Central Mutual Insurance Company v Broan-Nutone, LLC et al

Filing 45

OPINION AND ORDER by Judge Terence Kern ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 4/5/2017); denying 41 Motion for Miscellaneous Relief; denying 44 Motion for Hearing (Re: 42 Response in Opposition to Motion, ) (lmc, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(1) CENTRAL MUTUAL INSURANCE )
COMPANY as subrogee of DAVID
)
RICH COMPANY,
)
)
Plaintiff,
)
)
vs.
)
)
(1) BROAN-NUTONE, LLC, and
)
(2) A.O. SMITH CORPORATION,
)
)
Defendants.
)

Case No. 15-CV-559-TCK-FHM

OPINION AND ORDER
Before the Court are Defendant A.O. Smith Corporation’s (“A.O. Smith”) Motion to Deem
Unopposed Motion for Summary Judgment and Unopposed Daubert Motion Confessed (“Motion
to Deem Confessed”) (Doc. 41) and Plaintiff’s combined Response in Opposition to Defendant A.O.
Smith Corporation’s Motion to Deem Confessed (“Opposition”) and Motion for Extension of Time
to Respond (“Motion for Extension”) (Doc. 42).
I.

Factual Background
On February 21, 2017, A.O. Smith filed a motion for summary judgment (Doc. 38) and a

motion to exclude testimony (Doc. 39) (collectively, the “Underlying Motions”). Plaintiff failed to
respond to the Underlying Motions by the required date. On March 20, 2017, A.O. Smith filed its
Motion to Deem Confessed. On March 20, 2017, Plaintiff filed its Opposition and Motion for
Extension. On March 22, 2017, A.O. Smith filed a reply in support of its Motion to Deem
Confessed (Doc. 43). On March 28, 2017, Plaintiff filed an Unopposed Motion for Oral Argument
on the Motion to Deem Confessed and Motion for Extension (Doc. 44).

Plaintiff’s lead counsel, James B. Hamilton (“Hamilton”), is admitted pro hac vice in this
proceeding. Hiltgen & Brewer, P.C., an Oklahoma law firm, is serving as local counsel. Hamilton
did not receive notice of electronic filing of the Underlying Motions because he first became a
registered user of the Case Management and Electronic Case Filing (“CM/ECF”) system in the
Northern District of Oklahoma on March 3, 2017, after the Underlying Motions were filed.
Hamilton was first alerted to the existence of the Underlying Motions when he received notification
through CM/ECF of the filing of the Motion to Deem Confessed. Plaintiff argues that A.O. Smith
failed to serve the Underlying Motions on Hamilton in accordance with the Court’s CM/ECF
Administrative Manual, which states that an “e-filer must manually serve parties and/or attorneys
who are not CM/ECF Users with a copy of any document filed electronically in accordance with the
Federal Rules of Procedure and the Local Rules.” (Pl.’s Opp. Ex. 6). Because Hamilton did not
receive service or notice of the filing of the Underlying Motions, Plaintiff states that it “was
prejudiced from filing timely responses,” (Pl.’s Opp. ¶ 12), and requests leave to file responses to
the Underlying Motions within 10 days.
A.O. Smith argues that because the Underlying Motions were properly served on Plaintiff’s
local counsel, Hamilton is deemed to have received service pursuant to N.D. Okla. Civ. R. 83.3(b),
which provides that “[a]ny notice, pleading or other paper may be served upon the local counsel with
the same effect as if personally served on the non-resident attorney.” A.O. Smith also requests an
award of attorney fees and costs incurred pursuant to N.D. Okla. Civ. R. 7.2(f).
II.

Analysis
Under N.D. Okla. Civ. R. 7.2(e), the Court may, in its discretion, deem confessed any non-

dispositive motion that is not timely opposed. With respect to dispositive motions, under Local Rule
7.2(f), the Court has discretion to either grant additional time to respond to the motion or, upon

motion, to grant confession of judgment. Rule 7.2(f) also permits the Court, in either event, to
award “sanctions, including but not limited to all attorney fees and costs incurred by the moving
party in connection with” the non-moving party’s failure to timely oppose the dispositive motion.
LCvR 7.2(f).
The Court finds that service of the Underlying Motions on local counsel via CM/ECF was
effective service on Hamilton pursuant to Local Rule 83.3(b). Although a party filing via CM/ECF
is required to manually serve “parties and/or attorneys” who are not CM/ECF users, the same local
CM/ECF procedures specify that attorneys admitted to the bar of this Court, including those
admitted pro hac vice, must register as CM/ECF users. (See Pl.’s Opp. Ex. 6.) Therefore, the Court
finds that Plaintiff lacks a legitimate excuse for failing to timely respond to the Underlying Motions
and finds that an award of fees and costs is proper as sanctions under Local Rule 7.2(f).
In the interest of deciding cases on the merits and because Plaintiff stands ready to respond
to the Underlying Motions in a timely manner, the Court in its discretion will permit Plaintiff to file
responses to the Underlying Motions no later than 10 days from the date of this Order. While A.O.
Smith requests that the Court set any extension from the original due date for Plaintiff’s responses,
the Court finds that doing so would be impracticable.
III.

Conclusion
A.O. Smith’s Motion to Deem Confessed (Doc. 41) is DENIED; Plaintiff’s Motion for

Extension (Doc. 42) is GRANTED; and Plaintiff’s Unopposed Motion for Oral Argument (Doc. 44)
is DENIED.

A.O. Smith’s request for attorney fees and costs under Local Rule 7.2(f) is GRANTED.
A.O. Smith is ORDERED to submit a motion for attorney fees and costs in this regard no later than
one week from the date of this Order.

ORDERED this 29th day of March, 2017.

____________________________________
TERENCE C. KERN
United States District Judge