The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HOMESITE INS. CO. OF THE : Civil No. 1:22-CV-1664
MIDWEST, :
:
Plaintiff : (Judge Conner)
:
v. :
:
OMAR EWIDEH, et al., : (Magistrate Judge Carlson)
:
Defendants :
MEMORANDUM ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This case is a declaratory judgment action brought by Homesite Insurance
Company of the Midwest (“Homesite”) against two of its insureds, Omar Ewideh
and Nivertiti Geaith. (Doc. 1). In this lawsuit Homesite seeks a determination of
whether it has fully discharged its legal responsibilities under its homeowner
insurance policy with the defendants. According to Homesite the insureds’ home
suffered water leak damage on two separate occasions, and experienced mold
damage which was covered on Homesite’s policy. Homesite alleges that it paid the
defendants more than $294,000 as reimbursement on these claims pursuant to the
terms of this homeowner policy. (Id., ¶¶ 1-56).
Notwithstanding these payments, Homesite alleges that the defendants have
filed additional claims against its policy but has violated that policy by refusing to
cooperate in the investigation of these additional claims; refusing to permit
inspection of the property; failing to protect the property; and failing to properly
document their claimed losses. (Id., ¶¶ 57-111). Homesite also asserts that the
defendants have made false statements and concealed material facts from the
plaintiff in the course of its investigation of these claims in violation of the
homeowner policy. (Id., ¶¶ 112-24). Cast against the backdrop of these factual
averments Homesite seeks a declaratory judgment that it has properly and
adequately adjusted the defendants’ claims under this homeowner insurance policy.
(Id., ¶¶ 125-29).
The parties are embroiled in a contentious course of litigation and discovery
which has delayed merits consideration of this case. The cause of much of this
unconscionable delay has been the defendants, who have indulged in an improper
and paradoxical course in this litigation, professing to seeks a prompt resolution of
this lawsuit while constantly delaying proceedings through frivolous filings, failures
to abide by court-ordered deadlines, and repeated motions to stay or delay the legal
process. Moreover, the way the defendants have chosen to conduct discovery is
deeply troubling in one other respect. Ideally the discovery process should entail a
mutual and cooperative search for the truth. However, the defendants have
transmogrified discovery into some sort of cynical asymmetrical game, where they
ignore court orders, and evade their discovery responsibilities, while demanding
unfairly favorable treatment from the courts and opposing parties.
So it is here. The defendants have filed two discovery motions: (1) a motion
to quash a subpoena served upon Penn State, seeking information regarding Mr.
Ewideh; (Doc. 124), and (2) a motion to compel the scheduling of depositions by the
plaintiffs even though the defendants have refused to sit for a court ordered
deposition themselves. (Doc. 133). The defendants’ motion to quash is
unaccompanied by any brief explaining the legal basis for the motion. The failure to
file a brief in support of this motion violates the Rules of this Court which provide
that:
Within fourteen (14) days after the filing of any motion, the party filing
the motion shall file a brief in support of the motion. If the motion seeks
a protective order, a supporting brief shall be filed with the motion. If a
supporting brief is not filed within the time provided in this rule the
motion shall be deemed to be withdrawn.
L.R. 7.5.
In this case Ewideh and Geaith have violated Local Rule 7.5 by failing to file
a brief in support of this motion. This failure is particularly troubling since the
defendants were specifically ordered to file a brief but have chosen to ignore the
court’s order. (Doc. 126 at 4-5). We cannot reward this misbehavior. On these facts
we will deem the motion, which is not supported by a brief, to be withdrawn. See,
e.g., Salkeld v. Tennis, 248 F. App'x 341 (3d Cir.2007) (affirming dismissal of
motion under Local Rule 7.5); Booze v. Wetzel, 1:12-CV-1307, 2012 WL 6137561
(M.D. Pa. Nov. 16, 2012) report and recommendation adopted, 1:CV-12-1307, 2012
WL 6138315 (M.D. Pa. Dec. 11, 2012); Breslin v. Dickinson Twp., 1:09BCVB1396,
2011 WL 1577840 (M.D.Pa. Apr.26, 2011) Prinkey v. Tennis, No. 09B52, 2010 WL
4683757 (M.D.Pa. Nov.10, 2010) (dismissal under Local Rule 7.5); Griffin v.
Lackawanna County Prison Board, No. 07B1683, 2008 WL 4533685 (M.D.Pa.Oct.6,
2008) (dismissal under Local Rule 7.6).
In addition, the defendants have filed a motion to compel the plaintiff to
schedule various depositions. (Doc. 133). There is an irony, albeit perhaps
unintended irony, to this motion since the defendants sought this relief on June 29,
2023, the day after they failed to appear for their own court-ordered depositions. In
any event the plaintiff has filed a response in opposition to this motion which
thoroughly documents their efforts to engage in reasonable deposition scheduling
with Ewideh and Geaith, efforts that were consistently rebuffed by the defendants.
Therefore, this motion will be DENIED as well.
Having addressed these pending discovery motions, we note that there are
other potentially dispositive motions pending in this case. We also note that our
broad discretion over discovery matters extends to decisions under Rule 26 relating
to the issuance of protective orders limiting and regulating the timing of discovery.
Indeed, it is undisputed that: “ ‘[t]he grant and nature of [a protective order] is
singularly within the discretion of the district court and may be reversed only on a
clear showing of abuse of discretion.’” Dove v. Atlantic Capital Corp., 963 F.2d 15,
19 (2d Cir. 1992) (quoting Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973)
(citation omitted)). This discretion is guided, however, by certain basic principles.
One of these cardinal principles governing the exercise of discretion in this field is
that the district court may properly defer or delay discovery while it considers a
potentially dispositive pretrial motion. See, e.g., James v. York County Police Dep’t,
160 F.App’x 126, 136 (3d Cir. 2005); Nolan v. U.S. Dep’t of Justice, 973 F.2d
843,849 (10th Cir. 1992); Johnson v. New York Univ. Sch. of Ed., 205 F.R.D. 433,
434 (S.D.N.Y. 2002). In this case there pending, and potentially dispositive motions
before the court. Given these pending motions, in the exercise of our discretion we
will stay discovery without prejudice to the rescheduling of discovery, if necessary,
once the these potentially dispositive motions are resolved.
Accordingly, for the foregoing reasons, the defendants’ motions to quash and
to compel, (Docs. 124. 133) are DENIED and further discovery is STAYED pending
resolution of the outstanding, and potentially dispositive motions in this case.
So ordered this 11th day of July 2023.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge