National Casualty Company v. National Strength and Conditioning Association

Filing 107

ORDER: (1) Denying Defendant's ex parte application and denying as moot the NSCA's motion to file documents under seal, (2) Requesting additional briefing, and (3) Continuing hearing. (EFC Nos. 49, 56, 100, 102, 103). The Court continues the hearing on the Motions for Summary Judgment to 7/02/2020 at 1:30pm. Signed by Judge Janis L. Sammartino on 6/04/2020. (jpp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

NATIONAL CASUALTY COMPANY,

Case No.: 18-CV-1292 JLS (KSC)

Plaintiff,

12
13
14

ORDER: (1) DENYING
DEFENDANT’S EX PARTE
APPLICATION AND DENYING AS
MOOT THE NSCA’S MOTION TO
FILE DOCUMENTS UNDER SEAL,
(2) REQUESTING ADDITIONAL
BRIEFING, AND (3) CONTINUING
HEARING

v.
NATIONAL STRENGTH AND
CONDITIONING ASSOCIATION,

15

Defendant.

16
17
18

NATIONAL STRENGTH AND
CONDITIONING ASSOCIATION,

(ECF Nos. 49, 56, 100, 102, 103)

Counter-Claimant,

19
20

v.

21

NATIONAL CASUALTY COMPANY,

22

Counter-Defendant.

23
24

Presently before the Court are Plaintiff/Counter-Defendant National Casualty

25

Company’s Motion for Summary Judgment (ECF No. 49) and a Motion for Partial

26

Summary Judgment filed by Defendant/Counter-Claimant National Strength and

27

Conditioning Association (“NSCA”) (ECF No. 56) (together, the “Motions for Summary

28

Judgment”), which are set to be heard on June 11, 2020, see ECF No. 100, as well as the
1
18-CV-1292 JLS (KSC)

1

NSCA’s Ex Parte Application for Leave to File Sur-Reply to Respond to Erroneous

2

Statements in NCC’s Reply in Support of Its Motion for Summary Judgment (“Ex Parte

3

App.,” ECF No. 102) and Motion for Order to Seal Its Sur-Reply in Support of Its Motion

4

for Partial Summary Judgment (“Mot. to Seal,” ECF No. 103) and NCC’s Opposition to

5

the Ex Parte Application (“Ex Parte Opp’n,” ECF No. 105). Having carefully reviewed

6

the Parties’ arguments and the law, the Court DENIES the NSCA’s Ex Parte Application,

7

DENIES AS MOOT the NSCA’s Motion to Seal, ORDERS the Parties to submit

8

additional briefing on the Motions for Summary Judgment, and CONTINUES the hearing

9

on the Motions for Summary Judgment to accommodate the additional briefing requested

10
11

by the Court.
THE NSCA’S EX PARTE APPLICATION AND MOTION TO SEAL

12

Approximately two months after NCC filed its reply in support of its Motion for

13

Summary Judgment, see Ex Parte Opp’n at 3; see also ECF No. 85, the NSCA requests

14

leave to file a sur-reply “to respond to erroneous statements made in . . . National Casualty

15

Company’s Reply.” Ex Parte App. at 1. As NCC notes, see Ex Parte Opp’n at 2, “[c]ourts

16

generally view motions for leave to file a sur-reply with disfavor,” although “permitting

17

the filing of a sur-reply is within the discretion of the district court,” but “only where a

18

valid reason for such additional briefing exists.” Whitewater W. Indus., Ltd. v. Pac. Surf

19

Designs, Inc., No. 317CV01118BENBLM, 2018 WL 3198800, at *1 (S.D. Cal. June 26,

20

2018) (quoting Johnson v. Wennes, No. 08-cv-1798, 2009 WL 1161620, at *2 (S.D. Cal.

21

April 28, 2009)) (citing Schmidt v. Shah, 696 F. Supp. 2d 44, 60 (D.D.C. 2010); Hill v.

22

England, No. CVF05869RECTAG, 2005 WL 3031136, at * 1 (E.D. Cal. Nov. 8, 2005)).

23

Here, NCC made an error concerning the pagination of the NSCA’s exhibits and

24

cited contrary testimony from its corporate designee concerning to whom NCC would defer

25

in deciding whether there exist reasonable grounds for the NSCA to appeal in the

26

underlying action. See Ex Parte App. at 2–4. To the extent they are material, the Court is

27

capable of reviewing those portions of Mr. Rogissart’s testimony cited by both the NSCA

28

and NCC; accordingly, “the Court finds that [the NSCA]’s request for leave to file a sur2
18-CV-1292 JLS (KSC)

1

reply is merely an attempt to have the last word on this issue,” which “is precisely why

2

Courts so thoroughly disfavor requests to file sur-replies.” See Whitewater W. Indus., 2018

3

WL 3198800, at *1. Accordingly, the Court DENIES the NSCA’s Ex Parte Application

4

and DENIES AS MOOT its attendant Motion to Seal.

5

REQUEST FOR ADDITIONAL BRIEFING AND CONTINUANCE

6

Although the Parties already have filed voluminous briefs regarding their pending

7

Motions for Summary Judgment, see ECF Nos. 49, 55, 56, 65, 68, 71, 82, 83, 85, 88, 95,

8

96, 98, the Court believes that further briefing on the following discrete issues would assist

9

the Court in preparing for the hearing on the Motions and, ultimately, its determination of

10

them. Specifically, the Court is interested in (1) the sufficiency of the reservation of rights

11

letter from Carolyn Kanalos of K&K Insurance to Thomas James dated May 16, 2014,

12

particularly the necessity of the insurer explicitly informing the insured that there exists a

13

conflict of interest and of the insured’s right to independent counsel; (2) whether breach of

14

the duty to defend resulting from the failure to provide independent counsel in a conflict-

15

of-interest situation gives rise to a cause of action for damages or for estoppel; (3) who, if

16

anyone, bears the burden of establishing that there would have been a more favorable

17

outcome but-for any such breach of the duty to defend resulting from the failure to provide

18

independent counsel in a conflict-of-interest situation; and (4) the preclusive effect, if any,

19

of a final judgment following appeal regarding the issue and/or terminating sanctions

20

CrossFit, Inc. v. National Strength and Conditioning Association, No. 3:14-CV-1191 JLS

21

(KSC) (S.D. Cal. filed May 12, 2014).

22

Accordingly, the Court ORDERS ADDITIONAL BRIEFING, not to exceed ten

23

(10) pages per side, to be filed on or before fourteen (14) days from the date on which this

24

Order is electronically docketed. To accommodate the additional briefing requested by the

25

///

26

///

27

///

28

///
3
18-CV-1292 JLS (KSC)

1

Court, the Court CONTINUES the hearing on the Motions for Summary Judgment to

2

July 2, 2020 at 1:30 p.m.

3

IT IS SO ORDERED.

4
5

Dated: June 4, 2020

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
18-CV-1292 JLS (KSC)