Borandi et al v. USAA Casualty Insurance

Filing 55

MEMORANDUM DECISION and ORDER denying 42 Motion to Strike; denying 46 Motion to Strike. Defendant is directed to file an amended Reply brief by December 19, 2014. Signed by Judge Ted Stewart on 12/4/2014. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CHRISTY BORANDI and TODD
BORANDI,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTIONS TO STRIKE

Plaintiffs,
v.
USAA CASUALTY INSURANCE
COMPANY,

Case No. 2:13-CV-141 TS
District Judge Ted Stewart

Defendant.

This matter is before the Court on Defendant’s two Motions to Strike. For the reasons
discussed below, the Court will deny both Motions, but will permit Defendant to file an amended
Reply to its Motion for Summary Judgment.
Plaintiffs brought this action in state court on January 18, 2013. This action was later
removed to this Court. Plaintiffs assert claims for breach of contract, breach of the covenant of
good faith and fair dealing, breach of fiduciary duty, loss of consortium, intentional infliction of
emotional distress, and bad faith.
Defendant filed a Motion for Summary Judgment on July 15, 2014. Defendant seeks
summary judgment on all of Plaintiffs’ claims. Plaintiffs’ counsel sought and received two
extensions from opposing counsel, making Plaintiffs’ Memorandum in Opposition due on
August 29, 2014. On August 28, 2014, Plaintiffs’ counsel separated from his former law firm.
There was initial confusion as to whether Plaintiffs’ counsel would continue to represent
Plaintiffs or whether his former firm would continue the representation. Plaintiffs’ counsel also
asserts that his former firm delayed in providing him the file related to this case.

1

Plaintiffs filed their Memorandum in Opposition on August 29, 2014. The Memorandum
in Opposition references various exhibits, including the Affidavit of Christy Borandi. However,
Plaintiffs did not attach any exhibits to their Memorandum. Plaintiffs did not file the exhibits
referenced in their Memorandum in Opposition until October 8, 2014.
Defendant sought an extension of time from Plaintiffs’ counsel to file its Reply brief
based on the fact that the exhibits had not been filed. Plaintiffs’ counsel declined to consent to
an extension. Further requests for an extension made by Defendant’s counsel went unanswered.
Defendant filed its Reply on September 26, 2014. On that same date, Defendant filed its
first Motion to Strike. Defendant seeks to strike the exhibits referenced in Plaintiffs’
Memorandum in Opposition because they were not timely filed.
The Court declines to strike these documents, as they have now been provided. There is
a strong preference for the disposition of litigation on the merits and the consideration of these
materials will result in a full and fair consideration of Defendant’s Motion for Summary
Judgment. 1 Further, little, if any, prejudice will result if the Court considers these exhibits. This
is especially true because, as will be discussed in more detail, the Court will provide Defendant
an opportunity to file an amended Reply to address any issues raised in the now-filed exhibits.
The Court pauses to note that this entire situation could have and should have been easily
resolved by counsel. If Plaintiffs’ counsel did not have the materials he needed to file a properly
supported Memorandum in Opposition, he should have requested an additional extension from
opposing counsel. Based on their prior interactions, it is likely that an extension would have
been forthcoming. If Defendant’s counsel refused, Plaintiffs could have sought an extension
1

Gulley v. Orr, 905 F.2d 1383, 1386 (10th Cir. 1990).

2

from the Court. Similarly, while Defendant’s counsel tried to obtain an extension to file its
Reply, Defendant could have sought an extension from the Court. Instead of doing so, counsel
for both sides have wasted the Court’s time and their clients’ resources by litigating the Motions
to Strike. The Court reminds counsel that it has adopted the Utah Standards of Professionalism
and Civility and these standards should guide attorney conduct in proceedings before the Court. 2
Defendant’s second Motion to Strike seeks to strike the now-filed Affidavit of Christy
Borandi because it contains inadmissible statements and legal conclusions, as well as statements
not based on personal knowledge. Defendant further argues that the Affidavit has been
submitted in bad faith.
DUCivR 7-1 details how parties are to raise such evidentiary objections. Rule
7-1(b)(1)(B) provides that “[i]f evidence is offered in opposition to the motion, evidentiary
objections may be included in the reply memorandum.” Preferably, the objections are to be
included in the reply. 3 Importantly, the rule makes clear that “[m]otions to strike evidence as
inadmissible are no longer appropriate and should not be filed.” 4
Rather than simply deny Defendant’s Motion out of hand, which is the Court’s practice,
the Court will permit Defendant to file an amended Reply brief raising the evidentiary objections
it raised in its second Motion to Strike. Doing so will also allow Defendant the opportunity to
fully respond to all of the materials referenced in Plaintiffs’ Memorandum in Opposition.

2

DUCivR 83-1.1(g).

3

DUCivR 7-1(b)(1)(B).

4

Id.

3

It is therefore
ORDERED that Defendant’s Motions to Strike (Docket Nos. 42 and 46) are DENIED.
Defendant is directed to file an amended Reply brief by December 19, 2014.
DATED this 4th day of December, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

4