James X. Mullen and Mullen Advertising, Inc. v. St. Paul Fire and Marine Insurance CompanyJames X. Mullen and Mullen Advertising, Inc. v. St. Paul Fire and Marine Insurance Company
This appeal arises from an action brought by plaintiffs-appellees, James X.
I. BACKGROUND
Mullen, an advertising firm located in Wenham, Massachusetts, is St. Paul’s insured under a standard form fire insurance policy conforming to M.G.L. ch. 175, § 99. On November 2, 1987, a fire occurred on Mullen’s premises destroying real and personal property and causing Mullen to lose rental income. Pursuant to the terms of its policy with St. Paul, Mullen submitted a “Partial Interim Sworn Statement in Proof of Loss” on December 3, 1987 in the amount of $1,500,000. This document did not state the actual cash value of the property or the whole loss and damage to the property as a result of the fire. As a consequence, St. Paul rejected the proof of loss in a letter dated January 4, 1988. Nevertheless, St. Paul agreed to reimburse Mullen — without acknowledging liability for the loss — for those expenditures directly incurred to date. To this end, St. Paul issued five checks totaling $1,017,571.56 to Mullen between February 11, 1988 and August 22, 1988. On December 6, 1988, Mullen and St. Paul reached a final agreement that the exact amount of the insured loss totaled $6,592,506. On December 22, 1988, Mullen filed a “Sworn Statement in Proof of Loss” for $3,509,051.44 representing the total agreed claim of loss “net of depreciation, co-insurance penalty, deductible and $1,017,571.56 previously paid.” Mullen indicated on the “Sworn Statement in Proof of Loss” that this amount did not include interest. 1 On the same day, December 22, 1988, St. Paul issued a check to Mullen for $3,509,051.44.
On February 1, 1989, pursuant to M.G.L. ch. 175 §§ 99-102B, 2 Mullen sent St. Paul a formal demand letter seeking interest on the $3,509,051.44 that St. Paul paid for the period beginning 30 days after Mullen’s December 3, 1987 “Partial Interim Sworn Statement in Proof of Loss” and ending on December 22,1988 — the date St. Paul made payment. Because St. Paul continued to maintain that it owed no interest to Mullen on the claim amount, Mullen brought this action against St. Paul in the district court on May 22,1989. Mullen claimed breach of contract and violations of M.G.L. ch. 93A 3 and sought interest pursuant to M.G.L. ch. 175 § 99. On November 16, 1990, Mullen filed a motion for summary judgment on its claims. When St. Paul failed to oppose this motion, the district court on December 20, 1990 issued an order allowing Mullen’s motion and entering summary judgment for Mullen. 4
Apparently unaware that summary judgment had already been entered in Mullen’s favor, St. Paul, on January 3, 1991, filed a
On August 20, 1991, St. Paul filed a motion for reconsideration and to vacate the court’s original December 20, 1990 order entering summary judgment in favor of Mullen. In its motion, St. Paul argued that since the grant of summary judgment, but prior to entry of final judgment, the Massachusetts Supreme Judicial Court decided
Ben Elfman & Sons v. Home Indemnity Co.,
On September 23, 1991, Mullen moved for approval of a form of judgment. The district court granted Mullen’s motion on October 8, 1991 — despite St. Paul’s opposition — and entered final judgment for Mullen in the amount of $1,173,071.74, representing interest owed, double damages, attorney’s fees and costs. St. Paul filed this appeal on October 18, 1991.
II. DISCUSSION
On appeal, St. Paul does not challenge the district court’s entry of default against it. Rather, St. Paul’s primary contention on appeal is that, as a matter of law, the district court erred in awarding interest and double damages to Mullen on its insurance claim. Accordingly, St. Paul asks this court to reverse the district court and enter summary judgment in its favor. Because Mullen conténds that St. Paul’s appeal is untimely and otherwise defective, we address Mullen’s procedural challenges to the appeal before reaching the merits.
A. Procedural Challenges
Mullen contends first that this court lacks jurisdiction to hear St. Paul’s appeal because St. Paul did not file a timely notice of appeal. According to Mullen, the district court’s December 20,1990 order was a final judgment on the merits of its summary judgment motion. This order was entered on the civil docket on August 1, 1991. Because St. Paul did not file its notice of appeal from the judgment within 30 days of its entry, Mullen contends that this court lacks jurisdiction to hear St. Paul’s appeal. We disagree.
Pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, a notice of appeal in a civil case must be filed with the clerk of the district court “within 30 days after the date of entry of the judgment or order appealed from.” Fed. R.App.P. 4(a)(1). “A judgment or order is entered within the meaning of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of
The district court’s December 20, 1990 order simply read: “No opposition having been filed to plaintiffs’ motion for summary judgment, the motion is allowed and summary judgment entered for plaintiffs.” Such an order did not in this case “end[ ] the litigation ... leaving] nothing for the court to do but execute the judgment.”
Catlin v. United States,
enter an order directing the Defendant to pay forthwith to the Plaintiffs interest calculated at one percent (1%) over the prevailing prime rate of interest on the principal sum of $3,509,050.44 commencing not later than thirty (30) days from the date insured loss and damage was sustained [or,] ... [i]n the alternative, ... commencing no later than thirty (30) days from the date the Plaintiffs filed a sworn statement in proof of loss with defendant (January 3, 1988), together with costs and attorney’s fees.
With respect to Count II (defendant’s alleged violations of M.G.L. ch. 93A), Mullen asked the court to
enter an order directing the Defendant to pay forthwith to the Plaintiffs a sum equal to not less than two (2), but not more than three (3) times the actual damages determined under Count I, together with costs and attorney’s fees.
The ordering of summary judgment in Mullen’s favor left unresolved the exact amount of relief to which Mullen would be entitled and for which St. Paul would be liable.
7
Where an order fails to state the amount of recovery and where that amount is not certain, the order can not be said to be a final judgment “leaving nothing for the court to do but execute the judgment.”
Domegan,
Nor can we say that the district court intended its December 20, 1990 order to be a final judgment.
See Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified Wrecked and Abandoned Steam Vessel,
Mullen’s second procedural attack on St. Paul’s appeal asserts that we should not address the merits because summary judgment in Mullen’s favor was appropriate as a sanction based on St. Paul’s failure to respond to Mullen’s summary judgment motion. Mullen argues that on October 12, 1990, the district court, noting the absence of recorded action in the case, ordered both parties to file a status report with the court. The court noted that “[fjailure to file status report will result in the entry of an order of dismissal and/or default.” Pursuant to the court’s order, the parties filed a joint status report indicating that they were currently agreeing to stipulations of fact, “after which time plaintiffs intend to file a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.” The report went on to state that “[t]he parties anticipate agreement on the Stipulation and plaintiffs’ motion by November 16, 1990, after which the Defendant, will respond within the appropriate rule period.” According to Mullen, because Local Rule 7.1 required St. Paul to file an opposition to Mullen's motion for summary judgement-filed as promised on November 16, 1990-St. Paul’s failure to do. so within the appropriate rule period constituted a breach of its commitment to Mullen and to the court, and was tantamount to a sanctionable violation of the district court’s order. As this court has recognized a district court’s discretion to impose sanctions such as default or dismissal,
see Anderson v. Beatrice Foods Co.,
We are not persuaded. First, nothing in the record suggests that St. Paul failed to comply with a direct order of the court. The court’s order of October 12, 1990 instructed that the parties file a status report and indicated that failure to do so would result in entry of dismissal or default. The parties, including St. Paul, filed a status report as directed. The court itself did not issue special directions concerning the filing of an opposition.
Second, nothing in Local Rule 7.1 states that failure to file an opposition to a motion is grounds for entry of default. The rule sets out the time within which an opposition must be filed, stating only that “[a]
Rule 56(e) of the Federal Rules of Civil Procedure provides that “if the adverse party does not [file an opposition], summary judgment,
if appropriate,
shall be entered against the adverse party.” Fed.R.Civ.P. 56(e) (emphasis supplied). This court has made clear that the failure of a non-moving party to file timely opposition to a motion for summary judgment, does not, in itself, justify entry of summary-judgment against that party, but that “the district court [is] still obliged to consider the motion on its merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate.”
Kelly v. United States,
B. The Merits
As we have stated, pursuant to Rule 56(e) and the case law interpreting it, entry of summary judgment in Mullen’s favor was appropriate only if Mullen was entitled to judgment
as a matter of law
based on the undisputed and unopposed facts before the court. We turn now to the merits of the appeal to assess whether summary judgment was appropriate as a matter of law. Our review is
de novo. See, e.g., Rodriques v. Furtado,
Massachusetts’ statutory fire policy provides that an insurance company
shall be liable for the payment of interest to the insured at a rate of one per cent over the prime interest rate on the agreed figure commencing thirty days after the date an executed proof of loss for such figure is received by the company, said interest to continue so long as the claim remains unpaid.
M.G.L. ch. 175 § 99. In the district court Mullen claimed that because it executed a proof of loss on December 3, 1987, it should be paid interest on the amount that St. Paul owed beginning thirty days after that date. Mullen also claimed that by compelling it to institute litigation to recover amounts due under its insurance policy, St. Paul also engaged in unfair and deceptive acts and practices within the meaning of the Consumer Protection Act, M.G.L. ch. 93A. The district court entered judgment for Mullen without opinion, except to state “[n]o opposition having been filed to plaintiffs’ motion for summary judgment, the motion is allowed and summary judgment entered for plaintiffs.”
8
See
Fed.R.Civ.P.
On appeal St. Paul contends that as a matter of law summary judgment in favor of Mullen was inappropriate. According to St. Paul, the plain language of M.G.L. ch. 175, § 99 only requires interest to be paid commencing 30 days after the date an executed proof of loss for an agreed figure is received. Here, it was stipulated that the parties did not reach final agreement as to the exact amount of insured loss until December 6, 1988. Accordingly, St. Paul argues that the relevant date from which to determine whether interest was owing under the statute is the date on which Mullen submitted a sworn statement in proof of loss for the agreed figure — December 22, 1988. Because St. Paul delivered a check to Mullen for the agreed amount immediately upon its submission of this second proof of loss, it contends that no interest accrued under the statute. We agree.
The plain language of the statute makes clear that interest accrues on
“the agreed figure
commencing thirty days after the date an executed proof loss
for such figure
is received by the company.” M.G.L. ch. 175 § 99 (emphasis supplied). We do not read the statute to require an insurer to pay interest on an amount of loss before any agreement has been reached as to the actual amount of loss. This interpretation is consistent with the Massachusetts Supreme Judicial Court’s reading of the statute. In
Ben Elfman & Sons, Inc. v. Home Indemnity Co.,
[a]n insurer is not required to pay a loss before its amount has been established by agreement or arbitration. In a case involving a loss established by agreement, the insurer must pay that loss within thirty days after the insured has filed a sworn proof of loss for the agreed figure and, if the insurer fails to do so, it will be liable for interest commencing after expiration of the thirty-day period.
Ben Elfman & Sons, Inc.,
411 Mass, at 19,
Reversed. Costs to Appellants.
Notes
. In response to Mullen’s request for a statement of St. Paul's position on the payment of interest on the amount of the Loss, St. Paul, by letter dated December 16, 19.88, informed Mullen that it believed that it would not owe any interest on the amounts claimed unless it failed to pay the claim 30 days after Mullen submitted a completed "Statement of Proof of Loss.” As St. Paul considered Mullen’s December 3, 1987 statement to be incomplete, it contended that the thirty day period had not begun to run.
. M.G.L. Chapter 175 Section 99 states:
The company shall be liable for the payment of interest to the insured at a rate of one per cent over the prime interest rate on the agreed figure commencing thirty days after the date an executed proof of loss for such figure is received by the company said interest to continue so long as the claim remains unpaid.
. M.G.L. Chapter 93A Section 2(a) (the “Massachusetts Consumer Protection Act") states in pertinent part "... unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful."
. Under Local Rule 7.1(A)(2) St. Paul was required to file its opposition within fourteen days of the filing of summary judgment. It did not do so.
. Fed.R.Civ.P. 60(b)(1) provides in pertinent part:
on motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect. ...
. Rule 58 of the Federal Rules of Civil Procedure requires that "[e]very judgment ... be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)....” Fed. R.Civ.P. 58(2). Rule 79 of the Federal Rules of Civil Procedure provides that civil docket entries "shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made.” Fed. R.Civ.P. 79(a).
. In its motion for Summary Judgment, Mullen further defined its request for relief as to count I, asking for the sum certain of $479,012 representing interest computed at the contract rate. The relief Mullen sought as to count II, however remained indefinite. Mullen sought “an amount equal to at least two times, but not greater than three times the aforementioned judgment."
. This statement is from the district court’s December 20, 1990 order. As we have stated su-