JMB MANUFACTURING, INC. v. CHILD CRAFT, LLC et al

Filing 149

ENTRY ON VARIOUS MOTIONS - 143 JMB's Motion to Strike 91 is DENIED. 138 Child Craft's Motion to Strike 132 is DENIED. Child Craft will have 14 days from the date of this Order to file any Reply to 132 . 137 Motion to Strike 133 is GRANTED and 133 Motion for Summary Judgment is ordered STRICKEN. See Entry for details. Signed by Judge Tanya Walton Pratt on 2/19/2013. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

JMB MANUFACTURING, INC.,
Plaintiff,
v.
CHILD CRAFT, LLC,
HARRISON MANUFACTURING, LLC,
G.E.G. OF INDIANA, LLC,
GATEWAY MANUFACTURING, INC.,
DOUGLAS K. GESSFORD,
DARYL EASON,
Defendants.

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Case No. 4:11-cv-00065-TWP-WGH

ENTRY ON VARIOUS MOTIONS
This matter is before the Court on several motions by the parties. This initial lawsuit was
filed by Plaintiff JMB Manufacturing, Inc. (“JMB”) against several defendants including Child
Craft, LLC (“Child Craft”). Child Craft subsequently filed a counterclaim, making it a counterplaintiff and JMB a counter-defendant. Child Craft filed two motions for summary judgment;
one on JMB’s original complaint (Dkt. 89) and one on its own counterclaim (Dkt. 91). Before
the deadline for responses had passed, the Magistrate Judge granted an extension to the
dispositive motion deadline for the counterclaim only (Dkt. 109). On October 31, 2011, the
dispositive deadline for the counterclaim was set for January 26, 2013 (Dkt. 112). On November
15, 2011, JMB filed a motion to deny Child Craft’s motion for summary judgment (Dkt. 14)1 and
response to Child Craft’s motions, which substantively responded to Child Craft’s motion on the
original complaint (Dkt. 115).2

1

Counsel for JMB did not specify in this filing to which motion, either Dkts. 89 or 91, this filing referred. The
Court interpreted the motion as requesting the denial of both Dkts. 89 and 91.
2

Though the substance of Dkt. 115 responded to Dkt. 89 only, counsel for JMB referenced both Dkts. 89 and 91 in
his filing.

On January 25, 2013, JMB made several filings, including a motion for summary
judgment on its original complaint (Dkt. 133), a motion for summary judgment on the
counterclaim (Dkt. 135), and a response to Child Craft’s motion for summary judgment on the
counterclaim (Dkt. 132). On January 31, 2013, Child Craft made two filings, including a motion
to strike JMB’s motion for summary judgment on its original claim (Dkt. 137) and a motion to
strike JMB’s response to Child Craft’s motion for summary judgment on the counterclaim (Dkt.
138). On February 5, 2013, JMB filed a motion to amend its brief in support of its motion for
summary judgment on the counterclaim (Dkt. 139), which the Court granted on February 14,
2012 (Dkt.146). On February 11, 2013, JMB filed a motion to strike Child Craft’s motion for
summary judgment on the counterclaim (Dkt. 91). Thereafter, the Court ordered expedited
briefing on several of the new motions (Dkt. 141).
As an initial matter, the Court reminds the parties that collateral motions--such as
motions to strike--in the summary judgment process are disfavored. Any dispute over the
admissibility or effect of evidence should be raised through an objection within a party’s brief.
Local Rule 56-1(i). That said, the Court makes the following rulings on the ripe motions.
A.

Child Craft’s Motion to Strike (Dkt. 138) JMB’s Response to Summary Judgment
(Dkt. 132)
In response to Child Craft’s motion to strike, JMB contends that its response to Child

Craft’s motion for summary judgment on the counterclaim (Dkt. 91) found in Dkt. 132 was
timely. First, the Court notes that Local Rule 56-1(b) provides that a “party opposing a summary
judgment motion must, within 28 days after the movant serves the motion, file and serve a
response brief and any evidence (that is not already in the record) that the party relies on to
oppose the motion.” (Emphasis added.) Unless an extension is requested and granted therefor,
responses to motions for summary judgment are due 28 days after the initial motion is filed.
2

Second, the response referred to in LR 56-1, is not itself an independent motion. It is simply a
response. Therefore, when the Magistrate Judge ordered that “any dispositive motion addressing
the counterclaim is due on or before January 26, 2013,” such order referred to motions for
summary judgment, not to responses to motions.
When JMB filed its motion to deny summary judgment and a brief in response to Child
Craft’s motions in November 2012, counsel was not required to file a separate motion as found
at Dkt. 114. Moreover, counsel did not specify which motion for summary judgment for which
it requested denial. However, the substance of Dkt. 115 clearly refers only to Dkt. 89, which was
brought to JMB’s attention by Child Craft in its reply. See Dkt. 124 at 2 (“[JMB], however, has
filed only one Response, and that Response does not directly address any arguments made in
Child Craft’s Motion for Partial Summary Judgment.”).
Although technically, Child Craft’s motion to strike is well-supported by the record, the
Court concludes that justice warrants making an exception in this case.

It is apparent a

misunderstanding has occurred, wherein counsel for JMB sought to request an extension for
responding to and filing motions regarding summary judgment on Child Craft’s counterclaim.3
Therefore, the Court will allow JMB’s response as filed at Dkt. 132 and Child Craft’s motion to
strike (Dkt. 138) is DENIED. Child Craft will have 14 days from the date of this Order to file
any reply to Dkt. 132. Counsel for JMB is instructed in the future to recognize and heed the
distinction between responses and motions, and to file accordingly.
B.

Child Craft’s Motion to Strike (Dkt. 137) JMB’s Motion for Summary Judgment on
the Original Complaint (Dkt. 133)
Child Craft moved to strike JMB’s motion for summary judgment on the original

complaint. JMB failed to respond within the expedited briefing deadline. JMB’s motion found
3

The Court infers this intent from the strategy of filing both a motion to deny (Dkt. 114) and response (Dkt. 115) in
November 2012, as JMB’s request for an extension of time (Dkt. 99) refers only to motions and not responses.

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at Dkt. 133 clearly falls outside the dispositive motion deadline for the original complaint.
Therefore, Child Craft’s motion to strike (Dkt. 137) is GRANTED.

C.

JMB’s Motion to Strike (Dkt. 143) Child Craft’s Motion for Partial Summary
Judgment (Dkt. 91)
In what appears to be a last-ditch effort to thwart Child Craft’s motion on its

counterclaim, JMB has filed a motion to strike Child Craft’s motion for partial summary
judgment as moot. Child Craft filed its motion for partial summary judgment on October 1, 2012
and on October 2, 2012, filed its amended counterclaim. (Dkt. 93.) JMB contends that the
motion for partial summary judgment is therefore moot, based on the general rule that an
amended complaint supersedes an original complaint, thus any pending motion on the original
complaint is rendered moot. However, this is not a rule, per se. And here, where each party has
briefed the summary judgment motion and the substance of the complaint was not altered, justice
would not be served by striking Child Craft’s motion. Therefore, JMB’s motion to strike (Dkt.
143) is DENIED.
CONCLUSION
The following motions are DENIED: JMB’s motion to strike (Dkt. 143) and Child
Craft’s motion to strike (Dkt. 138). Child Craft’s motion to strike (Dkt. 137) is GRANTED and
JMB’s motion for summary judgment (Dkt. 133) is ordered stricken.

SO ORDERED.
02/19/2013
Dated: ____________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

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DISTRIBUTION:
Gordon D. Ingle
FAITH INGLE SMITH LLC
[e-mail]

Jeffrey A. Savarise
Fisher & Phillips LLP
[e-mail]
John C. Roach
RANSDELL & ROACH, PLLC
[e-mail]
S. Chad Meredith
RANSDELL AND ROACH, PLLC
[e-mail]
W. Keith Ransdell
RANSDELL AND ROACH, PLLC
[e-mail]

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