ORMOND et al v. ANTHEM, INC. et al

Filing 473

ORDER denying Defts' 422 Motion to Strike or Defer Briefing (see Order). Signed by Magistrate Judge Tim A. Baker on 8/25/2011. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARY E. ORMOND, et al.,
On Behalf of Themselves and
All Others Similarly Situated,
Plaintiffs,
vs.
ANTHEM, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

1:05-cv-1908-TWP-TAB

ORDER ON DEFENDANTS’ MOTION TO STRIKE OR DEFER BRIEFING
On May 15, 2011, Defendants moved to strike [Docket No. 422] Plaintiffs’ motion for
partial summary judgment [Docket No. 416] on the grounds that the motion is “improper,
untimely, and inconsistent with the Court’s procedures for filing dispositive motions.”
Alternatively, Defendants request that this Court defer briefing until the Court has ruled on
Anthem’s pending motion for summary judgment. [Docket No. 422.] In support of Defendants’
motion to strike or defer, Defendants contend that Plaintiffs have moved on issues identical to
those in Anthem’s motion for summary judgment, and Plaintiffs filed their partial motion for
summary judgment after expressly telling Anthem that they had no intention of doing so.
[Docket No. 423 at 1–2.] For the reasons below, Defendants have not provided a sufficient
basis for striking Plaintiffs’ motion or deferring briefing.
Federal Rule of Civil Procedure 56(b) provides that “[u]nless a different time is set by
local rule or the court orders otherwise, a party may file a motion for summary judgment at any

1

time until 30 days after the close of all discovery.” Absent an untimely motion for summary
judgment, motions to strike or defer briefing are disfavored. Crowder v. Foster Wheeler, LLC,
265 F.R.D. 368, 370 (S.D. Ind. 2009).
Despite contending that Plaintiffs’ motion is improper, untimely, and inconsistent with
Court rules, Defendants fail to identify any authority or Court rule that does not permit Plaintiffs
to file a motion for partial summary judgment. Moreover, Defendants do not contend that
Plaintiffs’ motion is inconsistent with the Case Management Plan, and Plaintiffs’ response brief
extensively sets forth how Plaintiffs’ motion falls within the parameters of the CMP. [Docket
No. 428 at 1–5.] Even if Plaintiffs represented that they would not file a cross motion for
summary judgment, that is not a sufficient basis for striking Plaintiffs’ motion. A parties’
litigation position is continuously changing, especially as discovery proceeds, which may alter a
litigants former position or strategy. In fact, Plaintiffs explain that while they “did not envision
filing any cross-motions for summary judgment in December 2010, they never waived their right
. . . to seek such relief.” [Id. at 5.] Accordingly, there is not a sufficient basis to strike Plaintiffs’
partial motion for summary judgment.
Additionally, this Court declines to defer briefing. Motions to strike are disfavored
because they only serve to delay, and deferring briefing in this case would also serve to delay.
See Crowder, 265 F.R.D. at 370. If Plaintiffs’ motion raises issues identical to those in
Anthem’s motion for summary judgment, then the parties will have already briefed those issues
and reduced efforts will be necessary to respond to Plaintiffs’ motion. Should additional briefing
be necessary to respond to Plaintiffs’ motion, then the issues are not as identical as Defendants
would have this Court believe.

2

Defendants’ motion to strike Plaintiffs’ motion for partial summary judgment, or in the
alternative, to defer briefing pending a decision on Anthem’s dispositive motion [Docket No.
422] is denied.
Dated: 08/25/2011
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

3

Copies to:
Matthew Thomas Albaugh
BAKER & DANIELS - Indianapolis
[e-mail]
Dennis Paul Barron
[e-mail]
Michael F. Becker
THE BECKER LAW FIRM CO., L.P.A.
[e-mail]
Peter R. Bisio
HOGAN LOVELLS US LLP
[e-mail]
Todd S Collins
BERGER & MONTAGUE, P.C.
[e-mail]
T. David Copley
KELLER ROHRBACK, L.L.P.
[e-mail]
Edward O'Donnell DeLaney
DELANEY & DELANEY LLC
[e-mail]
Kathleen Ann DeLaney
DELANEY & DELANEY LLC
[e-mail]
Thomas M. Fisher
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Craig A. Hoover
HOGAN LOVELLS US LLP
[e-mail]
Peter R. Kahana
BERGER & MONTAGUE, P.C.
[e-mail]
4

Kevin M. Kimmerling
BAKER & DANIELS - Indianapolis
[e-mail]
Cari C. Laufenberg
KELLER ROHRBACK L.L.P.
[e-mail]
Adam K. Levin
HOGAN LOVELLS US LLP
[e-mail]
Neil F Mara
BERGER & MONTAGUE, P.C.
[e-mail]
H. Laddie Montague Jr
BERGER & MONTAGUE P.C.
[e-mail]
Anne Kramer Ricchiuto
BAKER & DANIELS - Indianapolis
[e-mail]
Lynn L. Sarko
KELLER ROHRBACK, L.L.P.
[e-mail]
Christopher G. Scanlon
BAKER & DANIELS - Indianapolis
[e-mail]
Paul A. Wolfla
BAKER & DANIELS - Indianapolis
[e-mail]
Eric Hyman Zagrans
[e-mail]

5