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Star Insurance Co. v. Iron Horse Tools, Inc.

United States District Court, D. Montana, Billings Division

March 19, 2018

STAR INSURANCE COMPANY, Plaintiff,
v.
IRON HORSE TOOLS, INC. and GENERAL ELECTRIC COMPANY, d/b/a GE LIGHTING, Defendants.

          ORDER

          Susan P. Watters United States District Court Judge.

         Before 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).

         I. Standard of review

         General 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).

         II. Background

         General 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.

         III. Discussion

         Iron 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.

         General 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.

         General 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.

         A. Iron Horse's reply brief was improper

         The 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.

         B. The Foley affidavit was mostly proper

         The 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 ...


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