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LaFarge Corp. v. No.1 Contracting Corp.

May 19, 2008

LAFARGE CORPORATION., PLAINTIFF
v.
NO.1 CONTRACTING CORPORATION, ET AL., DEFENDANTS



The opinion of the court was delivered by: Magistrate Judge Blewitt

MEMORANDUM

I. Background

On August 20, 2007, Plaintiff LaFarge Corporation filed a Motion for Summary Judgment against Defendants No. 1 Contracting Corporation ("No. 1 Contracting Corp.") and Al Roman. (Doc. 59). A support Brief, a Statement of Material Facts ("SMF"), and Affidavits with Exhibits were filed on the same date. (Docs. 60-63). Plaintiff did not move for summary judgment as against the third Defendant in this case, namely, Defendant XL Specialty Insurance Co. ("XL Specialty").*fn1

On September 5, 2007, the Court approved a Stipulation which afforded Defendant XL Specialty until September 12, 2007, to serve its response to Plaintiff's Motion for Summary Judgment against Defendants No. 1 Contracting Corporation and Al Roman. The Stipulation also afforded Plaintiff until September 18, 2007, to file its reply brief in support of its Summary Judgment Motion. (Doc. 66). Subsequently, on October 5, 2007, Plaintiff and Defendant XL Specialty entered into a Stipulation which was approved by the Court, and indicated that Defendant XL Specialty would not oppose Plaintiff's pending Summary Judgment Motion against the Defendants No. 1 Contracting Corporation and Al Roman, and that it would not oppose the entry of a final judgment as against Defendants No. 1 Contracting Corporation and Al Roman. (Doc. 70). However, since Defendants No. 1 Contracting Corporation and Al Roman, both of whom were represented by the same counsel*fn2 , had not filed their responses to Plaintiff's Motion for Summary Judgment, the Court issued an Order on October 3, 2007 (Doc. 68), stating as follows:

Further, neither Defendants No. 1 Contracting Corporation nor Al Roman have filed their opposition briefs to Plaintiff's Motion for Summary Judgment, which were to have been filed by September 6, 2007.

We shall give Defendants No. 1 Contracting Corp. and Al Roman, who are both represented by the same counsel, ten (10) additional days to file their opposition briefs to Plaintiff's Summary Judgment Motion. Failure of these Defendants to file their briefs will be deemed as their non-opposition to Plaintiff's Summary Judgment Motion under Local Rule 7.6, M.D. Pa. Notwithstanding the Court's October 3, 2007 Order (Doc. 68), in which the Court, sua sponte, gave Defendants more time, Defendants No. 1 Contracting Corporation and Al Roman did not file their opposition briefs to Plaintiff's Motion for Summary Judgment. Nor did these Defendants request a further extension of time to file their briefs. Nonetheless, the Court gave these Defendants an additional eight days to file their briefs. Defendants No. 1 Contracting Corporation and Al Roman had more than ample time within which to file their opposition briefs to Plaintiff's Summary Judgment Motion. These Defendants never notified the Court that they concurred with Plaintiff's Summary Judgment Motion or that they opposed it. Therefore, the Court deemed Defendants No. 1 Contracting Corporation and Al Roman as not opposing Plaintiff's Summary Judgment Motion pursuant to Local Rule 7.6, M.D. Pa.

The Court also found merit to Plaintiff's Summary Judgment Motion since its undisputed evidence showed that Plaintiff provided Defendant No. 1 Contracting Corporation with the cement and that Defendant Al Roman guaranteed payment for it, that Plaintiff made demand for full payment, and Defendants have not paid Plaintiff for the cement. The Court found Plaintiff's undisputed evidence showed that both Defendants were liable to Plaintiff in the principal amount of $477,527.88, plus financing charges, attorney's fees and costs. The Court found that, based on Plaintiff's undisputed evidence, Plaintiff was entitled to the granting of its Summary Judgment Motion and to the entry of Judgment in its favor and against Defendants No. 1 Contracting Corporation and Al Roman in the stated amount.

On October 25, 2007, the Court issued an Order and Judgment (Doc. 71) and directed as follows:

[T]hat upon consideration of the Motion for Summary Judgment of Plaintiff Lafarge Corporation against Defendants No. 1 Contracting Corporation and Al Roman (Doc. 59), no answer or brief being filed in opposition thereto by said Defendants, IT IS HEREBY ORDERED THAT:

1. Plaintiff's Summary Judgment Motion (Doc. 59) is GRANTED.

2. Judgment is entered in favor of Plaintiff Lafarge Corporation and against Defendants No. 1 Contracting Corporation and Al Roman in the amount of $477,527.88, together with all finance charges that have accrued thereon and the attorneys' fees, costs and disbursements incurred by Plaintiff Lafarge Corporation herein.*fn3

Since the Court has entered Judgment in favor of Plaintiff Lafarge Corporation and against Defendants No. 1 Contracting Corporation and Al Roman, only Defendant XL Specialty Ins. Co. remains in this case. During a May 7, 2008 telephonic conference, the Court directed counsel for Plaintiff to advise the Court in three weeks as to how Plaintiff was going to proceed with respect to the last phase of this case and if a telephone conference with the Court was required.

Presently pending before the Court are two Motions. First, the Plaintiff's February 15, 2008 Motion for Sanctions against Attorney Santora, Bresset & Santora, LLC ("Defendants' Counsel"), and Defendants No. 1 Contracting Corp. and Roman pursuant to Rule 11 and 28 U.S.C. §1927 as well as the inherent power of the Court. (Doc. 79). Second, the Motion of Attorney Santora and Bresset & Santora, LLC to file their Answer to Plaintiff's Motion for Sanctions Out of Time. (Doc. 90).*fn4

II. Discussion

Initially, the Court finds that since Defendants No. 1 Contracting Corp. and Roman did not file any opposition brief to Plaintiff's Motion for Sanctions filed pursuant to Rule 11 and pursuant to 28 U.S.C. § 1927, as well as pursuant to the Court's inherent power (Doc.79), and since the stated two Defendants did not request an extension of time to do so, we shall deem both of these Defendants as not opposing Plaintiff's instant Motion as against them under Local Rule 7.6, M.D. Pa. See Salkeld v. Tennis, 2007 WL 2682994, * 1 (3d Cir. 2007)(Non-Precedential) (Third Circuit Court found no error with District Court's decision of deeming Plaintiff inmate's motion as withdrawn for failure to comply with M.D. Pa. Local Rule 7.5 requiring the timely filing of a supporting brief).*fn5 Once again Defendants No. 1 Contracting Corp. and Roman had more than ample time to respond to Plaintiff's Motion and failed to do so. Moreover, as stated, neither Defendant No. 1 Contracting Corp. or Defendant Roman requested an extension of time from the Court to file an opposition brief. Defendants No. 1 Contracting Corp. and Roman have not explained why they did not file a response to Plaintiff's Motion or give any indication to this Court that they wished to oppose it. Therefore, as stated, Defendants No. 1 Contracting Corp. and Roman are deemed as not opposing Plaintiff's Motion for Sanctions against them, and Plaintiff's Motion will be granted as to these two Defendants.

Plaintiff attached its Brief in support of its Motion for Sanctions along with the Affidavit of Plaintiff's Counsel and Exhibits (Exs. A-E) to its Motion. (Docs. 79, 79-2, 79-3-79-7, and 79-8). Thus, Plaintiff's Motion was properly supported by its Brief as well as evidence. Defendants No. 1 Contracting Corp. and Roman were served with Plaintiff's filings through their counsel of record, namely Attorney Santora of Bresset & Santora, LLC. (Doc. 80).

On March 3, 2008, Respondents Attorney Santora and Bresset & Santora, LLC, through their counsel, filed a timely Motion for an Extension of Time to file their Response to Plaintiff's Motion for Sanctions. (Doc. 83). On March 5, 2008, the Court granted the Motion for an Extension of Time of Attorney Santora and Bresset & Santora, LLC, and initially afforded them an additional 45 days to file their Response. (Doc. 84). However, since Plaintiff objected to the length of the extension of time granted to Attorney Santora and Bresset & Santora, LLC, the Court vacated its March 5, 2008 Order (Doc. 84) and entered a subsequent Order allowing Plaintiff to file its opposition to the stated Motion for Extension of Time of Defendants' Counsel. (Doc. 85). Plaintiff filed its opposition to Defendants' counsel's Motion for an Extension of Time on March 7, 2008. (Doc. 86). Then, on March 10, 2008, the Court issued an Order in which it granted in part Defendants' Counsel's Motion for an Extension of Time, and it directed Attorney Santora and Bresset & Santora, LLC to file their opposition brief to Plaintiff's Motion for Sanctions within thirty (30) days, i.e. by April 9, 2008. (Doc. 87).

Despite the Court's granting of the Motion for Extension of Time of Attorney Santora and Bresset & Santora, LLC, and giving them additional time until April 9, 2008 to file their Response to Plaintiff's Motion for Sanctions, they failed, without any explanation, to file their Response. Nor did Defendants' Counsel request a further extension of time to file their opposition brief. Thus, on April 16, 2008, the Court issued an Order scheduling a telephonic status conference for May 7, 2008, to determine, in part, the status of Plaintiff's Motion for Sanctions. (Doc. 88).

The Court essentially gave Defendants' Counsel additional time to file their Response to Plaintiff's Motion for Sanctions nunc pro tunc or to make a nunc pro tunc motion for a second extension of time. Defendants' Counsel did not file any document until the day before the telephone conference. Namely, on May 6, 2008, they filed an untimely Answer to Plaintiff's Motion for Sanctions and an Affidavit of Attorney Santora in Response to Plaintiff Counsel's Affidavit (Doc. 89). Defendants' Counsel also filed a Motion to file their Answer to Plaintiff's Motion for Sanctions Out of Time, with attached exhibits. (Doc. 90).

On May 7, 2008, the Court conducted a telephonic status conference with Counsel for Plaintiff and Defendants' Counsel, as well as counsel for Santora and Bresset & Santora, LLC. After considering the filings of the parties and hearing from counsel, the Court does not find any good cause which would entitle Defendants' Counsel to file their Answer to Plaintiff's Motion for Sanctions out of time. The Court will deny Defendants' Counsel's Motion to file their Answer to Plaintiff's Motion for Sanctions Out of Time. (Doc. 90). Defendants' Counsel failed to act in a timely manner and did not even file their Motion to file their Answer to Plaintiff's Motion for Sanctions Out of Time (Doc. 90) until almost one month after their Answer was due (i.e. April 9, 2008 through May 6, 2008). Defendants' Counsel did not advise the Court during this almost one month time period as to any reason for their delay in responding to Plaintiff's Motion for Sanctions.

Further, even if the Court did grant the Defendants' Counsel's Motion to file their Answer to Plaintiff's Motion for Sanctions Out of Time, the Court does not find the proffered reasons of Defendants' Counsel satisfactorily explains their failure to act, i.e. they were waiting to obtain a response from their liability insurance carrier as to whether it would provide them coverage and defend them in this matter. Specifically, Defendants' Counsel state in their Doc. 90 Motion that their delay in this case was because their insurance carrier delayed its response to them about coverage and because of their legitimate belief that they are entitled to insurance coverage and a defense by their insurer. (Doc. 90, ¶ 9.). They state that they did not want to jeopardize their possible coverage by acting without permission of their insurance carrier. (Id.). Defendants' Counsel could have certainly filed another motion for extension of time to file their Response to Plaintiff's Motion for Sanctions explaining to the Court their reason for their delay without jeopardizing any possible coverage by their insurance carrier.

Moreover, the Court fails to see why Defendants' Counsel needed a response from their insurance carrier to respond to Plaintiff's Motion for Sanctions. Any Response by Defendants' Counsel could have been amended if their insurance carrier requested changes in it. As stated, Defendants' Counsel could have simply filed a timely request for another extension of time and could have explained to the Court the reason for their delay. However, Defendants' Counsel did not take any timely action. Thus, the Court finds that Defendants' Counsel should have simply filed a timely request for a second extension of time to file their Response to Plaintiff's Motion for Sanctions.

Moreover, Defendants' Counsel state (Doc. 90, ¶ 7.) that they were advised by letter dated April 21, 2008, from their insurance carrier that no coverage would be given to them in this case.*fn6 Even if they received this letter a few days later in the mail, they should have still been able to advise this Court as to the delay with their Response to Plaintiff's Motion for Sanctions well before May 6, 2008. Defendants' Counsel offer no explanation as to why they waited another thirteen (13) days after they were notified by their insurance carrier that it would not provide them coverage to file their present Doc. 90 Motion.*fn7

Nor does the Court find any merit to the request of Defendants' Counsel to stay Plaintiff's Motion for Sanctions until their recently filed (May 6, 2008) Declaratory Judgment action against their insurance carrier is decided by the Court. While Defendants' Counsel attached their proposed Declaratory Judgment Complaint against their insurance carrier to their nunc pro tunc Motion (Doc. 90), the Court finds no valid reason to delay ruling on Plaintiff's Motion for Sanctions until some unknown time in the future after the Declaratory Judgment Complaint is decided by the Court. Further, the Court ...


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