The Sanitary Board of The City of Charleston, West Virginia v. Colonial Surety Company

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

THE SANITARY BOARD OF THE CITY OF CHARLESTON, WEST VIRGINIA, a municipal utility,

Plaintiff,

v. Civil Action No. 2:18-cv-01100

COLONIAL SURETY COMPANY, a Pennsylvania corporation, and PARTNERRE INSURANCE COMPANY OF NEW YORK, a New York corporation,

Defendants;

and

COLONIAL INSURANCE COMPANY, a Pennsylvania corporation,

Third-Party Plaintiff,

v.

TRI-STATE PIPELINE, INC., and Ohio corporation, and ERIC D. TAYLOR,

Third-Party Defendants and Fourth-Party Plaintiffs,

BURGESS & NIPLE, INC., an Ohio corporation,

Fourth-Party Defendant. ORDER Pending is Fourth-Party Defendant, Burgess & Niple, Inc.’s Motion for Leave to File a Supplemental Motion for

Summary Judgment on the Claims of Tri-State Pipeline, Inc. (ECF No. 502), filed April 29, 2022. No response has been filed. On March 15, 2021, Burgess & Niple filed its motion for summary judgment against fourth-party plaintiff Tri-State Pipeline, Inc. (“Tri-State”). On August 27, 2021, this court entered a 66-page memorandum opinion and order which granted

Burgess & Niple’s motion for summary judgment in part and dismissed the majority of Tri-State’s 57 stated claims against Burgess & Niple. ECF No. 468. Burgess & Niple now seeks to a file a supplemental motion for summary judgment pertaining to the claims that survived its previous motion. ECF No. 502. It appears that the

basis of the supplemental motion is that Burgess & Niple believes Tri-State’s expert cannot “provide proper expert testimony” on Tri-State’s remaining claims. District courts have discretion to consider second or successive motions for summary judgment. Hoffman v. Tonnemacher, 593 F.3d 908, 910−11 (9th Cir. 2010) (collecting

cases). Here, the court declines to exercise that discretion inasmuch as the court has already fully considered a comprehensive motion for summary judgment by Burgess & Niple. Burgess & Niple is free to contest the sufficiency of Tri- States’ evidence on the remaining claims at trial.

Accordingly, the court ORDERS that Burgess & Niple’s motion (ECF No. 502) be, and hereby it is, denied.

The Clerk is requested to transmit copies of this order to all counsel of record and any unrepresented parties.

ENTER: May 23, 2022

- Bb, Jo . Copenhaver, Jr. Senior United States District Judge