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Continental Casualty Co. v. St. Paul Surplus Lines Insurance Co.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 5, 2010

CONTINENTAL CASUALTY COMPANY, PLAINTIFF,
v.
ST. PAUL SURPLUS LINES INSURANCE COMPANY; AND DOES 1 THROUGH 10, INCLUSIVE DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Presently before the Court is an Ex Parte Application filed by Defendant St. Paul Surplus Lines Insurance Company ("St. Paul") for an order approving briefing submitted by St. Paul in conjunction with the Motions for Summary Judgment (ECF Nos. 100 and 109) presently scheduled for hearing on December 2, 2010.

St. Paul's application indicates that counsel for Plaintiff Continental Casualty Company ("Continental") did not notify St. Paul that its briefing had exceeded the page limitations set forth in the Court's Pretrial Status Scheduling Order until October 22, 2010, one day after briefing had been completed on the two motions in question. The Court's own examination of Continental's Opposition and Reply papers indicate that Continental made no reference to St. Paul's papers having violated the Scheduling Order. Nor did Continental indicate in any of its briefing that it was prevented from adequately addressing the issues raised by St. Paul within its own page limitations.

Continental nonetheless, in Opposition to St. Paul's ex parte request, now argues that St. Paul's papers should either be stricken in their entirety, or stricken to the extent they exceeded the Court's page limitation. In the alternative, Continental asks that it be permitted to submit another thirty pages of briefing despite the fact it never indicated previously that St. Paul's overlength briefing precluded it from fully responding to the substance of St. Paul's argument.

St. Paul, for its part, admits that it inadvertently failed to consult the terms of the Court's Scheduling Order after noting that the Court's Local Rules themselves contained no page limitation. It asks for leave to file its papers as submitted, claiming that the complexity of the issues, which involve the interpretation of three different insurance policies, make extension of the applicable page limitations necessary.

While the Court admonishes St. Paul's counsel for failing to read and follow the terms of the Scheduling Order in this case, and strongly advises it to scrupulously do so in the future, it will nonetheless permit St. Paul's briefing to stand as submitted, because it concludes that St. Paul has demonstrated good cause for its request to exceed the applicable page limitations.

Under the circumstances, the Court rejects Continental's after-the-fact attempt to hold St. Paul to those page limitations, to strike St. Paul's papers, and/or to permit an additional round of briefing. The briefings themselves were the vehicle in which to make those arguments, and Continental did not even raise the issue until after briefing was concluded and after St. Paul had no timely opportunity to rectify its admitted error. The Court declines to reward Continental's apparent strategy in that regard.

Consequently, for the reasons stated above, St. Paul's Ex Parte Application (ECF No. 119) is GRANTED.

IT IS SO ORDERED.

20101105

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