STIPULATION AND (PROPOSED) ORDER GRANTING LEAVE TO PLAINTIFFS AND DEFENDANTS TO FILE MULTIPLE SUMMARY JUDGMENT MOTIONS

JON S. TIGAR, District Judge.

The parties have met and conferred following this Court's Order Granting Motion for Summary Judgment (ECF No. 58) regarding the duty to defend. The Court will recall that, in its Order, it held only that "Wausau owed a duty to defend [Plaintiffs] against Cherokee's counterclaims in the underlying action." ECF No. 58 at 6:10-11. Plaintiffs' motion did not present, and the Court did not decide, whether Wausau breached its duty to defend or whether "Plaintiffs' actions in rejecting a settlement that Wausau reached with Cherokee violated the policy's cooperation clause, resulting in Plaintiffs' assumption of responsibility for their own defense. . . ." Id. at fn. 2, 3:26-28; see also id., at 6:11-14 ("The Court again notes that Plaintiffs have not requested summary judgment on any other issue, including the questions of whether Wausau breached that duty or whether Plaintiffs took action that resulted in the forfeiture of that duty."). The parties agree that the Court can and should decide those two issues—whether Defendants breached the duty to defend and whether Plaintiffs took actions that resulted in the forfeitture of that duty—now as a matter of law by way of cross motions for partial summary judgment.

The parties believe that those two issues are threshold questions upon which the other remaining issues in this action depend, including, for instance, whether and, if so, to what extent, Defendants are liable to Plaintiffs for breach of the duty to defend, and whether Defendants might be liable on the stipulated judgment from the underlying action. Accordingly, rulings from the Court on these two issues may focus and streamline the parties' further discovery and motion practice in this action, and may also jump start and facilitate their settlement discussions—at least on some aspects of this action, if not the entire action.

The parties also believe that they will likely be ready to present these two issues to the Court in their moving papers, and to prepare their oppositions to each other's motions, with little, if any, additional discovery, based largely on stipulated facts. On this point, the parties have committed themselves to work together in good faith to try to stipulate to as many of the relevant facts and to the authenticity and admissibility of as many of the relevant documents as possible. That said, as the parties prepare their moving papers, or once they see each other's moving papers, they may decide that they need more time to investigate, gather evidence, conduct discovery, etc. Accordingly, the parties hereby reserve their right under Rule 56 to ask the Court for an extension of time for the parties to brief, or for the Court to hear or decide, their motions in order to allow the parties additional time to investigate, gather evidence, conduct discovery, etc., and to present additional evidence to the Court in connection with such motions.

If the parties do file cross motions for partial summary judgment as contemplated herein, they do not wish to be prevented from filing additional summary judgment or partial summary judgment motions later, if appropriate, and after additional discovery as may be necessary. Accordingly, Plaintiffs hereby request leave of Court to file more than two (since they have already filed one) motions for summary judgment or partial summary judgment, and Defendants hereby request leave of Court to file more than more motion for summary judgment or partial summary judgment. See Standing Order For All Civil Cases Before District Judge Jon S. Tigar, at ¶ D (Each party is limited to one summary judgment motion and "[a]ny party wishing to exceed this limit must request leave of court and must show good cause.").

In sum, the parties hereby request leave of Court to file cross-motions for partial summary judgment on (1) whether Defendants breached their duty to defend and (2) whether Plaintiffs took actions that resulted in the forfeiture of that duty. The parties propose the following briefing schedule: moving papers due April 24, 2015; opposition papers due May 22, 2015; and reply papers due June 5, 2015. The parties agree to meet and confer on a date and time for both motions to be heard together.

ORDER

Having considered the parties' request, and good cause appearing, the Court hereby GRANTS Plaintiffs' request to file more than two, and Defendants' request to file more than one, motion for summary judgment or partial summary judgment in this action.

Plaintiffs and Defendants may file cross motions for summary judgment or partial summary judgment by April 24, 2015. The parties' opposition papers are due by May 22, 2015. The parties' reply papers, if any, are due by June 5, 2015. The parties shall meet and confer to decide on a date and time for a hearing when both motions shall be heard together. These dates are without prejudice to the parties' rights under Rule 56 to ask the Court for an extension of time for the parties to brief, or for the Court to hear or decide, the motions in order to allow the parties additional time to investigate, gather evidence, conduct discovery, etc., and to present additional evidence to the Court in connection with such motions.

PURSUANT TO STIPULATION, IT IS SO ORDERED.