United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
diversity action is an insurance coverage dispute between two
insurers of a mutual insured. Plaintiff asserts that
defendant must reimburse it for payments that plaintiff
previously made to the insured and payments that plaintiff
must pay to the insured under a judgment in another civil
lawsuit. Plaintiff bases its claim on the theory that
insurance coverage properly lies with defendant. Plaintiff
seeks a declaratory judgment under 28 U.S.C. § 2201(a)
and damages in the amount of $1, 875, 668.84. See
Doc. 71 at 12-13 (Pretrial Order Part 3(a)).
parties have filed cross motions for summary judgment. Docs.
72, 74. To support its summary judgment motion, defendant has
submitted a four-page Affidavit of Sally Combs. Doc. 73-2.
Ms. Combs identifies herself as defendant's Manager of
Third Party Administrator Oversight for North America.
Id. ¶ 1. Ms. Combs asserts that defendant has
authorized her to speak on its behalf for purposes of its
summary judgment motion. Id. ¶ 2. She also
asserts that she is familiar with the claims asserted against
the parties' mutual insured and describes her involvement
in the coverage determination. See Id. ¶ 4;
see also Id. generally.
has filed a Motion to Strike the Affidavit of Sally Combs.
Doc. 28. Plaintiff concedes that defendant identified Ms.
Combs in its Rule 26 initial disclosures. But, plaintiff
asserts, it never deposed Ms. Combs because defense counsel
misrepresented the extent of Ms. Combs' involvement in
the underlying insurance claims. Based on defense
counsel's statements that she was “not sure”
that Ms. Combs “will have any information that would be
helpful . . . because she wasn't involved in the
underlying claim, ” plaintiff believed that deposing
Ms. Combs was an unnecessary use of the parties' time and
resources. Doc. 80-2 at 1; see also Doc. 80-3
(stating, again, in a separate correspondence that Ms. Combs
“was not involved in the underlying claim, she is
simply my current client contact; I don't believe her
deposition would be productive”). And, so, plaintiff
never noticed Ms. Combs for deposition.
asserts that Ms. Comb's Affidavit contains statements
that contradict defense counsel's representations about
her lack of involvement in the matter. Plaintiff complains
that it was denied the opportunity to depose Ms. Combs about
her knowledge of the underlying insurance claim and to test
the validity and credibility of the statements made in her
Affidavit. Plaintiff thus asks the court to strike her
Affidavit under Fed.R.Civ.P. 12(f) because, plaintiff
contends, the Affidavit contains immaterial and impertinent
information. Alternatively, plaintiff asserts that the
Affidavit contains inadmissible hearsay and improper legal
conclusions that the court cannot consider on summary
judgment. And, as a final alternative argument, plaintiff
seeks leave to depose Ms. Combs before the court rules on
either of the parties' pending summary judgment motion.
opposes plaintiff's Motion to Strike. Doc. 82. Defendant
asserts that Rule 12(f) is not the proper procedural vehicle
for a request to strike the Affidavit. Defendant argues that
Rule 12(f) allows the court to strike “pleadings”
and an affidavit submitted in support of a motion is not a
pleading. See Fed. R. Civ. P. 12(f) (“The
court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” (emphasis added)); see
also Fed. R. Civ. P. 7(a) (listing the types of
pleadings that are allowed: a complaint; a third-party
complaint; answers to a complaint, a counterclaim, a
crossclaim, or a third-party complaint; and a reply to the
answer if the court orders one). Defendant also argues that
the information contained in the Affidavit is relevant and
material, and thus the court should not strike it under Rule
motion never disputes defense counsel's representations
about Ms. Combs' involvement. Instead, defendant takes
the position-as did its counsel-that Ms. Combs' handling
of the underlying claims was minimal. Defendant contends that
plaintiff's motion misunderstands the role of Ms. Combs.
But defendant also states that “defense counsel did not
intend to mislead plaintiff's counsel regarding Ms. Combs
or any information she might yield through testimony or via
affidavit or to do anything to impede [plaintiff] from
deposing her prior to the close of discovery.” Doc. 82
at 5. Defendant asks the court, should it concluded that
defense counsel's representations inflicted prejudice on
plaintiff, to postpone ruling on the summary judgment
motions. Id. Instead of striking Ms. Combs'
Affidavit, defendant promises to produce Ms. Combs for
deposition and asks the court to allow the parties to submit
supplemental summary judgment briefing to address any issues
presented by that deposition.
reviewing the summary judgment record and the materials
submitted supporting and opposing plaintiff's motion to
strike, the court concludes, in its discretion, that
plaintiff should have an opportunity to depose Ms. Combs
before the court decides the pending summary judgment
motions. Plaintiff asserts that it never deposed Ms. Combs
because it relied on defense counsel's representations
that she was not involved in handling the underlying
insurance claims. But, on summary judgment, defendant has
submitted an Affidavit in which Ms. Combs states that she is
familiar with the underlying insurance claims and describes
her involvement in the coverage determination. The court does
not want to discourage informal communications between
counsel that are intended to reduce the cost of litigating
disputes. But when those procedural communications produce a
genuine, good faith misunderstanding, the court should
support remediation that will not impair the substance of the
parties' claims and defenses. The court thus concludes
that plaintiff should have the opportunity to question Ms.
Combs about her knowledge of the facts in this case before
the court rules the dispositive motions.
court thus denies plaintiff's Motion to Strike the
Affidavit of Sally Combs. The court also vacates the June 6,
2017 trial date and establishes a supplemental briefing
THEREFORE ORDERED BY THE COURT THAT plaintiff's Motion to
Strike the Affidavit of Sally Combs (Doc. 78) is denied.
FURTHER ORDERED THAT the court will postpone ruling on the
pending summary judgment motions until after plaintiff has
deposed Ms. Combs and submitted supplemental briefing. The
court vacates the June 6, 2017 trial date.
FURTHER ORDERED THAT defendant must produce Ms. Combs for
deposition within 30 days of the date of this Order. To the
extent necessary, the parties may file supplemental summary
judgment briefing to address issues presented by Ms.
Combs' deposition. The parties must order an expedited
deposition transcript and must file their supplemental
summary judgment briefs within 14 days of receipt of that
transcript. The supplemental briefs may not exceed 10 pages,
unless the parties seek and obtain leave of court. The
parties must submit any responses to the supplemental briefs
within 14 days of the filing of the supplemental briefs.
Responses may not exceed 10 pages, unless the parties seek
and obtain leave of court. No replies are allowed unless the
parties seek and obtain leave of court.
the court directs counsel to communicate about a new date for
the trial. Within 14 days of this Order, the parties must
file a Joint Notice of Suggested Trial Dates. The proposed
trial date(s) shall be at least four months after the ...