Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00248-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELA WARE
) ) ) ) )
)

The American Legacy Foundation
Plaintiff,
v.

Civil Action No. 07-248 (SLR)

National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendant.

) ) ) ) )

Related Docket Nos. 31, 36, 37

PLAINTIFF AMERICAN LEGACY FOUNDATION'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR. IN THE ALTERNATIVE. STAY BRIEFING
On March 14,2008, the Foundation filed a motion for a modest continuance of oral
argument on National Union's Motion for Partial Dismissal to allow briefing on the Foundation's

Motion for Summary Judgment to be completed and argument on both motions to take place
simultaneously in the interests of

judicial economy and efficiency. Although National Union

does not contend that such a continuance would cause it any prejudice, rather than consenting it
filed a Motion to Strike Plaintiffs' Motion for Summary Judgment or, in the Alternative, to Stay Briefing, arguing that the Foundation's Motion for Summary Judgment was untimely and that

discovery is necessary before it can be considered. Neither assertion is meritorious. The
Foundation's motion is plainly timely under the Federal Rules of Civil Procedure, and the form

of order that National Union relies on in arguing to the contrary has not been entered in this case.

And although the Foundation does not believe that discovery is necessary in order to rule on its
motion for summary judgment, or that National Union's factual or legal assertions regarding the

motion have any merit, the proper place for National Union to argue these points is in an

1

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answering brief, not a motion to strike. Accordingly, the Foundation respectfully submits that

National Union's Motion to Strike Plaintiffs Motion for Summary Judgment or, in the
Alternative, Stay Briefing should be denied, and the Foundation's Motion to Continue should be
granted.

I. NATURE AND STAGE OF THE PROCEEDINGS
1. On May 4,2007, the Foundation filed this action seeking to recover fees and costs

it incurred in litigation with Lorillard Tobacco Company. No scheduling order has been entered
by this Court in this action.

2. On November 30,2007, National Union filed its Answer (D.L 15) and Motion for
Partial Dismissal of this action (D.L 16). National Union's Opening Brief

in Support ofIts

Motion for Partial Dismissal (the "Motion to Dismiss," D.L 17), and the Foundation's

Memorandum in Support ofIts Opposition to National Union's Motion for Partial Dismissal (the
"Opposition Brief," D.L 25) addressed, among other things, whether the allegations in the

Lorillard litigation are within the scope ofthe specific grant of coverage for "libel, slander and
defamation" in the policy, the standard applicable to insurers that have agreed to "advance"

defense costs, and the application of the "eight corners rule" to this case. (The "eight corners
rule" holds that a court considering an insurer's duty to defend should consider only the

underlying allegations and the terms ofthe policy at issue.)
3. On March 12, 2008, the Foundation filed its Motion for Summary Judgment

(D.L 31). Like the briefing on National Union's motion for partial dismissal, the Foundation's
Memorandum in Support of

its Motion for Summary Judgment (the "Motion for Summary

Judgment," D.L 32) addressed, among other things, whether the allegations in the Lorillard

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litigation are within the scope of the specific grant of coverage for "libel, slander and

defamation" in the policy, the standard applicable to insurers that have agreed to "advance"
defense costs, and the application of the "eight corners rule" to this case.

4. On March 14, 2008, based on the overlap between the issues to be adjudicated in
the Motion to Dismiss and its Motion for Summary Judgment, and in an effort to promote

judicial economy, the Foundation filed a Motion to Continue Oral Argument (D.L 36), seeking a
modest continuance of oral argument on National Union's Motion to Dismiss to allow briefing
on its Motion for Summary Judgment to be completed and the parties' motions to be heard
together.

5. Rather than consenting to the continuance, National Union filed a Motion to

Strike or in the Alternative to Delay Briefing on the Foundation's Motion for Summary

Judgment (the "Motion to Strike," D.L 37) on March 18,2008. National Union's Motion asserts
that it also constitutes an answering briefto the Foundation's motion to continue oral argument.

II. SUMMARY OF ARGUMENT
6. National Union's arguments provide no basis to strike or delay resolution of

the

Motion for Summary Judgment. Contrary to National Union's assertions, the Motion for
Summary Judgment is timely. National Union's remaining arguments are properly asserted in a

timely filed answering brief and are not a proper basis for a motion to strike. Consideration of
the Motion for Summary Judgment simultaneously with the Motion to Dismiss is an efficient and
economical means of expeditiously resolving issues in this case, and it is undisputed that
proceeding in this fashion would cause no prejudice to National Union.

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III. ARGUMENT
A. The Foundation's Motion For Summary Judgment Was Properly And Timely

Filed And National Union's Motion To Strike Is Improper.
7. The Foundation's Motion for Summary Judgment was properly and timely filed

pursuant to Rule 56(a) of

the Federal Rules of

Civil Procedure, which provides that "(a) party

seeking to recover upon a claim. .. may, at any time after the expiration of 20 days from the
commencement of

the action... move with or without supporting affidavits for a summary

judgment in the party's favor upon all or any part thereof."). Fed.R.Civ.P. 56(a).
Rule 56(a) has been entered by

8. No scheduling Order modifying the provisions of

this Court in this matter. The form of scheduling order relied on by National Union (see Motion
to Strike at il 13), therefore, has no bearing here.

9. Nevertheless, National Union would have this Court disregard its obligation to

rule on a timely filed Summary Judgment motion. Federal Rule ofCivI1 Procedure 56(c)
requires that "(summary) judgment sought shall be renderedforthwith if

the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving pary is

entitled to judgment as a matter oflaw." (Emphasis added.) See e.g., In re School Asbestos
Litigation, 977 F.2d 764, 795 (3d Cir. 1992) (finding that it was error for a court that had set no

trial date or specific deadline for filing summary judgment motions to dismiss a summary

judgment motion as untimely).
10. Moreover, National Union's Motion to Strike is itself not permitted under the
Federal Rules of Civil Procedure. Rule 12(f) provides that a party may move to strike "any

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" from a

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pleading. The Foundation's Motion for Summary Judgment is not a pleading under the Federal
Rules of

Civil Procedure; in any event, National Union's Motion to Strike does not (and could

not) allege that any ofthe material in the Motion for Summary Judgment is "an insuffcient
defense" or "redundant, immaterial, impertinent, or scandalous." The Motion to Strike should be
1 denied on this ground alone.

11. National Union's Motion to Strike asserts that it seeks to strike the Foundation's
properly filed Motion for Summary Judgment on the basis of efficiency, but the Motion to Strike
in fact seeks to delay full adjudication of this matter, to litigate overlapping issues seriatim,

rather than simultaneously, and to burden the parties with unnecessary or at best premature
discovery. This is clearly not efficient.

12. National Union also bases it Motion to Strike on its contention that there are
disputed issues of

material fact that require discovery. While the Foundation disagrees with
material fact, the proper place to

National Union's contention that there are genuine disputes of

address this issue is in an answering briefto the Foundation's motion for summary judgment, not

a motion to strike? Where there are no disputed issues of material fact, it is entirely appropriate
to resolve the legal issues in a case prior to any discovery. See Fed.R.Civ.P. 56(c); Reflectone,

Inc. v. Farrand Optical Co., Inc., 862 F.2d 841,844 (lIth Cir. 1989) (Rule 56 does not "require(J
that a party wait until discovery has taken place" to file a motion for summary judgment). To the

extent there are genuine disputes over material issues of fact, a summary judgment motion is stil
1 The fact that National Union also styles its motion as a motion to delay briefing does not change this result, since

National Union's request is to delay briefing indefinitely. 2 Similarly, to the extent that National Union contends that there are legal issues precluding the Foundation's

entitlement to summary judgment, the proper place to raise those issues is an answering brief rather than a motion to strike.

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appropriate to narrow the scope of discovery and trial to solely those issues, while allowing

summary resolution of issues as to which there are no genuine disputes of material fact. See
Rule 56( d) (providing that where partial summary judgment is appropriate, the court shall

specify the facts that are "without substantial controversy" and conduct future proceedings

accordingly). This narrowing of factual disputes also promotes efficiency and the preservation
of the resources of

this Court and the parties. By filing an affidavit pursuant to Rule 56(f) in

conjunction with its Motion to Strike, National Union implicitly recognizes that the proper

context in which to raise disputed issues of material fact is an answering brief to the Motion for
Summary Judgment, not a motion to strike.
13. National Union also asserts that this Court should strike the Foundation's Motion

for Summary Judgment because the Foundation did not "anticipate" National Union's objections

in its affirmative case. See Motion to Strike at il20. This is a novel view, to say the least. A
party is not obligated to articulate its adversary's objections to the party's motion; this is the

purpose of an answering brief. The language that National Union quotes is not to the contrary; it
merely states that a party must make its own affirmative arguments in its opening brief, rather
than holding them back for a reply to which the other party has no opportnity to respond. See

Wokas v. Dresser, 978 F. Supp. 839, 844 n.2 (N.D. Ind. 1997) ("(a party) is only required to raise

its own arguments; it is not required to anticipate (the other party's) arguments and reply to them
before the fact"). The remainder of National Union's arguments in favor of

its Motion to Strike

are non-meritorious, but, in any event, are properly raised (if at all) in an answering brief.

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B. Delaware Public Policy In Favor of Judicial Economy And Efficiency Supports

Hearing Argument On The Motion to Dismiss And The Motion For Summary Judgment At The Same Time.
14. As National Union admits, its Motion to Dismiss and the Foundation's Motion for

Summary Judgment overlap. See Motion to Dismiss at 6 (noting that the application of

the

"eight corners" rule is at issue in both parties' briefs). In addition to the "eight corners" rule,
these areas of overlap include, among other things, whether the allegations in the Lorillard

litigation are within the scope of the specific grant of coverage for "libel, slander and

defamation" in the policy and the standard applicable to insurers that have agreed to "advance"

defense costs. The interests of judicial economy and efficiency support resolving these issues
only once and at the same time. National Union suffers no prejudice from a modest continuance
of oral argument on its motion and has not contested the Foundation's assertion to that effect.

iv. CONCLUSION
15. National Union's Motion to Strike appears calculated solely to delay further this
Court's ultimate resolution of

its obligations to the Foundation and provides no proper basis to

strike or delay the Foundation's Motion for Summary Judgment. Accordingly, the Foundation
respectfully submits that this Court should deny the Motion to Strike and grant the Foundation's
Motion to Continue.

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Date: March 24, 2008

PAC

KI ST r Z~EHL & JONES LLP
l' i I

Laura Davis Jones (Bar No. 2436) Timothy P. Cairns (Bar No. 4228) 919 North Market Street, 17th Floor Wilmington, DE 19899-8705 (302) 652-4100 Facsimile: (302) 652-4400
and
Richard Shore

August J. Matteis, Jr

Kami E. Quinn GILBERT RANDOLPH LLP 1100 New York Avenue, NW Washington, DC 20005 (202) 772-2200

Attorneys for Plaintiff American Legacy Foundation

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IN THE UNED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWAR

THE AMERICAN LEGACY FOUNATION )

) )

v. )
I, Laura Davis Jones, hereby certify that on 24th day of copy of

Plaintiff, )
)
) ) )

CASE NO: 07-248 (SLR)

NATIONAL UNION FIR INSURCE COMPAN )

OF PITTSBURGH, PENNSYLVAN, )

Defendant )

CERTIFICATE OF SERVICE
March, 2008, I caused a

the following document to be served on the individuals on the attached service list in the

manner indicated thereon:

PLAINTIFF AMERICAN LEGACY FOUNDATION'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S MOTION FOR

SUMMARY JUDGMENT OR, IN THE ALTE AY BRIEFING

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American Legacy Foundation Service List
Document No. 130442

02 - Hand Delivery 01 -First Class
Hand Delivery Richards Layton & Finger, P.A. John A. Parkins, Jr. Chad M. Shandler Todd A. Coomes
One Rodney Square, P.O. Box 551

Wilmington, DE 19899
Hand Delivery F ox Rothschild, LLP Neal J. Levitsky, Esquire 919 N. Market Street, Suite 1300 Wilmington, DE 198014

First Class Mail
Kramon & Graham, P.A. Lee H. Ogburn, Esquire
One South Street, Suite 2600

Baltimore, MD 21202-3201