Boyd v. Occidential Fire & Casualty Company of North Carolina

Filing 20

MEMORANDUM ORDER denying 6 Motion to Stay. Signed by Magistrate Judge Karen Hayes on 09/13/2011. (Williams, Lysandra)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
GEORGE L. BOYD

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CIVIL ACTION NO. 10-0672

VERSUS

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JUDGE DONALD E. WALTER

OCCIDENTAL FIRE & CASUALTY
COMPANY OF NORTH CAROLINA

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MAG. JUDGE KAREN L. HAYES

MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, is a
motion to stay proceedings [doc. # 6] filed by defendant, Occidental Fire and Casualty Company
of North Carolina (“Occidental”).1 For reasons stated below, the motion is DENIED.
Background
On August 27, 2010, plaintiff George L. Boyd filed the instant suit for breach of contract
and damages against his homeowner’s insurance company, Occidental, because of the insurer’s
failure to cover the full cost of repairing the damage to plaintiff’s home caused by Hurricane
Gustav in September 2008. (Petition). Plaintiff commenced this action in the 19th Judicial
District Court for the Parish of East Baton Rouge, State of Louisiana. However, on October 6,
2010, Occidental removed the case to federal court on the basis of diversity jurisdiction, 28
U.S.C. § 1332. (Notice of Removal).2
On May 3, 2011, Occidental filed the instant motion to stay proceedings, pending a third

1

As this motion is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor
dispositive of any claim on the merits within the meaning of Rule 72 of the Federal Rules of
Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the
standing order of this court. Any appeal must be made to the district judge in accordance with
Rule 72(a) and LR 74.1(W).
2

order.

The court will address defendant’s deficient jurisdictional allegations, via separate

party appraisal, as contemplated under the terms of the subject policy. On May 19, 2011,
plaintiff filed his opposition to the motion to stay. He argued that a stay was unnecessary
because the parties were following the scheduling deadlines. He further emphasized that the
appraisal process is akin to arbitration, and therefore, defendant waived the defense by failing to
plead it in his answer. Occidental filed its reply memorandum on May 25, 2011, disputing that
the appraisal process is a form of arbitration.
On August 26, 2011, Magistrate Judge Noland vacated the discovery deadlines in this
matter, pending resolution of the motion to stay. (Aug. 25, 2011, Order [doc. # 13]). Three days
later, the case was reassigned to Judge Walter and the undersigned magistrate judge. A
telephone status conference is set before Judge Walter on October 3, 2011. On September 12,
2011, the Clerk of Court referred the pending motion to stay to the undersigned. The matter is
now before the court.
Law
Courts enjoy the discretionary authority to stay proceedings “in the interest of justice and
in control of their dockets.” Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 545 (5th Cir. 1983).
The court’s discretion is not limitless, however. Id. In deciding whether to grant a stay, the
courts “must weigh competing interests and maintain an even balance.” Id. (citing Landis v.
North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 165-66 (1936)). Accordingly, the
court’s decision to grant a stay should contemplate the following factors, “1) hardship and
inequity on the moving party without a stay; 2) prejudice the non-moving party will suffer if a
stay is granted; and 3) judicial economy.” Falgoust v. Microsoft Corp., 2000 WL 462919 (E.D.
La. Apr. 19, 2000) (citations omitted).
Discussion

2

Applying the foregoing considerations here, the court finds that a stay is not warranted.
There currently are no pending discovery deadlines. Moreover, there is no apparent reason why
the parties cannot initiate and complete the appraisal process within a reasonable period of time
without impacting any new deadlines that may be set pursuant to the October 3, 2011, status
conference. In any event, plaintiff does not appear inclined to participate in the appraisal
process; thus, a stay for that purpose would prove superfluous. Of course, by refusing to
participate in the policy’s appraisal process, plaintiff must bear whatever consequences flow
therefrom, if any.3
Conclusion
For the above-assigned reasons,
IT IS ORDERED that the motion to stay proceedings [doc. # 6] filed by defendant,
Occidental Fire and Casualty Company of North Carolina is hereby DENIED.
THUS DONE AND SIGNED in chambers, at Monroe, Louisiana, this 13th day of
September 2011.

3

The court is not persuaded that the appraisal process is akin to arbitration. See Prien
Properties, LLC v. Allstate Ins. Co., Civil Action No. 07-0845, 2008 WL 1733591 (W.D. La.
Apr. 14, 2008) (Minaldi, J.). Even if it were, Occidental formally invoked the appraisal process
in a March 15, 2011, letter between counsel. (M/Stay, Exh. H). “An affirmative defense is not
waived if it is raised at a pragmatically sufficient time, and the plaintiff was not prejudiced in its
ability to respond.” Talbert v. American Risk Ins. Co., Inc., 405 Fed. Appx. 848 (5th Cir. Dec. 20,
2010) (citation omitted). Here, there is no indication that Occidental failed to invoke the
appraisal process at a pragmatically sufficient time or that plaintiff suffered any prejudice in his
ability to respond.
3