Elk City Golf and Country Club v. Philadelphia Indemnity Insurance Company

Filing 96

ORDER denying 47 Defendant's Motion to Strike Summary Judgment Evidence. Signed by Honorable Timothy D. DeGiusti on 9/27/2019. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ELK CITY GOLF AND COUNTRY
CLUB, INC.,
Plaintiff,
v.
PHILADELPHIA INDEMNITY
INSURANCE COMPANY,
Defendant.

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Case No. CIV-18-196-D

ORDER
Before the Court is Defendant’s Motion to Strike Summary Judgment Evidence
[Doc. No. 47]. Plaintiff responded in opposition [Doc. No. 51], and Defendant replied
[Doc. No. 54]. The matter is fully briefed and at issue.
BACKGROUND
Plaintiff’s breach of contract and bad faith claims arise out of an insurance policy
issued by Defendant to Plaintiff. Plaintiff alleges that its real and personal property was
damaged and destroyed by a tornado on May 16, 2017.
Defendant has filed a Motion for Summary Judgment [Doc. No. 38], arguing it is
entitled to a judgment on Plaintiff’s claims as there is no genuine dispute as to any material
fact. Plaintiff responded, and Plaintiff’s response [Doc. No. 45] includes several exhibits
to which Defendant objects and moves to strike, including Exhibit Nos. 1, 3, 5-8, 11, and
13-17. Defendant subsequently filed its Motion to Strike Summary Judgment Evidence
[Doc. No. 47].

STANDARD OF DECISION
In moving to strike summary judgment evidence, a separate motion to strike is not
necessary. See FED. R. CIV. P. 56 advisory committee’s note to 2010 amend. (“There is no
need to make a separate motion to strike.”). Rule 56(c)(2) provides that “[a] party may
object that the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” FED. R. CIV. P. 56(c)(2). Congress amended FED. R.
CIV. P. 56 in 2010 to include this language. “Before this amendment, parties properly
challenged evidence used in a summary judgment motion by filing a motion to strike ….
The plain meaning of these provisions shows that objecting to the admissibility of evidence
supporting a summary judgment motion is now a part of summary judgment procedure,
rather than a separate motion to be handled preliminarily.” Campbell v. Shinseki, 546 Fed.
Appx. 874, 879 (11th Cir. 2013) (internal citation omitted); see also Cutting Underwater
Technologies USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012) (“[I]t
is no longer necessary for a party to file such a motion; instead, the party may simply object
to the material.”).
DISCUSSION
In accordance with the 2010 changes to Rule 56(c)(2), the Court will consider
Defendant’s Motion to Strike Summary Judgment Evidence as an objection to the
admissibility of Plaintiff’s Exhibit Nos. 1, 3, 5-8, 11, and 13-17. This motion and all related
filings will be addressed as such in the Court’s forthcoming Order ruling on Defendant’s
Motion for Summary Judgment.
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CONCLUSION
Based on the foregoing, Defendant’s Motion to Strike Summary Judgment Evidence
[Doc. No. 47] is DENIED as set forth herein.
IT IS SO ORDERED this 27th day of September 2019.

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