United States District Court, N.D. New York
CHELUS, HERDZIK LAW FIRM KATELYN E. DIEFFENDERFER, ESQ., THOMAS P. KAWALEC, ESQ., Buffalo, New York, Attorneys for Plaintiff and Counterclaim Defendant.
MIRANDA, SAMBURSKY LAW FIRM-MINEOLA OFFICE MICHAEL A. MIRANDA, ESQ., Mineola, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Presently pending is the motion of defendant Vermont Mutual Insurance Company ("defendant") seeking to strike plaintiff Hanover Insurance Company's ("plaintiff") complaint and dismiss the action. Dkt. Nos. 20, 22. Plaintiff opposes. Dkt. Nos. 21, 23. For the following reasons, the motion is denied.
On July 19, 2013, plaintiff commenced the present action against defendant over insurance coverage for a lawsuit involving residential lead-based hazards. Compl. (Dkt. No. 1). The Uniform Pretrial Scheduling Order ("scheduling order") filed October 24, 2013 directs that discovery be completed by March 31, 2014. Dkt. No. 13.
Plaintiff had served defendant with its discovery demands on January 28, 2014, which were due on or before February 28, 2014. Dkt. No. 21 at 1. On March 14, 2014, plaintiff requested from defendant the outstanding responses to be served by March 21, 2014. Id . Plaintiff contends that on March 21, 2014, it received an email from defendant containing discovery demands that were served on it for the first time. Id . In disagreement, defendant contends it had served plaintiff its demands for document production and interrogatories on March 19, 2014, to be responded to by April 25, 2014. Dkt. No. 19 at 1. Plaintiff posits that it would have been impossible to respond to these demands by April 25, 2014. Dkt. No. 21 at 1.
By letter dated March 28, 2014, both parties filed a joint request for an extension of the discovery deadline to May 15, 2014. Dkt. No. 16. The parties also requested extensions for expert witness disclosure, the filing of dispositive motion, and trial ready deadlines. Id . On April 9, 2014, the Court extended all deadlines, including the discovery deadline to May 2, 2014. Dkt. No. 17.
On April 21, 2014, plaintiff informed defendant that it would provide responses during the week of April 28, 2014. Dkt. Nos. 19 at 1, 21 at 2. Plaintiff explained that it experienced great difficulty in securing certified copies of the requested documents and delay in locating the underwriting file. Dkt. No. 21 at 2. By letter dated April 28, 2014, plaintiff informed the Court that it would be delayed in providing responses to defendant's discovery requests but did not expressly ask for an extension of the discovery deadline. Dkt. No. 18.
Plaintiff did not provide discovery responses by May 2, 2014. Dkt. No. 19 at 1. On May 6, 2014, defendant attempted to resolve the discovery dispute through email correspondences; however, plaintiff did not respond. Dkt. Nos. 19 at 2, 22 at 2.
By letter dated May 9, 2014, defendant filed a motion to compel the production of documents and sought an order directing plaintiff to waive any objections to the document requests due to plaintiff's delay. Dkt. No. 19. Defendant requested that the Court either order the production of requested documents and responses by a date certain or enter a self-executing order of preclusion of the claims. Id. at 2.
On May 15, 2014, defendant filed the pending motion, informing the Court that plaintiff did not respond to their discovery requests and requesting the Court to strike the complaint and dismiss the action. Dkt. No. 20.
By letter dated May 16, 2014, plaintiff opposed the motion. Dkt. No. 21. Plaintiff advised the Court that it was working to pull documents from storage units and has been conducting discovery in good faith. Id. at 2. Plaintiff asks the Court to grant its request for an extension through June 9, 2014 to respond to defendant's discovery requests. Id. at 3.
On May 20, 2014, defendant responded to plaintiff's May 16 letter and opposed the June 6, 2014 extension. Dkt. No. 22 at 1. Defendant expressed concern over deadlines for expert disclosure and the filing of dispositive motions. Id. at 3. On the same day, plaintiff's counsel informed the Court that they had received a large number of documents from plaintiff. Dkt. No. 23 at 1. Counsel had to review the materials to determine what is ...