Toussie v. Allstate Insurance Company et al

Filing 128

MEMORANDUM AND ORDER: The motion 92 to dismiss is denied. The summary judgment motions 123 & 124 are also denied as premature; they may be revived after issue is joined and appropriate discovery on any new matters is completed. See attached Memorandum and Order for details. Ordered by Judge Frederic Block on 9/30/2016. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT TOUSSIE,
Plaintiff,
-against-

MEMORANDUM AND ORDER
Case No. 14-CV-2705 (FB) (CLP)

ALLSTATE INSURANCE
COMPANY; ALAN RODRIGUEZ
INSURANCE AGENCY, INC.;
GEORGE J. SCHLOTT, INC.; ALAN
RODRIGUEZ, individually; and
GEORGE J. SCHLOTT, individually,
Defendants.
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Appearances:
For the Plaintiff:
MARK E. GOIDELL, ESQ.
666 Old Country Road, Suite 700
Garden City, New York 11530

For Defendant Allstate Insurance Co.:
J. MICHAEL PENNEKAMP, ESQ.
Fowler White Burnett, P.A.
1395 Brickell Avenue, 14th Floor
Miami, Florida 33131
PATRICK W. BROPHY, ESQ.
McMahon, Martine & Gallagher, LLP
55 Washington Street, Suite 270
Brooklyn, New York 11201

BLOCK, Senior District Judge:
On January 25, 2016, defendant Allstate Insurance Company (“Allstate”)
moved to dismiss the complaint against it pursuant to Federal Rule of Civil Procedure
12(b)(6). While the motion was pending, and prior to answer, Allstate and the
plaintiff both moved for summary judgment under Rule 56. All motions are

outstanding.
During oral argument on the motions, the parties referenced facts—apparently
undisputed—that may have some bearing on the just resolution of this case. Although
the plaintiff seeks to recover for the damages occasioned by Hurricane Sandy to one
of his properties on the ground that Allstate incorrectly applied the premium payment
to a different policy covering another one of the plaintiff’s properties damaged by
Hurricane Sandy, he apparently previously recovered on the policy to which the
payment was incorrectly applied. Thus, if summary judgment were granted to the
plaintiff, he would arguably be the recipient of a windfall since he would receive a
double recovery for the same single premium payment. “[C]ourts can and should
preclude double recovery by an individual.” General Tel. Co. v. EEOC, 446 U.S. 318,
333 (1980). Yet, since summary judgment is sought prior to answer, granting
summary judgment to plaintiff at this stage of the litigation would preclude Allstate
from answering and raising affirmative defenses or counterclaims relative to this
issue.
Rule 56(b) allows a summary judgment motion to be made “at any time.” But
courts routinely deny motions for summary judgment as premature when discovery
over relevant matters is incomplete. See, e.g., Miller v. Beneficial Mgmt. Corp., 977
F.2d 834, 846 (3d Cir. 1992) (reversing summary judgment entered when several

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depositions remained to be taken); Murrell v. Bennett, 615 F.2d 306, 315 (5th Cir.
1980) (reversing summary judgment entered before discovery had begun). They have
also recognized that “in many cases [a motion for summary judgment] will be
premature until the nonmovant has had time to file a responsive pleading.” Helios
Int’l S.A.R.L. v. Cantamessa USA, Inc., 23 F. Supp. 3d 173, 188-89 (S.D.N.Y. 2014)
(quoting Fed. R. Civ. P. 56 Advisory Committee Notes).
Federal Rule of Civil Procedure 1 directs district courts to apply the federal
rules to secure a “just, speedy, and inexpensive” determination of an action. It would
be manifestly unjust and a waste of judicial resources if all relevant claims could not
be adjudicated in this litigation because plaintiff had sought summary judgment prior
to answer. Under the circumstances of this case, therefore, both motions for summary
judgment are premature. Cf. Elliott Assocs., L.P. v. Republic of Peru, 961 F. Supp.
83, 86 (S.D.N.Y. 1997) (“It is the duty of this court under Rule 56[(d)] to ensure that
the parties have been given a reasonable opportunity to make their record complete
before ruling on a motion for summary judgment.” (internal quotation marks
omitted)).
The denial of summary judgment, in turn, revives Allstate’s Rule 12(b)(6)
motion to dismiss. Plaintiff has clearly alleged a plausible claim for recovery by
reason of the acknowledged misapplication of his premium payment; hence, the

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motion is denied. The summary judgment motions are also denied as premature; they
may be revived after issue is joined and appropriate discovery on any new matters is
completed.
SO ORDERED.
/S/Frederic Block
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
September 30, 2016

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