Progressive Hawaii Insurance Corporation v. Davis et al

Filing 51

ORDER finding that Defendant Ryan Westbrooks Motions to Adopt 41 and 44 are well-taken, and they are GRANTED. For the reasons stated below, more fully stated at the hearing and set forth more fully herein, the Motion to Dismiss or for Order Compelling Discovery and Motion for Extension of Time to Respond to Motion for Summary Judgment 40 , Motion to Compel Discovery and Motion for Extension of Time to Respond to Motion for Summary Judgment 42 , and Motion to Compel Discovery and Motion for Extension of Time to Respond to Plaintiffs Motion for Summary Judgment 43 are GRANTED IN PART and DENIED IN PART.Signed by Magistrate Judge H Bruce Guyton on 08/16/2013. (KAW)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
PROGRESSIVE HAWAII INS. CORP.,
Plaintiff,
v.
NAKIA DAVIS, et al.,
Defendants.

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No. 3:12-CV-574
(VARLAN/GUYTON)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02. Now before the Court is: (1) Motion to Dismiss1 or for Order
Compelling Discovery and Motion for Extension of Time to Respond to Motion for Summary
Judgment [Doc. 40], filed by Defendants James Russell and Angelic Hodge; (2) Motion to
Compel Discovery and Motion for Extension of Time to Respond to Motion for Summary
Judgment [Doc. 42], filed by Defendant Allstate Insurance Co.; (3) Motion to Compel Discovery
and Motion for Extension of Time to Respond to Plaintiff’s Motion for Summary Judgment
[Doc. 43], filed by Defendant Ryan Westbrook; and (4) two motions to adopt [Docs. 41, 44],
filed by Defendant Westbrook.

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As explained at the hearing, the Court will treat this motion as a motion for discovery sanctions under Rule 37 of
the Federal Rules of Civil Procedure, rather than a motion to dismiss under Rule 12 of the Federal Rules of Civil
Procedure.

Counsel for the Plaintiff and Defendants Ryan Westbrook, James Russell, Angelic
Hodge, Allstate Insurance Co., GEICO, and appeared before the undersigned on August 15,
2013, to address these motions.2
Initially, the Court finds that the Plaintiff did not file a timely response to any of the
motions now before the Court. See E.D. Tenn. L.R. 7.1(a), Fed. R. Civ. P. 6(d), 5(b)(2)(E). The
Court may treat the lack of opposition during the time allowed under the rule as acquiescence to
the relief sought. See E.D. Tenn. L.R. 7.2; see also Campbell v. McMinn County, 2012 WL
369090 (E.D. Tenn. 2012). When asked about the lack of timely response at the hearing, counsel
for Progressive stated that his office’s internal docketing system had failed to bring the matter to
his attention. The Court will not determine whether this statement constitutes good cause for
excusing untimely filings, and the Court will, instead, consider the substance of the pending
motions and the Plaintiff’s response.
Turning to the motions at issue, the Court finds that Defendant Ryan Westbrooks’
Motions to Adopt [Doc. 41, 44] are well-taken, and they are GRANTED. For the reasons stated
below and more fully stated at the hearing, the Motion to Dismiss or for Order Compelling
Discovery and Motion for Extension of Time to Respond to Motion for Summary Judgment
[Doc. 40], Motion to Compel Discovery and Motion for Extension of Time to Respond to
Motion for Summary Judgment [Doc. 42], and Motion to Compel Discovery and Motion for
Extension of Time to Respond to Plaintiff’s Motion for Summary Judgment [Doc. 43] are
GRANTED IN PART and DENIED IN PART as follows:
1. The request that this case be dismissed as a discovery sanction is DENIED. The
Court, however, reminds the parties that failure to comply with this Memorandum

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Attorney Gerald Gulley was present at the same hearing as Administrator Ad Litem for the Estate of Xavier
Bingham.

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and Order or any other Court Order in the future may result in sanctions including
dismissal, see Fed. R. Civ. P. 37(b)(2)(A).
2. The Plaintiff is ORDERED to file a supplement to its Motion for Summary
Judgment stating its position regarding any legal effect the default judgment
entered against Defendant Nakia Davis in this case would have on the arguments
originally presented in support of the Motion for Summary Judgment. Plaintiff
SHALL FILE this supplement on or before September 9, 2013.
3. The Court will deem the hearing on August 15, 2013, to fulfill the Rule 26(f)
discovery conference requirement, though the parties SHALL FILE a written
Rule 26(f) report within the time limits contained in Rule 26(f)(2).
4. Defendants shall have up to and including October 18, 2013, to take discovery in
this case, and the parties are expected to cooperate in taking this discovery in a
timely manner. Specifically, the Court expects that the parties will exchanges the
names of any persons or entities from whom they seek deposition testimony and
counsel will provide their availability for taking depositions as soon as
practicable. If any party fails to cooperate in discovery, the parties may contact
the chambers of the undersigned to schedule a telephonic discovery-dispute
conference.
5. The Defendants shall file any responses to the Motion for Summary Judgment and
the Plaintiff’s supplemental filing to the Motion for Summary Judgment on or
before November 1, 2013. The Plaintiff will have up to and including November
15, 2013, in which to make any final reply.

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6. Finally, as stated at the hearing, this Memorandum and Order is meant to address
preliminary discovery matters and to set a schedule for conducting discovery and
briefing on the Motion for Summary Judgment. It should not be interpreted as
nullifying any pretrial deadlines set in the forthcoming Scheduling Order.
IT IS SO ORDERED.
ENTER:
s/ H. Bruce Guyton
United States Magistrate Judge

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