Insurance Company of the State of Pennsylvania v. Gemini Insurance Company et al

Filing 26

ORDER that 7 and 10 Motions for Summary Judgment are DENIED. FURTHER ORDERED that 13 Motion to Seal is DENIED as moot. Signed by Judge Robert C. Jones on 1/10/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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INSURANCE COMPANY OF THE STATE OF )
PENNSYLVANIA,
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Plaintiff,
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vs.
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GEMINI INSURANCE CO. et al.,
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Defendants.
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2:13-cv-02211-RCJ-PAL
ORDER

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Plaintiff Insurance Company of the State of Pennsylvania sued three Defendants in

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diversity in this Court on December 2, 2013, seeking several declarations as to the parties’ rights

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and responsibilities under excess liability insurance policies, as well as monetary damages under

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theories of equitable subrogation and indemnity. No Defendant has appeared, and no evidence of

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service appears in the record, except for a December 12, 2013 waiver of service by Defendant

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Gemini Insurance Co. (“Gemini”) indicating that is has sixty (60) days from December 10, 2013

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to answer or defend under Rule 12. (See Waiver of Service, Dec. 12, 2013, ECF No. 24).

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Plaintiff, however, filed two offensive motions for summary judgment on December 3

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and 4, 2013, respectively. No party had been served or had waived service when Plaintiff filed

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those motions. In fact, the Clerk had not yet even issued the Summonses. Rule 56(b) permits a

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party to file such a motion at any time before 30 days after the close of discovery. The motions

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are therefore not technically premature. However, the time to respond to the motions in this case

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will expire before the non-movants are required to appear and defend. It is clear that a

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prejudicial due process violation would result from the adjudication of an offensive summary

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judgment motion in favor of a plaintiff at a time when the relevant defendant has time remaining

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to answer or otherwise defend, or, moreover, has not even yet been served with a summons and

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complaint or waived service thereof. The Court will therefore deny the motions, without

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prejudice. Plaintiff may refile the motions, if necessary, after all parties have been served, have

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waived service, or have defaulted, and after the time to file an answer or otherwise defend under

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Rule 12 has lapsed.

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CONCLUSION
IT IS HEREBY ORDERED that the Motions for Summary Judgment (ECF Nos. 7, 10)
are DENIED.

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IT IS FURTHER ORDERED that the Motion to Seal (ECF No. 13) is DENIED as moot.

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IT IS SO ORDERED.

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Dated this 10th day of January, 2014.
Dated this 27th day of December, 2013.
_____________________________________
ROBERT C. JONES
United States District Judge

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