and
did not authorize any repairs related to collapsed wall.
(Id. ¶¶ 18-20, 44). Plaintiff's second
amended complaint alleges the “partial repair is
ineffective, diminishes the value of the building, impacts
the integrity of the roof and does not fulfill
Defendant's obligations under the Policies.”
(Id. ¶ 21). Based on these factual allegations,
Plaintiff asserts the following three counts: (1) breach of
contract, (2) declaratory judgment, and (3) bad faith.
(Id. ¶¶ 26-47). Defendant has asserted a
counterclaim seeking a declaratory judgment that (1) by
failing to cooperate in the investigation of the claims,
Plaintiff breached the terms and conditions of the Policy,
disentitling Plaintiff to any coverage under the policy, and
(2) Defendant has no duty to cover claims related to the
collapsed wall. (Doc. 27 at 18).
November 19, 2018, Defendant West Bend filed a motion for
summary judgment arguing that it did not breach its insurance
contract with Winter or engage in bad faith when handling
Plaintiff's insurance claim. (Doc. 51). In response,
Plaintiff filed two motions: (1) a partial motion to deny, or
alternatively extend time to respond to Defendant's
motion for summary judgment, requesting the Court to defer
ruling on Defendant's motion for summary judgment until
discovery on the bad faith claim is completed (Doc. 63), and
(2) a motion to strike Defendant's motion for summary
judgment (Doc. 65).
the Court adjudicated Defendant's motion for summary
judgment and Plaintiff's subsequent, related motions,
Defendant next filed a motion for judgment on the pleadings.
(Doc. 83). Defendant's motion for judgment on the
pleadings seeks judgment in its favor on Plaintiff's
claims related to the collapsed exterior wall. (Id.
at 1). More specifically, Defendant argues that because a
2016 report by Plaintiff's expert, Richard Graman,
attached to Plaintiff's second amended complaint, states
that surface water was a potential factor, (along with wind
and a tree collapse), contributing to the collapse of the
wall, the damage is not covered because of the Policy's
water-exclusion provision and “anti-concurrence”
clause. (Id. at 5-6).
response, Plaintiff seeks - to the extent Defendant's
motion for judgment on the pleadings is considered - to
further amend its complaint by attaching an updated report of
Richard Graman, in which Graman employs a different method to
calculate the force of the tree collapse to conclude that
“there are three factors [wind, tree collapse, and
surface water] that may have contributed to the
collapse of the [wall];” however, “but for the
impact of the tree . . . the wall would not have
collapsed.” (Doc. 94 at 2-3, 7; Doc. 94-1 at 3)
(emphasis added). Defendant proceeded to file a separate
motion to strike the supplemental expert report of Graman on
the ground that the report is an untimely rebuttal expert
report. (Doc. 100).
both parties have filed motions for sanctions (Doc. 84; Doc.
104), and Defendant has filed a motion for leave to reopen
discovery. (Doc. 106).
DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS
the Court can address the merits of Defendant's motion
for judgment on the pleadings, the Court must first determine
whether Defendant has demonstrated good cause to excuse its
untimely filing of the motion. The initial calendar order
entered in this case set a deadline of May 31, 2018 for
motions directed to the pleadings and a dispositive motions
deadline of October 31, 2018. (Doc. 25). On October 1, 2018,
at the parties' joint request, the Court extended the
dispositive motions deadline to November 15, 2018. (Doc. 37).
The amended calendar order did not extend the already-expired
deadline for motions directed at the pleadings. Defendant
timely filed a motion for summary judgment by the dispositive
motions deadline, then proceeded to file the instant motion
for judgment on the pleadings on January 21, 2019 - over
seven months after the deadline for motions directed to the
pleadings and over two months after the deadline for
dispositive motions. (Doc. 83).
Rule of Civil Procedure 12(c) provides that a party may file
a motion for judgment on the pleadings “[a]fter the
pleadings are closed-but early enough not to delay
trial.” Moreover, once a scheduling order deadline
passes, a party must demonstrate good cause under Federal
Rule of Civil Procedure Rule 16(b) for failure to adhere to
the deadline. See, e.g., Stillwagon v. City of
Del., 175 F.Supp.3d 874, 892 (S.D. Ohio 2016) (finding
motion for judgment on the pleadings timely because the
motion would not delay trial and was filed
“considerably in advance” of the dispositive
motions deadline); Christian v. Mich. Dep't of
Corr., No. 13-13416, 2014 U.S. Dist. LEXIS 89959, at
*2-3 (E.D. Mich. July 2, 2014); Birge v. Dollar Gen.
Corp., No. 4-2531, 2006 WL 133480, at *1 (W.D. Tenn.
Jan. 12, 2006); cf. Leary v. Daeschner, 349 F.3d
888, 909 (6th Cir. 2003) (applying Rule 16(b)'s good
cause standard to an untimely motion for leave to amend
despite otherwise wide latitude for amendments under Rule
motion fails under both standards, as the motion has delayed
the case, and Defendant has not demonstrated good cause for
its failure to adhere to the case calendar.
asserted in its reply brief that the motion for judgment on
the pleadings filed on January 21, 2019 would not delay
trial, scheduled for April 8, 2019. Time has proven that to
be wishful thinking. On February 26, 2019, the Court vacated
the trial date, in light of the parties' scheduled
settlement conference and the litany of pending motions,
including defendant's motion for summary judgment and
motion for judgment on the pleadings. The trial date has not
yet been rescheduled. Filing a dispositive motion aimed at a
substantial portion of Plaintiff's damages approximately
two months away from trial, after having already filed motion
for summary judgment, has certainly contributed to the delay
in this case.
Bend has also failed to demonstrate “good cause”
for its failure to comply with the calendar order. “The
primary measure of Rule 16's ‘good cause'
standard is the moving party's diligence in attempting to
meet the case management order's requirements.”
Inge v. Rock Fin. Corp. 281 F.3d 613 (6th Cir.
2002). Courts also consider possible prejudice to the
opposing party. Id. Here, despite acknowledging the
applicability of Rule 16(b), Defendant offers no
explanation whatsoever for filing its motion for
judgment on the pleadings seven months after the deadline for
motions directed at the pleadings and two months after the
deadline for dispositive motions. Nor does Defendant
acknowledge having already filed a motion for summary
judgment, in which Defendant could have seemingly raised its
argument. In addition, permitting Defendant to seek
a ruling on a substantial portion of Plaintiff's claims
after the close of discovery and submission of expert
reports, based solely on the second amended complaint and the
attached 2016 report of Richard Graman, which has since been
supplanted by a 2017 expert report, would prejudice the
Plaintiff. Thus, because Defendant has not so much as alleged
diligence in attempting to comply with the calendar order,
and because considering the motion at this stage would
prejudice Winter, the Court finds that Defendant has failed
to demonstrate good cause for its belated motion for judgment
on the pleadings.
than attempt to show diligence, Defendant argues the Court
should consider its untimely motion for the sake of
efficiency, as the motion presents a purely legal issue that
will have to be resolved before or in the course of trial.
(Doc. 99 at 3-4) (citing Eischeid v. Dover Const.,
Inc., 217 F.R.D. 448, 455 (N.D. Iowa 2003)). However,
the Court does not find that considerations of efficiency
warrant excusing West Bend from the dictates of Rule 16.
Doing so would undermine the purpose of the scheduling order,
exemplified by the haphazard progress of this case.
addition, Defendant presents its water exclusion argument as
a cut-and-dry inquiry, arguing that because Plaintiff's
2016 expert report states water contributed to the wall's
collapse, the damage is not covered. However, the Court is
not convinced that the precedent cited by Defendant, which
involves multiple, undisputed causes of property damage, is
conclusive here (at least as to the damage to the wall
itself) where three forces - wind, water, and a tree collapse
- simultaneously acted on the wall, with the parties'
experts disagreeing on the water's contribution. The
parties have failed to fully brief the causation issue, and
the Court is reluctant to make a ruling at this late stage in
the litigation based solely on the Plaintiff's
expert's 2016 report. Therefore, Defendant's motion
for judgment on the pleadings is dismissed as untimely.
CROSS MOTIONS FOR SANCTIONS AND DEFENDANT'S MOTION TO
pending before the Court are the parties' cross-motions
for sanctions (Docs. 84, 104) and the parties' responsive
briefing (Docs. 93, 101, 109, 114). In addition, Defendant
filed a related motion to reopen discovery (Doc. 106), which
has been fully briefed (Docs. 110, 115).
sides come before the Court with unclean hands; and thus, the
Court declines to grant the severe sanctions sought by the
Plaintiff. To the extent both sides engaged in misconduct in
the course of discovery, an extension of the period of
discovery will sufficiently alleviate prejudice to either
party and get the case back on track for a timely resolution
on the merits.
seeks sanctions pursuant to Federal Rules of Civil Procedure
26(g) and 37, as well as the Court's inherent authority
based on alleged misconduct relating to two categories of
discovery: (1) written discovery and (2) depositions. (Doc.
84). Plaintiff argues that West Bend did not fully comply
with Plaintiff's discovery requests, withholding
relevant, non-privileged information - exemplified by a
belated disclosure of its “Claim Activity Log”
and 263 pages of documents prior to a December 2018 discovery
call with the Court. (Id. at 13-16). Plaintiff