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

Filing 92

Judge Indira Talwani: ORDER entered denying 89 Motion for Reconsideration. See attached Order. (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
November 3, 2014
TALWANI, D.J.
Before the court is Plaintiff’s Motion to Reconsider Motion [#89]. Plaintiff seeks
reconsideration of this court’s Order of October 29, 2014, striking Plaintiff’s cross-motion for
summary judgment. Plaintiff requests further that to the extent the court does not reconsider its
order, that this motion be treated as a motion for leave to file its cross-motion for summary
judgment.
Plaintiff asserts that it believed that its motion was timely despite the court’s prior
scheduling order, and that in any event, it could not meet the court’s August 29, 2014, deadline
because it had not received all discovery materials it was entitled to until October 1, 2014.
Plaintiff could have avoided this dilemma by: (1) seeking clarification of the court’s order prior
to the August 29, 2014 deadline; or (2) moving to extend the dispositive motion deadline when
discovery was not forthcoming.
Plaintiff does not dispute that to establish its claim, it must show both (1) that Defendant
Supervalu, Inc. (“Supervalu”) was “engaged in the business of insurance,” and (2) that Supervalu

failed to timely settle a prior action between the Estate and Supervalu’s former subsidiary,
Shaw’s Supermarkets, Inc. (“Shaw’s”). Accordingly, Plaintiff can show no prejudice in having
the court consider first whether Supervalu was “engaged in the business of insurance.” If the
court denies Supervalu’s motion for summary judgment on this issue, the court will allow both
parties to file further dispositive motions on a schedule set by the court.
Accordingly, Plaintiff’s Motion to Reconsider Motion [#89] is hereby DENIED without
prejudice to Plaintiff refiling its motion for summary judgment, on a schedule to be set by the
court, in the event that the court does not grant Defendant’s pending motion for summary
judgment.
IT IS SO ORDERED.
/s/ Indira Talwani
United States District Judge

Date: November 3, 2014

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