ELI LILLY AND COMPANY et al v. ARCH INSURANCE COMPANY et al

Filing 1260

ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DENYING PLAINTIFFS' MOTION FOR RELIEF - For the reasons stated above, the Court OVERRULES the Plaintiffs' Objections (Filing No. #1248 ), ADOPTS the Magistrate Judge's Report and Recommendation (Filing No. #1243 ), and DENIES the Plaintiffs' Motion for Relief Pursuant to Rule 56(d) (Filing No. #1230 ). The Plaintiffs are ordered to file their response, if any, to the pending summary judgment motions (Filing No. #1228 and Filing No. #1229 ) within thirty (30) days of the date of this Order. The Defendants may file a reply within fourteen (14) days after the Plaintiffs' response is served. (See Order.) Signed by Judge Tanya Walton Pratt on 5/28/2020.(NAD)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ELI LILLY AND COMPANY, and
ELI LILLY DO BRASIL LTDA,
Plaintiffs,
v.
ARCH INSURANCE COMPANY,
ARCH SPECIALTY INSURANCE COMPANY,
COMMERCIAL UNION INSURANCE
COMPANY, ENDURANCE AMERICAN
SPECIALTY INSURANCE COMPANY,
LIBERTY INSURANCE UNDERWRITERS
INC., RSUI INDEMNITY COMPANY,
WESTCHESTER SURPLUS LINES
INSURANCE CO., and XL INSURANCE
AMERICA, INC.,
Defendants.

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Case No. 1:13-cv-01770-TWP-TAB

ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION AND DENYING PLAINTIFFS' MOTION FOR RELIEF
This matter is before the Court on a Motion for Relief Pursuant to Rule 56(d) and
Objections to Report and Recommendation on the Rule 56(d) Motion (Filing No. 1230; Filing No.
1248) filed by Plaintiffs Eli Lilly and Company ("Lilly") and Eli Lilly do Brasil, Ltda. ("Lilly
Brasil") (collectively, "Plaintiffs").

The Plaintiffs brought this action asserting claims for

insurance coverage for underlying lawsuits regarding liability for environmental and other claims
against Lilly Brasil. The Plaintiffs assert other related claims, and seek declaratory relief and
damages against some of Lilly's insurers: Arch Insurance Company and Arch Specialty Insurance
Company (collectively, "Arch"), Endurance American Specialty Insurance Company
("Endurance"), Liberty Insurance Underwriters Inc. ("LIU"), RSUI Indemnity Company

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("RSUI"), Westchester Surplus Lines Insurance Co. ("Westchester"), and XL Insurance America
Inc. ("XL"). 1
On June 13, 2019, Arch and the Upper Excess Carriers filed separate motions for summary
judgment on the Plaintiffs' claims. On June 14, 2019, the Plaintiffs filed their Motion for Relief
Pursuant to Rule 56(d), requesting additional discovery concerning the Defendants' summary
judgment motions. The Rule 56(d) Motion was referred to the Magistrate Judge for a report and
recommendation. Magistrate Judge Baker issued his Report and Recommendation, to which the
Plaintiffs filed Objections. For reasons stated below, the Court finds no error of law or fact in the
Report and Recommendation and therefore overrules the Plaintiffs' Objections (Filing No. 1248),
adopts the Magistrate Judge's Report and Recommendation (Filing No. 1243), and denies the
Plaintiffs' Motion for Relief Pursuant to Rule 56(d) (Filing No. 1230).
I. LEGAL STANDARD
A district court may assign dispositive motions to a magistrate judge, in which case the
magistrate judge may submit to the district judge only a report and recommended disposition,
including any proposed findings of fact. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760
(7th Cir. 2009); see also 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). "The magistrate judge's
recommendation on a dispositive matter is not a final order, and the district judge makes the
ultimate decision to adopt, reject, or modify it." Schur, 577 F.3d at 760; see also 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). After a magistrate judge makes a report and recommendation,
either party may object within fourteen days. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). "A
judge of the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).

1

Defendants Endurance, LIU, RSUI, Westchester, and XL will be collectively referred to as "Upper Excess Carriers."

2

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Further, a judge "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." Id. A district court also may assign nondispositive matters to a magistrate judge under Rule 72(a).
II.

DISCUSSION

The history and facts of this matter are sufficiently set forth in the Magistrate Judge's
Report and Recommendation, which the Court adopts, so only a brief synopsis of the background
is stated in this Order. In addition, the legal analysis and conclusions of the Magistrate Judge are
set forth in that ruling (Filing No. 1243), and need not be repeated.
On June 18, 2018, the Court issued an Order providing some relief to Arch and codefendant Commercial Union Insurance Company (now known as Lamorak Insurance Company
("Lamorak")) after Arch and Lamorak filed summary judgment motions (Filing No. 1118). The
Court's Order granted summary judgment to Arch on the Plaintiffs' reformation claims because the
claims are barred by the laches doctrine, and it granted summary judgment to Lamorak on all
claims asserted against it. The Court also determined that Lilly Brasil does not have standing to
bring claims against Arch. Id. at 26–27.
Following the Court's June 18, 2018 summary judgment Order, the Upper Excess Carriers
and Arch filed new motions for summary judgment, arguing that they are entitled to judgment on
the Plaintiffs' remaining claims based on the prior summary judgment Order. They base their
motions on the Court's rulings on reformation, laches, and standing. The Plaintiffs responded with
their Rule 56(d) Motion, asserting that they need additional discovery in order to fully respond to
the pending summary judgment motions. The Magistrate Judge's Report and Recommendation
concludes that additional discovery is not necessary for the Plaintiffs to be able to respond to the
summary judgment motions, and thus, it recommends denial of the Rule 56(d) Motion.

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Much of the Plaintiffs' Objection to the Report and Recommendation reiterates the
arguments presented in the original Rule 56(d) Motion. The Plaintiffs argue that they should be
permitted to seek any and all relevant and discoverable evidence concerning the case before
responding to the summary judgment motions, and they assert that the Report and
Recommendation is erroneous in cutting short their discovery opportunity. However, Rule 56(d)
does not open the door to any and all discovery; it provides a mechanism to seek discovery
necessary for the pending summary judgment motions. See Citizens for Appropriate Rural Rds.
v. Foxx, 815 F.3d 1068, 1082 (7th Cir. 2016). The Court finds no error in the Magistrate Judge's
recommendation in this regard.
The Plaintiffs complain that the Report and Recommendation states "Lilly" asked the Court
to stay discovery, and they argue this is erroneous because the parties agreed to the stay. However,
the Report and Recommendation is not in error as it correctly explains Lilly asked the Court to
stay discovery and the Defendants did not object to the stay, which is recorded in the Court's
conference notes at Filing No. 1157.
The Plaintiffs also argue the Report and Recommendation is erroneous in concluding the
summary judgment motions are limited to "purely legal" issues because the motions involve
questions of fact. The Court disagrees with the Plaintiffs' position and agrees with the Magistrate
Judge that the pending summary judgment motions concern legal questions about the impact of
the prior summary judgment Order on the remaining claims.
The Court's review of the Magistrate Judge's consideration, analysis, and conclusions
regarding the need for additional discovery to respond to the pending summary judgment motions
leads the Court to conclude that the Magistrate Judge's determination was correct and without
error.

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III. CONCLUSION
For the reasons stated above, the Court OVERRULES the Plaintiffs' Objections (Filing
No. 1248), ADOPTS the Magistrate Judge's Report and Recommendation (Filing No. 1243), and
DENIES the Plaintiffs' Motion for Relief Pursuant to Rule 56(d) (Filing No. 1230). The Plaintiffs
are ordered to file their response, if any, to the pending summary judgment motions (Filing No.
1228 and Filing No. 1229) within thirty (30) days of the date of this Order. The Defendants may
file a reply within fourteen (14) days after the Plaintiffs' response is served.
SO ORDERED.
Date: 5/28/2020

DISTRIBUTION:
Thomas B. Bays
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]

Kyle Andrew Lansberry
LEWIS WAGNER LLP
[e-mail]

Eileen K. Bower
CLYDE & CO US LLP
[e-mail]

Cynthia Elaine Lasher
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]

Jeffrey D. Claflin
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

Ryan Taylor Leagre
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

Jared K. Clapper
NICOLAIDES FINK THORPE
MICHAELIDES SULLIVAN LLP
[e-mail]

Michael P. McNamee
MEAGHER & GEER PLLP
[e-mail]

Colin Edington Connor
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

Erik S. Mroz
DREWRY SIMMONS VORNEHM, LLP
[e-mail]

Andrew J. Detherage
BARNES & THORNBURG LLP
[e-mail]

Katherine Werner O'Malley
COZEN O'CONNOR
[e-mail]

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Kyle M. Dickinson
TRAUB LIEBERMAN STRAUS &
SHREWBERRY LLP
[e-mail]

George M. Plews
PLEWS SHADLEY RACHER & BRAUN
[e-mail]
Meghan Eileen Ruesch
LEWIS WAGNER LLP
[e-mail]

Danielle C. Dobry
MEAGHER & GEER PLLP
[e-mail]

Gina M. Saelinger
ULMER & BERNE LLP
[e-mail]

Wendy N. Enerson
COZEN O'CONNOR
[e-mail]

Frederic Xavier Shadley
ULMER & BERNE LLP
[e-mail]

John Paul Fischer, Jr.
BARNES & THORNBURG LLP
[e-mail]

Charles E. Spevacek
MEAGHER & GEER PLLP
[e-mail]

Ana M. Francisco
FOLEY & LARDNER LLP
[e-mail]

Samuel R. Stalker
COZEN O'CONNOR
[e-mail]

Michael Robert Giordano
LEWIS WAGNER LLP
[e-mail]

Monica T. Sullivan
NICOLAIDES FINK THORPE
MICHAELIDES SULLIVAN LLP
[e-mail]

Emily A. Golding
CLYDE & CO US LLP
[e-mail]

Meaghan A. Sweeney
NICOLAIDES FINK THORPE
MICHAELIDES SULLIVAN LLP
[e-mail]

Gregory M. Gotwald
PLEWS SHADLEY RACHER & BRAUN
[e-mail]
Megan B. Gramke
ULMER & BERNE LLP
[e-mail]

Jason M. Taylor
TRAUB LIEBERMAN STRAUS &
SHREWSBERRY
[e-mail]

Scott A. Harkness
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]

David A. Temple
DREWRY SIMMONS VORNEHM, LLP
[e-mail]

Georgia Hatzis
ULMER & BERNE LLP
[e-mail]

Joseph P. Thomas
ULMER & BERNE LLP
[e-mail]

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Jennifer Snyder Heis
ULMER & BERNE LLP
[e-mail]

John Carl Trimble
LEWIS WAGNER LLP
[e-mail]
Bryan Vezey
COZEN O'CONNOR
[e-mail]

Christian P. Jones
BARNES & THORNBURG, LLP
[e-mail]
Bruce L. Kamplain
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]

Mark F. Wolfe
TRAUB LIEBERMAN STRAUS &
SHREWSBERRY LLP
[e-mail]

Joshua A. Klarfeld
ULMER & BERNE LLP
[e-mail]

Bradley J. Wombles
NORRIS CHOPLIN & SCHROEDER
[e-mail]

Michael S. Knippen
TRAUB LIEBERMAN STRAUS &
SHREWSBERRY LLP
[e-mail]

Joseph Ziemianski
COZEN O'CONNOR
[e-mail]

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