SYMONS INTERNATIONAL GROUP, INC. et al v. CONTINENTAL CASUALTY COMPANY

Filing 381

ORDER denying 362 Motion to Strike CCCs Motion to Strike Alan and Gordon Symons Motion to Amend Findings and to Enter Judgment in Their Favor. CCC shall have forty (40) days from the date of this Order to respond to the merits of Alan and Gordon Symons Motion. Signed by Judge Richard L. Young on 3/20/2012. (PG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

)
)
)
)
vs.
)
)
CONTINENTAL CASUALTY
)
COMPANY,
)
Defendant,
)
)
)
CONTINENTAL CASUALTY
)
COMPANY, and 1911 CORP.,
Counter-Plaintiffs and Third-Party )
)
Plaintiffs,
)
)
IGF INSURANCE COMPANY, et al.,
Counter-Defendants, and Third-Party )
)
Defendants.
IGF INSURANCE COMPANY, et al.
Plaintiffs,

1:01-cv-799-RLY-MJD

ORDER ON CONTINENTAL CASUALTY COMPANY’S MOTION TO STRIKE
ALAN AND GORDON SYMONS’ MOTION TO AMEND FINDINGS AND TO
ENTER JUDGMENT IN THEIR FAVOR
Continental Casualty Company (“CCC”) moves to strike Alan and Gordon
Symons’ Motion to Amend Findings and to Enter Judgment in Their Favor (“Motion to
Amend”). CCC argues that this Motion comes too late, and is brought only to further
delay these proceedings. Although this Motion was filed approximately two and-a-half
years after the court’s Findings of Fact and Conclusions of Law, to date, there has been
no final judgment. Given the unusual procedural posture of this case, Alan and Gordon

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Symons’ Motion to Amend is treated as a motion to reconsider an interlocutory order.
A district court retains the power to reconsider and modify its interlocutory orders
at any time prior to the entry of final judgment. Fisher v. Nat’l R.R. Passenger Corp.,
152 F.R.D. 145, 149 (S.D. Ind. 1993) (“[I]t is well established that a district court has the
inherent power to reconsider interlocutory orders and reopen any part of a case before
entry of final judgment.”); Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d
1462, 1469 (4th Cir. 1991) (“An interlocutory order is subject to reconsideration at any
time prior to the entry of a final judgment.”); cf. FED. R. CIV. P. 54(b) (providing that
interlocutory orders that resolve fewer than all claims “may be revised at any time before
the entry of a [final] judgment”). Whether to grant or deny such a motion is committed to
the sound discretion of the district court. Azko Coatings, Inc. v. Aigner Corp., 909
F.Supp. 1154, 1159 (N.D. Ind. 1995).
The court, in its discretion, finds CCC’s Motion to Strike should be denied for
three reasons. First, the Motion to Amend is timely filed, as odd as that may sound,
because it is filed before the entry of a final judgment. Fayetteville, 936 F.2d at 1469.
Second, motions to strike motions to reconsider are generally disfavored. See, e.g.,
Mergentime Corp. v. Washington Metro. Area Transit Auth., 166 F.3d 1257, 1263 (C.D.
Cir. 1999) (stating that a district judge does not have the discretion to refuse to grant or
deny post-trial motions); see also 121 WRIGHT, MILLER & KANE, Federal Practice and
Procedure § 2818, at 194 (2d ed. 1995) (“If the trial judge has failed to exercise
discretion at all, as when he is under the mistaken apprehension that he has no power to
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grant the relief sought, the appellate court can review that decision and can order the
judge to exercise his discretion.”). Finally, if the court made a mistake of fact or law, as
alleged by Alan and Gordon Symons, the court finds it best to correct the record prior to
the entry of final judgment.
IT IS THEREFORE ORDERED that CCC’s Motion to Strike Alan and Gordon
Symons’ Motion to Amend Findings and to Enter Judgment in Their Favor (Docket #
362) is DENIED. CCC shall have forty (40) days from the date of this Order to respond
to the merits of Alan and Gordon Symons’ Motion.

SO ORDERED this 20th day of March 2012.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
Southern District of Indiana

Electronic Copies to:
Arend J. Abel
COHEN & MALAD LLP
[e-mail]
Robert M. Baker III
[e-mail]
Michael J. Blinn
COHEN & MALAD LLP
[e-mail]
James A. Hardgrove
SIDLEY AUSTIN BROWN & WOOD LLP
[e-mail]
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Jeffrey Lynn McKean
WOODEN & MCLAUGHLIN LLP
[e-mail]
Robert L. McLaughlin
WOODEN & MCLAUGHLIN LLP
[e-mail]
Patricia M. Petrowski
SIDLEY AUSTIN LLP
[e-mail]
Michael Rabinowitch
WOODEN & MCLAUGHLIN LLP
[e-mail]
Ellen S. Robbins
SIDLEY AUSTIN LLP
[e-mail]
Kevin M. Fitzgerald
NIXON PEADBODY LLP
[e-mail]
Michael H. Michmerhuizen
BARRETT & McNAGNY LLP
[e-mail]
Mary F. Schmid
STEWART & IRWIN, P.C.
[e-mail]
Edward Paul Grimmer
AUSTGEN KULPER & ASSOCIATES, P.C.
[e-mail]
Thomas J. Dillon
McFADDEN & DILLON, P.C.
[e-mail]
W. Daniel Deane
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NIXON PEABODY LLP
[e-mail]
Michael B. Knight
COLLIGNON & DIETRICK, P.C.
[e-mail]
Patrick J. Dietrick
COLLIGNON & DIETRICK
[e-mail]
Copy to:
Dale R. Crider
CNA Center
222 S. Wabash Ave., 43rd Fl.
Chicago, IL 60604

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