United States District Court, D. Montana, Billings Division
P. Watters United States District Court Judge.
the Court are United States Magistrate Judge Timothy
Cavan's findings and recommendations filed February 7,
2018. (Doc. 51). Judge Cavan recommends this Court deny
General Electric's motion for summary judgment (Doc. 28),
grant Star Insurance's motion to strike the reply brief
of Iron Horse (Doc. 40), and grant in part and deny in part
General Electric's motion to strike the affidavit of
Michael J. Foley (Doc. 43).
Standard of review
Electric and Iron Horse filed timely objections to the
findings and recommendations. (Docs. 52 and 53). General
Electric and Iron Horse are entitled to de novo review of
those portions of Judge Cavan's findings and
recommendations to which they properly object. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b)(3).
Electric and Iron Horse object to Judge Cavan's
conclusion that disputed facts prevent summary judgment as a
matter of law, but do not object to Judge Cavan's
background section. Judge Cavan's background section is
adopted in full.
Horse argues its reply brief should have been permitted
because it properly joined General Electric's motion for
summary judgment and was therefore a moving party entitled to
a reply brief.
Electric argues its motion to strike the Foley affidavit
should have been granted in full because the affidavit went
beyond the scope of Foley's disclosed expert opinion.
Electric and Iron Horse argue they should have been granted
summary judgment because Star Insurance has failed to
introduce facts showing a General Electric halogen bulb was
used in the fixture in question.
Iron Horse's reply brief was improper
Court has read Star Insurance's motion to strike Iron
Horse's reply brief, Iron Horse's response, Star
Insurance's reply, Judge Cavan's recommendation that
the motion be granted, and Iron Horse's objection to
Judge Cavan's recommendation. The Court agrees with Judge
Cavan's reasoning, adopts it in full, and overrules Iron
Horse's objection. Star Insurance's motion to strike
Iron Horse's reply brief is granted.
The Foley affidavit was mostly proper
Court has read General Electric's motion to strike the
Foley affidavit, Star Insurance's response, General
Electric's reply, Judge Cavan's recommendation that
the motion be granted in part and denied in part, and General
Electric's objection to Judge Cavan's recommendation.
The Court agrees with Judge Cavan's reasoning, adopts it
in full, and overrules General Electric's objection. The
Court adds two things. First, a party is allowed to submit
affidavits to oppose summary judgment. Fed.R.Civ.P.
56(c)(1)(A). Second, it is not unusual for a party to use an
expert's pretrial sworn statement to support or oppose a
motion for a summary judgment. Generally, the statement comes
in the form of deposition testimony taken during discovery.
The Court is unaware if Foley was deposed in this case.
Regardless, the critical question is whether the statement
impermissibly goes beyond the scope of the expert's
disclosed opinion. Here, as reasoned by Judge Cavan,
paragraph 18 of the Foley affidavit went beyond the scope of