ALTERRA AMERICA INS. CO. v. DAILY EXPRESS, INC. et al

Filing 62

ORDER THAT PLFF'S MOTION FOR LEAVE TO FILE A REPLY BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT (DOC. #54) IS GRANTED. PLFF'S MOTION FOR PARTIAL SUMMARY JUDGENT (DOC. #43) IS GRANTED. DEFT'S RENEWED MOTION FOR SUMMARY JUDGMENT ( DOCS. #51 & 53) IS DENIED. PLFF'S MOTION FOR LEAVE TO EXCEED THE PAGE LIMIT IN ITS BRIEF IN OPPOSITION TO DEFT'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. #56) IS DENIED AS MOOT. DEFT'S MOTION TO STRIKE PLFF'S MOTION FOR PARTIAL SUMMA RY JUDGMENT (DOC. #45) & ITS MOTION TO STRIKE PLFF'S RESPONSE IN OPPOSITION TO DEFT'S MOTION FOR SUMMARY JUDGMENT (DOC. #59) ARE BOTH DENIED. IT IS FURTHER ORDERED THAT PLFF'S PRETRIAL MEMO DUE BY 12/18/2017. DEFT'S PRETRIAL MEMO DUE BY 12/22/2017. ALL MOTIONS IN LIMINE DUE BY 12/11/2017. FINAL PRETRIAL CONFERENCE SET FOR 1/8/2018 AT 10:00 A.M. JURY SELECTION SET FOR 1/16/2018 AT 9:30 A.M., IN THE U.S. COURTHOUSE IN PHILA., COURTROOM 14B, ETC. THE CLERK OF COURT IS DIRECTED TO REMOVE THIS CASE FROM SUSPENSE & RETURN IT TO THE ACTIVE DOCKET. SIGNED BY CHIEF JUDGE LAWRENCE F. STENGEL ON 9/5/17. 9/6/17 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALTERRA AMERICA INS. CO.,
Plaintiff
vs.
DAILY EXPRESS, INC., et al.,
Defendants

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CIVIL ACTION

NO. 15-3665

ORDER
AND NOW, this

5th

day of September, 2017, IT IS HEREBY ORDERED

as follows:
1. Upon consideration of the plaintiff Alterra America Insurance Company’s
motion for leave to file a reply brief in support of its motion for summary judgment
(Document #54), and the defendant Daily Express, Inc.’s response in opposition
(Document #55), the plaintiff’s motion is GRANTED. In evaluating the plaintiff’s
motion for partial summary judgment, I considered the plaintiff’s reply brief, which was
attached to its motion as Exhibit 1.
2. Upon consideration of the plaintiff’s motion for partial summary judgment
(Document #43), the defendant’s responses in opposition (Documents #48 and 49), and
the plaintiff’s reply (Document #54-1), and for the reasons set forth in the accompanying
memorandum, the plaintiff’s motion for partial summary judgment is GRANTED.
3. Upon consideration of the defendant’s renewed motion for summary judgment
(Documents #51 and 53) and the plaintiff’s response in opposition (Document #57), and

for the reasons set forth in the accompanying memorandum, the defendant’s motion for
summary judgment is DENIED.
4. The plaintiff’s motion for leave to exceed the page limit in its brief in
opposition to the defendant’s motion for summary judgment (Document #56) is
DENIED as moot.
5. Upon consideration of the defendant’s motion to strike the plaintiff’s motion
for partial summary judgment (Document #45) and its motion to strike the plaintiff’s
response in opposition to the defendant’s motion for summary judgment (Document #59),
and the plaintiff’s responses in opposition to these motions to strike (Documents #50 and
60), the defendant’s motions to strike are both DENIED.1

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In its motions to strike, the defendant sets forth the following arguments: that the
plaintiff did not file a separate motion for summary judgment, but only a brief in support of its
motion; that the plaintiff did not include a written statement describing the date and manner of
service; that the plaintiff’s brief and exhibits together exceed the twenty-five page limit set forth
in my policies and procedures; that the plaintiff’s numbering of its exhibits is confusing; that its
statement of undisputed material fact is “impermissibly argumentative;” and that the plaintiff
attached inadmissible evidence as an exhibit.
These arguments are largely unfounded. The plaintiff’s statement of undisputed facts and
brief in support of its motion for summary judgment were adequate to constitute a motion under
Rule 56 of the Federal Rules of Civil Procedure; my twenty-five page limit does not apply to
exhibits; the defendant could (and did) respond to the plaintiff’s statement of material facts
articulating its dispute with any statements; and the evidence plaintiff attached as an exhibit is
admissible (see footnote 6 of the accompanying memorandum).
Although the plaintiff’s numbering of its exhibits in its motion for partial summary
judgment was confusing, the defendant apparently did not work with opposing counsel to
remedy any confusion or prejudice that resulted from the misnumbering before filing its motions
with this court. (Moreover, the plaintiff’s numbering of its exhibits in its subsequent Brief in
Opposition to Defendant’s Motion for Summary Judgment was clear—a fact that did not stop the
defendant from raising the same argument in its next motion to strike).
Lastly, the defendant is correct that the plaintiff is required to file a Certificate of Service
“stating that the document has been filed electronically and is available for viewing and
downloading from the ECF system,” even though the parties are automatically served when a
party electronically files a document using the ECF system. See E.D. Pa. Local R. Civ. P. 5.1.2
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IT IS FURTHER ORDERED that:
1. All parties shall prepare and file with the Clerk of Court their pretrial
memoranda in accordance with this Order and Local Rule of Civil Procedure 16.1(c), as
follows:
(a)

Plaintiffs - on or before Monday, December 18, 2017.

(b)

Defendants - on or before Friday, December 22, 2017.

2. One copy of the pretrial memoranda shall be filed with the Clerk of Court and
two copies shall be sent to the court. In addition to compliance with Local Rule of Civil
Procedure 16.1(c), the parties shall include the following in, or attached to, their pretrial
memoranda:
(a)

a listing of the identity of each expert witness to be
called at trial by the party;

(b)

a curriculum vitae for each expert witness listed;

(c)

a listing of each fact witness to be called at trial
with a brief statement of the nature of their expected
testimony (witnesses not listed may not be called by
that party in its case-in-chief);

(“Electronic Case Filing (‘ECF’) Procedures”) § 8(b). However, I will not strike the plaintiff’s
filings because of this procedural error.
More troubling than any of the plaintiff’s procedural missteps is the defendant’s approach
to this litigation. The defendant describes no prejudice resulting from the supposed errors it
decries, nor does it show that it made any efforts to remedy the errors with opposing counsel
before filing its motions. As the Supreme Court has emphasized, the rules of procedure are not
intended to expand opportunities for argument, but rather to aid in reaching the case’s merits.
See Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988) (“[T]he requirements of the
rules of procedure should be liberally construed and . . . ‘mere technicalities’ should not stand in
the way of consideration of a case on its merits.”); Foman v. Davis, 371 U.S. 178, 181–82 (1962)
(“The Federal Rules reject the approach that pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the principle that the purpose of pleading is
to facilitate a proper decision on the merits.”) (citation and internal quotations omitted).
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(d)

an itemized statement of claimant’s damages or
other relief sought;

(e)

a statement of any anticipated important legal
issues on which the court will be required to rule,
together with counsel’s single best authority on
each such issue.

3. All motions in limine shall be filed on or before Monday, December 11, 2017.
Responses thereto are due on or before Monday, December 18, 2017.
4. The parties shall file in writing with the Clerk of Court one copy of joint
proposed jury instructions on substantive issues and proposed verdict forms or special
interrogatories to the jury. The parties shall also file one copy of proposed jury
instructions, verdict forms, or special interrogatories on those issues not agreed upon by
the parties in their joint submission. These filings shall be made on or before Monday,
January 8, 2018. Each proposed instruction should be printed on a separate sheet of
paper, double spaced, and should include citation to specific authority. Counsel shall
submit a copy of the proposed jury instructions to chambers on an IBM-compatible disk
in Word 2010 format. In the alternative, the copy may be sent to chambers via electronic
mail to [e-mail]. Proposed Jury instructions need only be
submitted with respect to substantive issues in the case.
5. No later than three days before the date trial is scheduled to commence, the
parties shall file a complete and comprehensive stipulation of uncontested facts pursuant
to paragraph (d)(2)(b)(2) of Local Rule of Civil Procedure 16.1; the original shall be filed
with the Clerk of Court, and two copies shall be submitted to the court.

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6. At the commencement of trial, the parties shall provide the court with three
copies of a schedule of exhibits which shall briefly describe each exhibit. At the trial, the
parties shall provide the court with two copies of each exhibit at the time of its first use at
trial.
7. Because a witness may be unavailable at the time of trial in the manner defined
in Federal Rule of Civil Procedure 32(a)(3), the court expects use of oral or videotape
depositions at trial of any witness whose testimony a party believes essential to the
presentation of that party’s case, whether that witness is a party, a non-party or an expert.
The unavailability of any such witness will not be a ground to delay the commencement
or progress of an ongoing trial. In the event a deposition is to be offered, the offering
party shall file with the court, prior to the commencement of the trial, a copy of the
deposition, but only after all efforts have been made to resolve objections with other
counsel. Unresolved objections shall be noted in the margin of the deposition page(s)
where a court ruling is necessary.
8. A Final Pretrial Telephone Conference shall be held on Monday, January 8,
2018 at 10:00 a.m. Counsel for the plaintiff shall initiate the call and include chambers
on 267-299-7760.
9. Jury Selection shall begin on Tuesday, January 16, 2018 at 9:30 a.m., in the
United States Courthouse in Philadelphia, Courtroom 14B. Should time allow, opening
statements shall immediately follow the seating of the jury. Counsel should consider
themselves attached as of this date. This Scheduling Order shall be the only written
notice counsel receive of the date this case will be tried.
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The Clerk of Court is directed to remove this case from suspense and return it to
the active docket.
BY THE COURT:
/s/ Lawrence F. Stengel
LAWRENCE F. STENGEL, C. J.

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