LM Insurance Corporation v. Smart Framing Construction LLC et al

Filing 38

MEMORANDUM AND ORDER granting in part and denying in part 29 National Liability's Motion to Strike Plaintiff's Reply Brief as Out of Time or, in the Alternative, Motion to File Sur-Reply Brief. The Court grants National Liability's motion to file a surreply. The motion is otherwise denied. National Liability shall have until March 19, 2025, to file a surreply in opposition to Plaintiff's Motion for Review by District Judge. National Liability's surreply should address only the new legal arguments raised in Plaintiff's Reply in Support of Motion for Review by District Judge. Signed by District Judge Julie A. Robinson on March 5, 2025. (mls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LM INSURANCE CORPORATION,
Plaintiff,
v.

Case No. 2:24-CV-02097-JAR-ADM

SMART FRAMING CONSTRUCTION LLC,
et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff LM Insurance Corporation brings this declaratory judgment action against
Defendants Smart Framing Construction LLC (“Smart Framing”) and Angel Gutierrez Castillo
seeking a determination that an insurance policy it issued to Smart Framing does not provide
coverage for a workers’ compensation claim by Gutierrez Castillo. National Liability & Fire
Insurance Company (“National Liability”) filed a motion to intervene,1 and Magistrate Judge
Angel D. Mitchell issued an order granting that motion.2 Plaintiff filed a Motion for Review by
District Judge3 requesting this Court to set aside Judge Mitchell’s order.
This matter is now before the Court on National Liability’s Motion to Strike Plaintiff’s
Reply Brief as Out of Time or, in the Alternative, Motion to File Sur-Reply Brief (Doc. 29). The
motion is fully briefed, and the Court is prepared to rule.4 For the reasons set forth below, the
Court grants in part and denies in part National Liability’s motion.

1

Doc. 14.

2

Doc. 17.

3

Doc. 20.

4

While National Liability did not file a reply brief in support of its motion, the Court deems the motion
ripe for decision because National Liability’s deadline to reply has passed.

I.

Motion to Strike Plaintiff’s Reply
Plaintiff filed its Reply in Support of Motion for Review by District Judge 13 days after

National Liability filed its Response. National Liability argues that Plaintiff’s reply was subject
to D. Kan. Rule 6.1(d)(4)’s 7-day deadline applicable to “Other motions” and was thus untimely.
National Liability requests the Court to strike or disregard Plaintiff’s reply. Plaintiff responds
that it docketed its reply deadline as a dispositive motion deadline which is 14 days after the
response is filed.5 Plaintiff contends that although its motion for review is not dispositive on its
face, judicial review of the magistrate’s order could have the effect of disposing of National
Liability’s defenses and role as a party in this declaratory judgment action.
Generally, a court will not consider untimely briefs absent a showing of excusable
neglect.6 Excusable neglect is a somewhat elastic concept and is not limited strictly to omissions
caused by circumstances beyond the control of the movant.7 On the other hand, “inadvertence,
ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’
neglect.”8 In determining whether there has been excusable neglect, a court should consider all
relevant circumstances, including “the danger of prejudice to the [opposing party], the length of
the delay and its potential impact on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and whether the movant acted in
good faith.”9

5

See D. Kan. Rule 6.1(d)(1).

6

See Hadd v. Aetna Life Ins., No. 17-2533-HLT-KGG, 2019 WL 7504840, at *1 (D. Kan. June 18, 2019)
(“[A] district court may, in its discretion, consider an untimely filing where the failure to timely act was the result of
excusable neglect.”); see also Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must be done within a specified time,
the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to
act because of excusable neglect.”).
7

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 391–92 (1993).

8

Id. at 392.

9

Id. at 395; see also Bishop v. Corsentino, 371 F.3d 1203, 1206–07 (10th Cir. 2004).

2

Here, the Court need not decide whether Plaintiff’s reply was subject to the 7-day or 14day deadline because even if the 7-day deadline was applicable, the Court finds that any neglect
by Plaintiff was excusable. Considering the factors discussed above, there would be no prejudice
to National Liability if the Court permitted the untimely reply. This is especially true since the
Court will allow National Liability to file a surreply.10 Nor did the delay impact judicial
proceedings in any way. Lastly, the Court finds Plaintiff’s explanation for believing that its
reply was subject to the 14-day deadline to be reasonable.
Thus, the Court denies National Liability’s motion to strike Plaintiff’s reply and will
consider the reply in ruling on Plaintiff’s motion for review.
II.

Motion to File Surreply
In the alternative, Plaintiff requests the Court to allow it to file a surreply. National

Liability argues that Plaintiff’s reply contains legal arguments not made in its motion for review
and that it would like the opportunity to respond to these new arguments in a surreply. Plaintiff
contends that a surreply is unnecessary because its reply did not raise new issues or arguments.
D. Kan. Rule 15.1 governs the filing of documents that may not be filed as a matter of
right, including surreplies. Under that rule, a party seeking leave to file must “set forth a concise
statement of the . . . leave sought,” “attach the proposed pleading or other document,” and
“comply with the other requirements of D. Kan. Rule 7.1.”11
Here, National Liability’s motion to file a surreply includes the following list of “new
legal arguments” Plaintiff made in its reply but not its motion:
(a) National Liability has not asserted an affirmative claim for
declaratory judgment or joined its insured, a necessary party to
any determination that National Liability does not owe
10

See infra Section II.

11

D. Kan. Rule. 15.1(a).

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benefits. National Liability has presented no bases for the
Court to conclude that its payment of benefits would be
wrongful and would, therefore, constitute an injury. Plaintiff
makes this argument with no legal citation for support.
(b) National Liability sees [sic] after the default of GutierrezCastillo, to assert a position that is antagonistic to his interests
under the intervenor’s policy without his involvement in the
litigation, rather than filing its own declaratory judgment action
against him. Plaintiff claims this is “procedural maneuvering.”
(c) Plaintiff argues that the “fact-based” Hanna test can only be
applied if Fast Frame is a party to the action.
(d) Plaintiff claims that a declaratory judgment cannot be brought
because National Liability is not an insured or third-party
beneficiary under Liberty’s policy. It challenges Magistrate
Mitchell’s comparison of this matter to an excess insurer’s
right to intervene to determine coverage obligation to the same
insured (Defendant Gutierrez in this matter).12
Plaintiff’s response does not identify where these arguments can be found in its motion.
However, the Court finds that Plaintiff’s argument that National Liability’s insured is a necessary
party to any determination that National Liability does not owe benefits to Gutierrez Castillo,
found in the first sentence of Paragraph 5(a), was made in Plaintiff’s motion for review.13 The
remaining arguments in the list are indeed new arguments not made in Plaintiff’s motion.14
Although National Liability did not attach the proposed surreply to its motion as D. Kan. Rule

12

Doc. 29 ¶ 5.

13
See Doc. 20 at 6–7 (“[National Liability] did not assert any third-party claim against its own insured,
nonparty Fast Frame. . . . The premise of the motion, that [Plaintiff] should afford coverage instead of National
Liability, also depends upon a proposition—that National Liability is not required to afford coverage—not even
presented for determination by the proposed pleading attached to the motion. The answer does not include a thirdparty claim against its own insured, [Fast Frame], to establish that, for whatever reason, National Liability’s policy
does not afford coverage. That proposition could not be determined in the absence of [Fast Frame] itself as a
party.”).

In its motion for review, Plaintiff, arguing that any dispute regarding National Liability’s coverage is not
ripe for determination, asserts that National Liability failed to allege why it would be wrong for it to pay benefits to
Gutierrez Castillo. In its reply, Plaintiff, arguing that National Liability does not have standing to intervene because
it failed to satisfy the “injury” element, asserts that National Liability failed to present a basis for the Court to
conclude that its payment of benefits to Gutierrez Castillo would be wrongful. The Court considers these different
arguments.
14

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15.1 requires, the Court will permit National Liability to file a surreply addressing the new legal
arguments made in Plaintiff’s reply.
Thus, National Liability’s motion to file a surreply is granted.
IT IS THEREFORE ORDERED BY THE COURT that National Liability’s Motion to
Strike Plaintiff’s Reply Brief as Out of Time or, in the Alternative, Motion to File Sur-Reply
Brief (Doc. 29) is granted in part and denied in part. The Court grants National Liability’s
motion to file a surreply. The motion is otherwise denied.
IT IS FURTHER ORDERED BY THE COURT that National Liability shall have until
March 19, 2025, to file a surreply in opposition to Plaintiff’s Motion for Review by District
Judge. National Liability’s surreply should address only the new legal arguments raised in
Plaintiff’s Reply in Support of Motion for Review by District Judge.
IT IS SO ORDERED.
Dated: March 5, 2025
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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