Toussie v. Allstate Ins. Co., Case No. 14-CV-2705 (FB) (CLP)

213 F.Supp.3d 444

Robert TOUSSIE, Plaintiff,

v.ALLSTATE INSURANCE COMPANY; Alan Rodriguez Insurance Agency, Inc.; George J. Schlott, Inc.; Alan Rodriguez, individually; and George J. Schlott, individually, Defendants.

Case No. 14-CV-2705 (FB) (CLP)

United States District Court, E.D. New York.

Signed September 30, 2016

For the Plaintiff: MARK E. GOIDELL, ESQ., 666 Old Country Road, Suite 700, Garden City, New York 11530

For Defendant Allstate Insurance Co.: J. MICHAEL PENNEKAMP, ESQ., Fowler White Burnett, P.A., 1395 Brickell Avenue, 14th Floor Miami, Florida, 33131, PATRICK W. BROPHY, ESQ., McMahon, Martine & Gallagher, LLP, 55 Washington Street, Suite 270, Brooklyn, New York 11201

MEMORANDUM AND ORDER

BLOCK, Senior District Judge:

On January 25, 2016, defendant Allstate Insurance Company ("Allstate") moved to dismiss the complaint against it pursuant to Federal Rule of Civil Procedure 12(b)(6). While the motion was pending, and prior to answer, Allstate and the plaintiff both moved for summary judgment under Rule 56. All motions are outstanding.

During oral argument on the motions, the parties referenced facts—apparently undisputed—that may have some bearing on the just resolution of this case. Although the plaintiff seeks to recover for the damages occasioned by Hurricane Sandy to one of his properties on the ground that Allstate incorrectly applied the premium payment to a different policy covering another one of the plaintiff's properties damaged by Hurricane Sandy, he apparently previously recovered on the policy to which the payment was incorrectly applied. Thus, if summary judgment were granted to the plaintiff, he would arguably be the recipient of a windfall since he would receive a double recovery for the same single premium payment. "[C]ourts can and should preclude double recovery by an individual." General Tel. Co. v. EEOC , 446 U.S. 318, 333, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Yet, since summary judgment is sought prior to answer, granting summary judgment to plaintiff at this stage of the litigation would preclude Allstate from answering and raising affirmative defenses or counterclaims relative to this issue.

Rule 56(b) allows a summary judgment motion to be made "at any time." But courts routinely deny motions for summary judgment as premature when discovery over relevant matters is incomplete. See, e.g. , Miller v. Beneficial Mgmt. Corp. , 977 F.2d 834, 846 (3d Cir.1992) (reversing summary judgment entered when several depositions remained to be taken); Murrell v. Bennett , 615 F.2d 306, 310 (5th Cir.1980) (reversing summary judgment entered before discovery had begun). They have also recognized that "in many cases [a motion for summary judgment] will be premature until the nonmovant has had time to file a responsive pleading." Helios Int'l S.A.R.L. v. Cantamessa USA, Inc. , 23 F.Supp.3d 173, 188–89 (S.D.N.Y.2014) (quoting Fed. R. Civ. P. 56 Advisory Committee Notes).

Federal Rule of Civil Procedure 1 directs district courts to apply the federal rules to secure a "just, speedy, and inexpensive" determination of an action. It would be manifestly...