Cardiff et al v. National Grange Mutual Insurance Company

Filing 59

ORDER adopting (23) Report and Recommendations, rejecting Plaintiff's NGM's Partial Objection and denying (19) Motion to Dismiss (in case 1:11-cv-00292-S-DLM); denying Plaintiff NGM's Appeals re: 52 Order Denying NGM's Motion to Sever (in case 1:10-cv-000039-S-DLM), 51 Order Granting Motion to Consolidate (in case 1:10-cv-000039-S-DLM), 55 Order on Motion to Strike Supplemental Answers to Interrogatories (in case 1:10-cv-000039-S-DLM). So Ordered by Judge William E. Smith on 6/12/12. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
v.
)
)
NATIONAL GRANGE MUTUAL
)
INSURANCE COMPANY,
)
Defendant.
)
___________________________________)
)
NGM INSURANCE COMPANY,
)
Plaintiff,
)
)
v.
)
)
ALBERT LORENZO JR., d/b/a
)
A LORENZO MASONRY;
)
MICHAEL CARDIFF;
)
and BARBARA CARDIFF,
)
Defendants.
)
___________________________________)
MICHAEL CARDIFF and
BARBARA CARDIFF,
Plaintiffs,

C.A. No. 10-39 S

C.A. No. 11-292 S

ORDER
WILLIAM E. SMITH, United States District Judge.
Before
Company’s

the
(NGM)1

Recommendation

Court

are:

Partial

Regarding

the

National

Grange

Objection

to

Cardiffs’

Mutual
the

Motion

to

Insurance

Report

and

Dismiss

the

Amended Complaint (ECF No. 27, C.A. No. 11-292) (hereinafter
“NGM’s Partial Objection”); Appeal from the Order Denying NGM’s
Motion to Sever (ECF No. 52, C.A. No. 10-39); Appeal from an

1

NGM is Defendant to C.A. No. 10-39 S and Plaintiff in C.A.
No. 11-292 S.

Order Granting the Motion to Consolidate (ECF No. 51, C.A. No.
10-39); and Appeal of Judge Magistrate Martin’s Memorandum and
Order

on

Motion

to

Strike

Supplemental

Interrogatories (ECF No. 55, C.A. No. 10-39).

Answers

to

The Court held a

hearing on NGM’s appeals and Partial Objection on May 30, 2012.
After carefully reviewing the memoranda filed before this
Court and before the Magistrate Judge, the Court denies NGM’s
appeals, rejects NGM’s Partial Objection, and adopts the Report
and Recommendation (ECF No. 23, C.A. No. 11-292).

Most of NGM’s

arguments were addressed thoroughly by the Magistrate Judge, and
the Court does not need to address them a second time.

However,

one issue deserves some brief discussion.
The Magistrate Judge, in his Memorandum and Order Granting
in Part Motion to Compel and/or Strike (“Order on Motion to
Strike”) (ECF No. 47, C.A. No. 10-39), granted the Cardiffs’
motion

to

strike

portions

of

NGM’s

supplemental

answers

to

interrogatories, which were served after the close of discovery
on July 5, 2011.

Judge Martin granted the motion on the grounds

that the answers were supplemented in an untimely fashion and,
therefore, were prejudicial to the Cardiffs’ ability to conduct
thorough discovery and to prepare for trial.

On appeal, NGM

argued to this Court that the coverage defenses that it asserted
in

its

supplemental

responses

were

not

untimely

because

the

information necessary to assert those defenses (i.e., that L&G
2

Construction

purportedly

was

not

a

d/b/a,

but

rather

a

partnership) was not available earlier to NGM.
Consideration of NGM’s argument calls on the Court to take
a

fresh

look

at

this

issue,

reviewing

the

matter

de

novo.

Because this is not the usual standard applied to appeals of
magistrate judge orders, a few words are in order.

The Court

discussed this point at some length in Credit Northeast Inc. v.
Global Equity Lending, Inc., 748 F. Supp. 2d 134, 136 (D.R.I.
2010).
that

Suffice it to say that federal courts have recognized

some

pretrial

matters

must

be

reviewed

de

novo

if

the

disposition is “dispositive of a claim or defense” within the
meaning of Rule 72 of the Federal Rules of Civil Procedure.

See

Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 5–6 (1st Cir.
1999).

Accordingly, the Court will review de novo the Order on

Plaintiff’s

Motion

to

Strike

because

that

Order

effectively

precludes a defense that may have otherwise been available to
NGM.
The Court has carefully considered NGM’s argument and finds
it

unpersuasive.

As

the

Magistrate

Judge

said,

“the

facts

contained in the supplemental answers were known (or should have
been

known)

to

NGM

well

in

advance

of

the

June

30,

2011,

deadline for completion of fact discovery.”

(Order on Motion to

Strike

Judge

19,

ECF

No.

47.)

The

Magistrate

detailed

the

efforts that the Cardiffs undertook, beginning with propounding
3

interrogatories on August 2, 2010, aimed at discovering whether
NGM would assert additional coverage defenses.

Indeed, in NGM’s

Objection to the Cardiff’s Motion to Strike, it states that it
“should

not

be

penalized

for

not

connection to plaintiffs. . . .”
coverage

was

investigated

an

“obvious”

long

before

issue,
July

5,

highlighting

that

obvious

As this statement implies,
one

which

2011.

NGM

should

Accordingly,

have
NGM’s

Appeal from the Memorandum and Order Granting in Part Motion to
Compel and/or Strike is DENIED.
The Report and Recommendation filed on February 24, 2012,
is ADOPTED, and Plaintiff NGM’s Partial Objection is REJECTED.
NGM’s Appeals from the Order Denying NGM’s Motion to Sever (ECF
No.

52,

C.A.

No.

10-39);

Order

Granting

the

Motion

to

Consolidate (ECF No. 51, C.A. No. 10-39); and Order on Motion to
Strike Supplemental Answers to Interrogatories (ECF No. 55, C.A.
No. 10-39) are all DENIED.

IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: June 12, 2012

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