The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 67) DEFENDANTS' MOTION TO ALLOW ADDITIONAL WRITTEN DISCOVERY (Docket No. 55)
Currently pending before the Court are Defendants' (1) Motion for Summary Judgment (Docket No. 67) and (2) Motion to Allow Additional Written Discovery (Docket No. 55). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
On February 25, 2011, Defendants moved for summary judgment. See Defs.' Mot. for Summ. J. (Docket No. 36). Following oral argument, on August 22, 2011, the Court granted in part, and denied in part, Defendants' Motion for Summary Judgment. See 8/22/11 MDO (Docket No. 59). Relevant to both the procedural and substantive posture of the case now, the Court granted Defendants' Motion for Summary Judgment on Plaintiff's claim for (1) "lost compensation" damages, (2) damages for "loss on investment in CatRisk," (3) damages for "loss on investment in Physicians Billing and Support Services, Inc.," (4) damages for "loss on investment in Moore Support Services, Inc.," and (5) damages for "loss on accounting services." See id. at pp. 10-17; 20-21.
From the Court's perspective, by granting Defendants' Motion for Summary Judgment as to the damages sought by Plaintiff's damages expert, Thomas J. South, a question arose as to Plaintiff's ability to recover any damages relating to Plaintiff's remaining causes of action. If no damages could be obtained, the action logically ought to be dismissed in its entirety; on the other hand, if damages were available, the action would proceed forward. To help answer this question, the Court's August 22, 2011 Memorandum Decision and Order requested the parties to comment on the status of the action:
In light of this Memorandum Decision and Order, on or before August 30, 2011, the parties are to notify the Court concerning the status of the action -- specifically, whether Defendants' Motion for Summary Judgment resolves the claims raised in the underlying Complaint. Unless otherwise notified, the Court will vacate any pending deadlines and enter a corresponding judgment, consistent with this Memorandum Decision and Order.
What followed was disagreement between the parties about the resulting posture of the case and, further, their respective submissions to the Court were equivocal in addressing the Court's concerns. Specifically:
* On August 30, 2011, Plaintiff submitted his "Post-Summary Judgment Notice of Status of Matter." See Pl.'s Notice (Docket No. 60). There, Plaintiff argued that, following the Court's Memorandum Decision and Order, Plaintiff's claims for breach of contract and breach of implied covenant of good faith and fair dealing remain to be resolved at trial. See id. at p. 2. Additionally, Plaintiff asserted that Defendants' "Motion for Summary Judgment did not dispose of those claims, but only of certain claims for damages relating thereto . . . ." See id.*fn1
* Also on August 30, 2011, Defendants submitted their "Notification to Court of Status of Case." See Defs.' Notification (Docket No. 61). There, Defendants maintained that the Court's Memorandum Decision and Order "fully resolves the case and the Judgment should be entered in favor of the two defendants." See id. at p. 2.*fn2 As to available damages, Defendants argued that there can be none because (1) Plaintiff repeatedly deferred to his "damages expert" for any detail surrounding his damage claims;*fn3 and (2) the damages outlined by Plaintiff's damages expert, Mr. South, are unrecoverable by virtue of the Court's Memorandum Decision and Order. See id. at pp. 2-3 ("In October, some two months after his deposition, plaintiff designated Mr. South and Mr. South's exposition of the plaintiff's damages are all that the defendants and the Court have to go on in evaluating the damage claims of the plaintiff. All of the claims for damages outlined by Mr. South have been dismissed.").
* On September 13, 2011, Plaintiff submitted his "Supplement to Notice of Status of Matter." See Pl.'s Supp. to Notice (Docket No. 62). In it, Plaintiff took issue with Defendants' August 30, 2011 submission, stating that Defendants "incorrectly allege[ ] that the Plaintiff's claims against it are incapable of proof because there are allegedly no damages remaining for the Plaintiff to recover." See id. at p. 2. Plaintiff further argued that Defendants' Motion for Summary Judgment did not address Plaintiff's other claims, namely breach of contract and bad faith. See id. at p. 3 ("Instead, the Plaintiff's claims for breach of contract and for bad faith, as well as damages relating thereto, are conspicuously absent from the Defendants' Motion for Summary Judgment, and the Defendant may not rely on summary adjudication-by-implication in order to attempt to dispose of the Plaintiff's claims."). In other words, it appeared as though Plaintiff was arguing that damages -- separate from those identified by Mr. South and already addressed by this Court -- are available to Plaintiff as to Plaintiff's breach of contract and bad faith claims. See id. ("Far from having no damages claims at all, the damages to which the plaintiff is entitled are, as a matter of law, contract damages in the amount of all unpaid benefits due under the policy . . . . Second, the Plaintiff's 'bad faith' claim . . . also remains to be adjudicated, as the Defendants and their counsel again opted not to address this issue in their Motion for Summary Judgment.").
* On September 23, 2011, Defendants submitted their "Memorandum in Support of Defendants' Notification to Court of Status of Case" and, again, argued that the action should be dismissed in its entirety. See Mem. in Supp. of Defs.' Notification (Docket No. 65). While admitting that Hartford Casualty has not paid any benefits to CatRisk.com (the assignor), Defendants claimed that Plaintiff simply has not offered any proof of any damages other than those calculated by Mr. South in his expert report. See id. at p. 2 ("However, CatRisk.com had not, and has not, proven any recoverable benefits that would be due under the policy and therefore, there was, and is, nothing to pay. The Court has dismissed all of the claims for damages that Plaintiff's expert, Mr. South, postulated. Plaintiff admitted that Mr. South was his sole damage expert. The Plaintiff cannot at this point, having failed to provide any evidence of recoverable damages, claim that there are other damages which have not been disclosed." (Emphasis in original)). According to Defendants, absent damage, there can be no cause of action. See id. at p. 4 (citing Jones v. Talbut, 394 P.2d 316 (Idaho 1964)).
The sum of such submissions from the parties illustrated the quandary left before the Court following the Court's ruling on the original Motion for Summary Judgment, as to the issues that had been presented and argued to the Court. The parties' submissions did not persuade the Court that there had been resolution of the question of whether other damages (beyond those already identified by Mr. South) were available to Plaintiff on any claims that were not specifically dismissed by the Court's August 22, 2011 Memorandum Decision and Order. With all this in mind, the Court invited Defendants to, once again, move for summary judgment, based upon a discrete, updated record, detailing their arguments in favor of a complete resolution of the action in their favor. See 11/16/11 Notice, p. 5 (Docket No. 66) ("Therefore, while it may be viewed as inefficient given all that has transpired thus far, the Court requests that, if Defendants contend that Plaintiff is wholly incapable of recovering any amount of damages on any remaining causes of action, it so move for summary judgment in this limited respect. Only after such arguments are squarely before the Court can Plaintiff respond accordingly and, as such, position this Court to "settle the pond" on this issue and, perhaps, this action entirely.").
On December 2, 2011, Defendants filed a second Motion for Summary Judgment, arguing that "Plaintiff cannot show the existence of evidence to support damages, which is an essential element of his claims for breach of contract and breach of the covenant of good faith and fair dealing against Hartford Casualty Insurance Company."). See Defs.' Mot. for Summ. J. (Docket No. 67). ...