Opinion
21-24284-CIV-MORENO/GOODMAN
01-10-2023
GENERAL STAR NATIONAL INSURANCE COMPANY, Plaintiff, v. MDLV, LLC d/b/a ONE SOTHEBY'S INTERNATIONAL REALTY, et al., Defendants.
THE HONORABLE FEDERICO A. MORENO
REPORT AND RECOMMENDATIONS ON PLAINTIFF GENERAL STAR'S SUMMARY JUDGMENT MOTION
JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE
In this declaratory judgment case, Plaintiff General Star National Insurance Company (“General Star” or “Plaintiff”) filed a motion for partial summary judgment on Counts II and III of the Second Amended Complaint. [ECF No. 83]. Defendant One Sotheby's International Realty (“One Sotheby's”) filed a response [ECF No. 90] and General Star filed a reply [ECF No. 95]. Senior United States District Judge Federico A. Moreno referred to the Undersigned all pretrial proceedings for an Order on non-dispositive motions and for a Report and Recommendations on dispositive motions. [ECF No. 14].
For the reasons discussed below, the Undersigned respectfully recommends that the District Court deny General Star's Summary Judgment Motion.
The Undersigned issued a Report and Recommendations, recommending that One Sotheby's' motion for judgment on the pleadings be granted. [ECF No. 93]. The issues raised in that motion are identical to the issues raised in the instant motion. The only meaningful difference between the two motions is that the party seeking the favorable ruling is now the opposing party, which means the facts must be viewed in the light most favorable to One Sotheby's as opposed to being viewed in the light most favorable to General Star. Compare Capitol Specialty Ins. Corp. v. W. View Apartments, Inc., No. 21-11675, 2021 WL 6101663, at *1 (11th Cir. Dec. 22, 2021) (“In determining whether a party is entitled to judgment on the pleadings, we accept as true all material facts alleged in the non-moving party's pleading, and we view those facts in the light most favorable to the non-moving party.”) with Hardigree v. Lofton, 992 F.3d 1216, 1223 (11th Cir. 2021) (when assessing a summary judgment motion, “[a]ll evidence and factual inferences are viewed in the light most favorable to the non-moving party, and all reasonable doubts about the facts are resolved in favor of the non-moving party”).
Thus, if anything, General Star's arguments -- now made as the movant -- have only become weaker. Because General Star did not persuade me of its position on coverage and exclusion issues concerning the insurance policy contract when it was not the movant, it cannot convince me of those arguments as the movant, where the evidence and inferences are viewed in a light most favorable to One Sotheby's. Therefore, for the same reasons that the Undersigned recommended that the District Court grant One Sotheby's' motion for judgment on the pleadings [ECF No. 93], the Undersigned respectfully recommends that the District Court deny General Star's Summary Judgment Motion.
The parties will have seven (7) days from the date of being served with a copy of this Report and Recommendations within which to file written objections, if any, with United States District Judge Federico A. Moreno. Each party may file a response to the other party's objection within seven (7) days of the objection. Failure to file objections timely shall bar the parties from a de novo determination by the District Judge of an issue covered in the Report and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report except upon grounds of plain error if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).
The Undersigned has shortened the deadlines for filing Objections and Responses because the issue is amply briefed.