United States District Court, N.D. Oklahoma
(1) CENTRAL MUTUAL INSURANCE COMPANY as subrogee of DAVID RICH COMPANY, Plaintiff,
(1) BROAN-NUTONE, LLC, and (2) A.O. SMITH CORPORATION, Defendants.
OPINION AND ORDER
TERENCE C. KERN United States District Judge
the Court are Defendant A.O. Smith Corporation's
(“A.O. Smith”) Motion to Deem Unopposed Motion
for Summary Judgment and Unopposed Daubert Motion Confessed
(“Motion to Deem Confessed”) (Doc. 41) and
Plaintiff's combined Response in Opposition to Defendant
A.O. Smith Corporation's Motion to Deem Confessed
(“Opposition”) and Motion for Extension of Time
to Respond (“Motion for Extension”) (Doc. 42).
February 21, 2017, A.O. Smith filed a motion for summary
judgment (Doc. 38) and a motion to exclude testimony (Doc.
39) (collectively, the “Underlying Motions”).
Plaintiff failed to respond to the Underlying Motions by the
required date. On March 20, 2017, A.O. Smith filed its Motion
to Deem Confessed. On March 20, 2017, Plaintiff filed its
Opposition and Motion for Extension. On March 22, 2017, A.O.
Smith filed a reply in support of its Motion to Deem
Confessed (Doc. 43). On March 28, 2017, Plaintiff filed an
Unopposed Motion for Oral Argument on the Motion to Deem
Confessed and Motion for Extension (Doc. 44).
lead counsel, James B. Hamilton (“Hamilton”), is
admitted pro hac vice in this proceeding. Hiltgen
& Brewer, P.C., an Oklahoma law firm, is serving as local
counsel. Hamilton did not receive notice of electronic filing
of the Underlying Motions because he first became a
registered user of the Case Management and Electronic Case
Filing (“CM/ECF”) system in the Northern District
of Oklahoma on March 3, 2017, after the Underlying Motions
were filed. Hamilton was first alerted to the existence of
the Underlying Motions when he received notification through
CM/ECF of the filing of the Motion to Deem Confessed.
Plaintiff argues that A.O. Smith failed to serve the
Underlying Motions on Hamilton in accordance with the
Court's CM/ECF Administrative Manual, which states that
an “e-filer must manually
serve parties and/or attorneys who are not CM/ECF Users with
a copy of any document filed electronically in accordance
with the Federal Rules of Procedure and the Local
Rules.” (Pl.'s Opp. Ex. 6). Because Hamilton did
not receive service or notice of the filing of the Underlying
Motions, Plaintiff states that it “was prejudiced from
filing timely responses, ” (Pl.'s Opp. ¶ 12),
and requests leave to file responses to the Underlying
Motions within 10 days.
Smith argues that because the Underlying Motions were
properly served on Plaintiff's local counsel, Hamilton is
deemed to have received service pursuant to N.D. Okla. Civ.
R. 83.3(b), which provides that “[a]ny notice, pleading
or other paper may be served upon the local counsel with the
same effect as if personally served on the non-resident
attorney.” A.O. Smith also requests an award of
attorney fees and costs incurred pursuant to N.D. Okla. Civ.
N.D. Okla. Civ. R. 7.2(e), the Court may, in its discretion,
deem confessed any non-dispositive motion that is not timely
opposed. With respect to dispositive motions, under Local
Rule 7.2(f), the Court has discretion to either grant
additional time to respond to the motion or, upon motion, to
grant confession of judgment. Rule 7.2(f) also permits the
Court, in either event, to award “sanctions, including
but not limited to all attorney fees and costs incurred by
the moving party in connection with” the non-moving
party's failure to timely oppose the dispositive motion.
Court finds that service of the Underlying Motions on local
counsel via CM/ECF was effective service on Hamilton pursuant
to Local Rule 83.3(b). Although a party filing via CM/ECF is
required to manually serve “parties and/or
attorneys” who are not CM/ECF users, the same local
CM/ECF procedures specify that attorneys admitted to the bar
of this Court, including those admitted pro hac
vice, must register as CM/ECF users. (See
Pl.'s Opp. Ex. 6.) Therefore, the Court finds that
Plaintiff lacks a legitimate excuse for failing to timely
respond to the Underlying Motions and finds that an award of
fees and costs is proper as sanctions under Local Rule
interest of deciding cases on the merits and because
Plaintiff stands ready to respond to the Underlying Motions
in a timely manner, the Court in its discretion will permit
Plaintiff to file responses to the Underlying Motions no
later than 10 days from the date of this Order. While A.O.
Smith requests that the Court set any extension from the
original due date for Plaintiff's responses, the Court
finds that doing so would be impracticable.
Smith's Motion to Deem Confessed (Doc. 41) is DENIED;
Plaintiff's Motion for Extension (Doc. 42) is GRANTED;
and Plaintiff's Unopposed Motion for Oral Argument (Doc.
44) is DENIED.
Smith's request for attorney fees and costs under Local
Rule 7.2(f) is GRANTED. A.O. Smith is ORDERED to submit a
motion for attorney fees and costs in this regard ...