TIBBETTS LUMBER CO., LLC

v.

AMERISURE INSURANCE COMPANY

Before the Court is Defendant’s Motion for Summary Judgment (Doc. 56), Plaintiff’s Motion for Leave to File a Surreply (Doc. 65) and Motion for Leave to File Supplemental Evidence (Doc. 77), as well as Plaintiff’s Motion to Amend the Case Management Report (Doc. 81). Upon review, Defendant’s Motion for Summary Judgment and the Plaintiff’s Motion to Amend the Case Management Report are denied without prejudice as premature. Federal Rule of Civil Procedure 56 does not expressly limit how early a party may file a motion for summary judgment. See 11 Moore’s Federal Practice – Civil § 56.60. A problem may arise, though, when a party files a motion for summary judgment so early in discovery that the plaintiff has not had the opportunity to collect or present evidence supporting the claim. See Jones v. City of Columbus, 120 F. 3d 248, 252–53 (11th Cir. 1997) (“The law in this circuit is clear: the party opposing a motion for summary judgment should be permitted an adequate opportunity to complete discovery prior to consideration of the motion.”). Here, Defendant’s motion for summary judgment was filed on September 9, 2020, while Plaintiff’s first motion to compel discovery (Doc. 47) and Defendant’s motion for a protective order and a stay of discovery (Doc. 50) were still pending. At the time, the governing Case Management and Scheduling Order set the discovery deadline as March 5, 2021. (Doc. 45). Defendant’s motion for summary judgment was thus filed when both parties had another six months to seek discovery and while the Plaintiff’s requests for discovery remained disputed. Since that time, the parties have secured an extension of deadlines with discovery now closing on July 5,

2021. (Doc. 75). As such, the motion for summary judgment is premature. This conclusion is further buttressed by the fact that Plaintiff has twice sought to supplement briefing and evidence to support its response in opposition and Defendant has filed a notice of supplemental authority in support of the motion. See (Docs. 65, 76 & 77).

The Court notes that in its reply in support of its motion for summary judgment, Defendant suggests that this Court should “entertain a renewed motion for summary judgment to prevent an unnecessary trial.” (Doc. 64 at 8). In this circuit, successive motions for summary judgment are disfavored. See Allstate Fin. Corp. v. Zimmerman, 296 F. 2d 797, 799 (5th Cir. 1961)1 (“[W]e certainly do not approve in general the piecemeal

Accordingly, it is ORDERED: (1) Defendant’s Motion for Summary Judgment is DENIED without prejudice. Defendant may renew its motion at a subsequent date in accordance with the procedures outlined in the Second Amended Case Management and Scheduling Order (Doc. 75) and applicable Local Rules. (2) Plaintiffs Motion for Leave to File Surreply (Doc. 65) and Motion for Leave to File Supplemental Evidence in Opposition to Defendant’s Motion for Summary Judgment (Doc. 77) are DENIED as moot. (3) Plaintiff's Motion to Amend the Case Management and Scheduling Order is DENIED without prejudice. Any motions to change the trial schedule may be filed after the close of discovery. (4) Because of limited judicial resources and given that the nature of this proceeding suggests that additional mediation might be of benefit to the parties and the Court, this case is hereby referred to the Court-Annexed Mediation program for a mediation conference in an attempt to achieve an equitable settlement of the issues. The parties shall conduct mediation by July 12, 2021. Lead Counsel is directed to file a Notice of Mediator Selection and Scheduling which: (a) identifies the selected mediator and includes complete address, telephone, and facsimile (if available) information, and (b) sets forth the time, date, and place of the scheduling for the mediation conference on of before April 14, 2021. ORDERED in Tampa, Florida, on March 22, 2021.

“footy Ie Jimball Mag Li yn Kimball Mizelle United States District Judge