Warren Bingham as Executor of the Estate of Marion Bingham v. Supervalu Inc.

Filing 86

Judge Indira Talwani: ORDER entered granting in part and denying in part 84 Motion to Strike (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WARREN BINGHAM AS EXECUTOR
OF THE ESTATE OF MARION
BINGHAM,
Plaintiff,
v.
SUPERVALU INC.,
Defendant.

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Civil Action No. 13-cv-11690-IT

ORDER
October 29, 2014
TALWANI, D.J.
Plaintiff Warren Bingham, as Executor of the Estate of Marion Bingham (the “Estate”),
brings this action pursuant to Massachusetts General Laws chapters 93A and 176D alleging that
Supervalu, Inc. (“Supervalu”) failed to timely settle a prior action between the Estate and
Supervalu’s former subsidiary, Shaw’s Supermarkets, Inc. (“Shaw’s”). Before the court is
Defendant’s Motion (1) to Strike Plaintiff’s Opposition to Defendant’s Motion for Summary
Judgment and Plaintiff’s Cross-Motion for Summary Judgment or (2) for Protective Order [#84].
This motion is hereby ALLOWED in part and DENIED in part.
Under the court’s scheduling order, dispositive motions were due on August 29, 2014.1
At the July 16, 2014, scheduling conference, Defendant requested leave to address a potentially
dispositive issue—whether Supervalu was “in the business of insurance” under Massachusetts
General Law chapter 176D—while reserving its other summary judgment issues. The court

1

See Scheduling Order [#16].

allowed this modification to the scheduling order, but did not otherwise change the deadline for
filing dispositive motions.2 Plaintiff sought no modification in the summary judgment deadlines.
Plaintiff filed his Cross-Motion for Summary Judgment [#68] on the evening of October
3, 2014, well after the deadline for filing such motions, and without seeking leave of court for
this late filing. Accordingly, the court allows Defendant’s motion to strike Plaintiff’s untimely
cross-motion.
Plaintiff’s Memorandum of Law in Opposition to Defendant Supervalu, Inc’s Motion for
Summary Judgment and in Support of the Plaintiff’s Cross-Motion for Summary Judgment [#69]
addresses in part the issue raised by Defendant’s summary judgment motion—namely, whether
Supervalu was engaged in the “business of insurance.” It also includes legal argument in support
of Plaintiff’s argument that Supervalu failed to effectuate settlements of claims once liability
became reasonably clear. Because the cross-motion is untimely and was filed without leave of
court, this additional argument is not properly before the court. Accordingly, the court allows
Defendant’s motion to strike Plaintiff’s memorandum. Plaintiff may refile a redacted version of
this document no later than October 31, 2014, as a Memorandum in Opposition to Defendant
Supervalu Inc.’s Motion for Summary Judgment, deleting all arguments relating to the Estate’s
claim that Supervalu failed to effectuate settlements of claims once liability became reasonably
clear.
Defendant’s alternative request for a protective order is DENIED as moot.
IT IS SO ORDERED.
/s/ Indira Talwani
United States District Judge

Date: October 29, 2014

2

See Electronic Clerk’s Notes [#55].
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