Ncmic Ins. Co. v. Smith

375 F.Supp.3d 831

NCMIC INSURANCE CO., Plaintiff,

v.Ryan D. SMITH, D.C., et al., Defendants.

Civil Action 2:18-cv-533

United States District Court, S.D. Ohio, Eastern Division.

Signed March 21, 2019

Victoria Lynne Vance, Tucker Ellis LLP, Cleveland, OH, for Plaintiff.

John Manuel Gonzales, The Behal Law Group LLC, David I. Shroyer, Mollie Slater, Colley, Shroyer & Abraham Co. LPA, Columbus, OH, Alexander Jacob Durst, Croskery Law Offices, Cincinnati, OH, for Defendants.

OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court for consideration of Defendant Jane Doe's ("Defendant Doe") Motion to Dismiss (ECF No. 8 ); Plaintiff NCMIC Insurance Company's ("Plaintiff") Memorandum in Opposition (ECF No. 9 ); Defendant Doe's Reply Brief (ECF No. 13 ); Plaintiffs Motion for Leave to File Sur-reply (ECF No. 14 ); Plaintiff's Amended Motion for Leave to File Sur-reply (ECF No. 15 ); Defendant Doe's Motion to Strike or Memorandum in Opposition to Plaintiff's Motion for Leave to File Sur-reply (ECF No. 17 ); Plaintiff's Motion to Strike Alexander J. Durst's Affidavit in Support of Defendant Doe's Motion to Dismiss (ECF No. 33 ); Defendant Doe's Memorandum in Opposition to Plaintiff's Motion to Strike the Affidavit (ECF No. 37 ); and Plaintiff's Reply (ECF No. 39 ).

For the reasons that follow, Plaintiff's Amended Motion for Leave to File Sur-reply is GRANTED (ECF No. 15 ); Plaintiff's Motion for Leave to File Sur-reply is DISMISSED AS MOOT (ECF No. 14 ); Defendant Doe's Motion to Strike Plaintiff's Sur-reply is DENIED (ECF No. 17 ), Defendants' Motion to Dismiss or Stay Proceedings is DENIED (ECF No. 8 ), and Plaintiff's Motion to Strike Alexander J. Durst's Affidavit in Support of Defendant Doe's Motion to Dismiss is DISMISSED AS MOOT (ECF No. 33 ).

I.

A. Factual Background

Plaintiff is an Iowa insurance corporation, with its principal place of business in Clive, Iowa. (Pl. 's Compl. ¶ 2, ECF No. 1 ). From 2001 to 2018, Plaintiff issued a series of professional liability insurance policies to Defendant Ryan D. Smith ("Defendant Smith"). (Id. ¶ 4). Defendant Smith is a resident of Delaware County, Ohio, with a chiropractic practice located in Franklin County, Ohio. (Id. ¶ 5). Defendant Smith formed Synergy Clinic, a for-profit limited liability company registered in Ohio, for the purpose of running his chiropractic business. (Id. ¶ 6). At the time the relevant facts arose, Defendant Smith was covered by Plaintiff's Professional Liability Insurance Policy ("the Policy"), number MP00923418, for a policy period from October 3, 2016 to October 3, 2017. (Id. ¶ 33).

The present case arises from two underlying actions. Defendant Doe, a named plaintiff and representative party in Jam Doe, et al. v. Smith, et al. , 18-CV-003487 ("Doe Lawsuit") is an Ohio resident and a former patient of Defendant Smith. (Id. ¶ 8). On April 25, 2018, Defendant Doe, on behalf of herself and others, filed suit against Defendant Smith alleging assault, battery, and sexual misconduct. (Id. ¶ 14; Exhibit B). On May 7, 2018, Defendant Doe filed an Amended Class Action Complaint in the Doe Lawsuit to add Synergy Clinic as a named defendant. (Id. ¶ 15; Exhibit C).

In her Amended Complaint, Defendant Doe alleged that Defendant Smith "engaged in a pattern of deplorable and illegal behavior towards [Jane Doe] and over 40 other female patients" and "sexually assaulted patients." (Id. ¶ 16) (citing Exhibit C). Specifically, Defendant Doe claimed that at treatment sessions between May 2017 and June 2017, Defendant Smith touched her breasts and "positioned [her] hand behind her back at waist level ... and holding [her] arm firmly in place, pressed his genitals into [her] hands." (Id. ¶ 18) (citing Exhibit C). Defendant further claimed that Defendant Smith once required her to wear a medical gown so that he could "manipulate the gown to expose both of her breasts." (Id. ) (citing Exhibit C).

Defendant Doe asserted that "[a]s a result of 47 women coming forward as of April 12, 2018, Smith has (as of that same date) been criminally charged with 66 counts of gross sexual imposition." (Id. ¶ 20) (citing Exhibit C). The putative class members brought the following allegations against Defendant Smith: (1) assault, (2) battery, (3) medical negligence/chiropractic malpractice, (4) failure to obtain informed consent, (5) negligent invasion of privacy, (6) false imprisonment, and (7) intentional infliction of emotional distress. (Exhibit C).

Defendant Susanne Horner ("Defendant Horner"), a named plaintiff in Susanne Horner v. Ryan D. Smith, D.C., et al. , 18-CV-003645 ("Horner Lawsuit"), is also an Ohio citizen and a former patient of Defendant Smith. (Id. ¶ 7). On May 1, 2018, Defendant Horner filed suit against Defendant Smith and Synergy Clinic. (Pl.'s Compl. ¶ 25) (citing Exhibit D). Defendant Horner alleged that in May 2017, Smith touched the "pectoralis muscle of [her] left breast in a way that made [her] feel uncomfortable" and "guided [her] hand behind her back and placed his penis in her hand." (Id. ¶ 26) (citing Exhibit D). Defendant Horner asserted the following counts in her complaint: (1) assault, (2) battery, (3) negligence, (4) failure to obtain informed consent, and (5) intentional infliction of emotional distress. (Exhibit D).

B. Procedural History

Plaintiff filed the instant action on May 31, 2018, seeking a declaratory judgment that it has no duty to defend, indemnify, or otherwise offer liability coverage to Defendant Smith or Synergy Clinic in connection with any claims asserted in the Doe and Horner Lawsuits. (Pl.'s Compl. ¶ A–H). On My 31, 2018, Defendant Doe filed a Motion to Dismiss Plaintiff's Complaint, or alternatively, a Motion to Stay Proceedings pending the conclusion of the underlying state court litigation. (ECF No. 8 ). On August 20, 2018, Plaintiff filed its Response in Opposition. (ECF No. 9 ). On September 17, 2018, Defendant Doe filed her Reply brief. (ECF No. 13 ). Three days later, on September 20, 2018, Plaintiff filed a Motion for Leave to File Sur-Reply. (ECF No. 14 ). On October 11, 2018, Defendant Doe responded with a Motion to Strike, or alternatively, a Memorandum in Opposition to Plaintiff's Motion for Leave to File Sur-Reply. (ECF No. 17 ).

That same day, the Court ordered Plaintiff to show cause within fourteen days why it should not dismiss this action against Synergy Chiropractic without prejudice for failure to effect service. (ECF No. 16 ). Plaintiff moved for default judgment against Defendant Smith on October 18, 2018. (ECF No. 19 ). On October 22, 2018, the Magistrate Judge issued a Report and Recommendation recommending that: (1) Plaintiff's Motion for Default Judgment be denied without prejudice, and (2) Plaintiff's claims against Synergy Chiropractic be dismissed without prejudice pursuant to Rule 4(m). (ECF No. 20 ).

On November 13, 2018, Defendant Doe filed a Supplemental Affidavit of Alexander J. Durst in support of her Motion to Dismiss or Stay Proceedings. (ECF No. 31 ). Plaintiff filed a Motion to Strike the Supplemental Affidavit on November 27, 2018. (ECF No. 33 ). One day later, the Court adopted the Magistrate Judge's Report and Recommendations (ECF No. 20 ), denying Plaintiffs Motion for Default Judgement without prejudice and dismissing Plaintiff's claims against Synergy Chiropractic without prejudice. (ECF No. 34 ). On December 27, 2018, Defendant Doe filed a Response to Plaintiff's Motion to Strike. (ECF No. 37 ). Plaintiff filed a Reply brief in support of its Motion to Strike on January 2, 2019. (ECF No. 39 ). All motions are ripe for review.

II.

A. Legal Standard to File Sur-reply

Although Plaintiff has no automatic right to file sur-reply, additional memoranda are sometimes considered. Local Civil Rule 7.2(a) states that only supporting, opposing, and reply memoranda can be filed, "except upon leave of court for good cause shown." Comtide Holdings, LLC v. Booth Creek Mgmt. Corp. , No. 207-CV-1190, 2010 WL 4117552, at *4 (S.D. Ohio Oct. 19, 2010) (quoting S. D. Ohio Civ. R. 7.2(a) ). Generally, "good cause" exists where the reply brief raises new grounds that were not included in movant's initial motion." Id. (citing as examples Power Marketing Direct v. Moy , 2008 WL 4849289 (S.D. Ohio Nov. 6, 2008) and White v. Honda of America Mfg., Inc. , 191 F.Supp.2d 933, 944 (S.D. Ohio 2002) (holding that the mere fact a sur-reply might be "helpful" is not enough to justify its filing) ). Good cause for a sur-reply also exists where a party seeks to "clarify misstatements" contained in the reply brief. Guyton v. Exact Software N. Am. , 2015 WL 9268447, at *4 (S.D. Ohio Dec. 21, 2015).

B. Analysis of Plaintiffs Motion for Leave to File Sur-reply

Relying on Guyton , Plaintiff argues that a sur-reply is warranted because Defendant Doe "misrepresents the current status of the state court litigation between her, Defendant [Smith], and [Plaintiff]." (Pl.'s Mot. for Sur-reply at 2, ECF No. 14 ). Specifically, Plaintiff suggests that although the "Franklin County Court of Common Pleas granted [Defendant] Doe's motion to amend her complaint (in a seemingly perfunctory manner), [Plaintiff] has not yet had any opportunity to move to dismiss [Defendant] Doe's newly-added claims against it." (Pl.'s Amended Mot. for Sur-reply at 2–3, ECF No. 15-1 ). Thus, Plaintiff argues it is not yet a participant in the litigation. Defendant Doe moves to strike Plaintiffs Sur-reply, arguing that Plaintiff "not only fails to establish good cause for the allowance of a sur-reply brief, but strongly misconstrues [Defendant] Doe's reply brief." (Def.'s Mot. to Strike Sur-reply at 1, ECF No. 17 ). In Defendant Doe's view, she "never stated or in any way implied that NCMIC had been served or participated in the state case." (Id. at 4).

The Court declines to conclude whether Defendant Doe's characterization of the state court litigation contained misstatements. Instead, the Court notes that "in this...