Cone et al v. National General Assurance Company

Filing 127

ORDER denying 74 Motion for Protective Order; denying 75 Motion for Discovery; denying 82 Motion to Exclude Plaintiffs' "Non-Retained" Experts; granting 122 Motion for Extension of Time to File Response/Reply. Signed by Magistrate Judge G. R. Smith on 8/22/16. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DOUGLAS CONE and
VICKI CONE,
Plaintiffs,
v.
Case No. CV415-163
NATIONAL GENERAL
ASSURANCE COMPANY; and
CAMPING TIME RV CENTERS,
d/b/a CAMPING WORLD RV SALES,
Defendants.

ORDER
Before the Court is an insurance coverage case arising from storm
damage to the roof of a motor home purchased by plaintiffs Douglas and
Vicki Cone from Camping Time RV Centers, LLC d/b/a Camping World
RV Sales (Camping Time). The Cones insured it with National General
Assurance Company (NGAC), against whom they brought this action
after it refused to pay their damage claim. Doc. 47 at 5-6. They also sue
Camping Time for, inter alia, negligence. Id. at 6.
The Court has already resolved a prior discovery dispute, doc. 39,

reported at 2015 WL 7196478, but more discovery-based motions have

since been filed, doc. 74 (Motion For Protective Order); doc. 75 (Motion
for Out of Time Discovery), followed by a Motion to Exclude Plaintiff’s
Non-Retained Expert, doc. 82, NGAC’s Motion for Summary Judgment,
doc. 85, Camping Time’s Motion for Summary Judgment, doc. 86,
Camping Time’s Motion In Limine , doc. 87, Plaintiffs’ Second Motion for
Remand, doc. 119, and Plaintiffs’ Motion To Extend Time to file a surreply brief. Doc. 122. The discovery-based and time-extension motions
(docs. 74, 75 & 82) are before the undersigned, while the rest remain
before the district judge.
The Court GRANTS plaintiffs’ time-extension motion, doc. 122, 1
but DENIES without prejudice the discovery-based motions. Docs. 74,
75 & 82. They may be renewed after the district judge reaches the
summary judgment and remand motions, which may well moot them. 2

NGAC opposes, claiming it’s untimely, doc. 125, but this Court has a liberal reply
brief policy. Waddy v. Globus Med., Inc. , 2008 WL 3861994 (S.D. Ga. Aug 18, 2008)
(the “parties may file as many reply briefs as they like under Local Rule 7.5.”) (citing
Podger v. Gulfstream Aerospace Corp. , 212 F.R.D. 609, 609 (S.D. Ga. 2003)); Brown v.
Chertoff, 2008 WL 5190638 at * 1 (S.D. Ga. Dec.10, 2008) (reminding that “[o]nce the
initial round of briefs have been filed, subsequent replies run the risk of ‘sudden
death.’ That is, the Court is free to issue its decision at any time.”). And even NGAC,
for that matter, notes that it suffers no real prejudice. Doc. 125 at 2 (“Furthermore,
the sur-reply brief is unnecessary because the issues have been fully briefed by both
parties and the Plaintiffs’ brief adds nothing new.”).
1

NGAC’s summary judgment motion, filed after the latest discovery-dispute
motions, argues that NGAC

2

2

SO ORDERED , this 22nd day of August, 2016.

UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA

is entitled to summary judgment as a matter of law that it has no duty to pay
for any damage to Plaintiff Douglas and Vicki Cone’s motorhome and/or that
[NGAC] had “good cause” to deny the Cones’ claim as a matter of law or that
the Cones have failed to provide sufficient support for their claim for
attorney’s fees. Alternatively, [NGAC] is entitled to summary judgment as a
matter of law that the Cones’ damages, if any, are limited to the condition of
their motorhome in the summer of 2014. Wherefore, [NGAC] respectfully
requests that this Court grant its motion for summary judgment.
Doc. 85 at 2. Camping Times’ summary-judgment motion also shoots for the fences.
Doc. 86 at 2 (arguing that “it is entitled to summary judgment as a matter of law that
Plaintiffs Douglas and Vicki Cone cannot meet their burden of proof on their
negligence claim. Alternatively, Camping Time is entitled to summary judgment as a
matter of law that the Cones’ damages, if any, are limited to the condition of their
motorhome in the summer of 2014.”); see also doc. 86-1 at 25 (setting forth facts to
support its conclusion that it “did not owe the Cones a duty after they retrieved it
from Camping Time on June 12, 2014.”).
Those dispositive motions obviously have not been “held back” by the disputed
discovery issues (the motions in fact were filed), and the Cones are free to invoke Fed.
R. Civ. P. 56(d) (nonmoving party can show, by affidavit or declaration, that it needs
more time to obtain affidavits or declarations or discovery essential to justify its
summary-judgment opposition). And, the remand motion, of course, would moot all
other pending motions if granted. Doc. 119 at 6 (the Cones argue that this diversityjurisdiction case was wrongly removed -- there are no diverse parties).

3