1Because Home Depot’s motion presents a request that in the

circumstances of this case primarily falls within the court’s

discretion, and to avoid undue delay, the court is deciding the

motion without awaiting an opposition response.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HOME DEPOT U.S.A., INC., §

 §

Plaintiff, §

 §

VS. §

 §

NATIONAL FIRE INSURANCE §

COMPANY OF HARTFORD, §

 § Civil Action No. 3:06-CV-0073-D

Defendant- §

Third-Party Plaintiff, §

 §

VS. §

 §

EXPRESS SITE PREPARATION, INC. §

and AMERICAN EQUITY INSURANCE §

COMPANY, §

 §

Third-Party Defendants. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff Home Depot U.S.A., Inc. (“Home Depot”) moves under

N.D. Tex. Civ. R. 56.7 for leave to file supplemental evidence in

support of its motion for summary judgment. The court concludes

that the motion should be treated as a Rule 56.2(b) motion for

leave to file a second motion for summary judgment, and it

concludes in its discretion that the motion should be granted.1

I

The relevant background facts of this case are set out in the

court’s prior opinion granting Home Depot’s October 20, 2006 motion

 

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for summary judgment and need not be repeated. See Home Depot

U.S.A., Inc. v. Nat’l Fire Ins. Co. of Hartford, 2007 WL 846525, at

*1 (N.D. Tex. Mar. 21, 2007) (Fitzwater, J.) (“Home Depot I”). In

Home Depot I the court granted Home Depot’s motion for summary

judgment against National Fire Insurance Company of Hartford

(“National Fire”) on Home Depot’s breach of contract claim “to the

extent of holding that National Fire breached its duty to defend

Home Depot in the Boxcars Litigation.” Id. at *9. The court

“limit[ed] its grant of summary judgment to liability alone.” Id.

at *8. It explained its reasons for declining to grant Home Depot

all the relief it sought in its motion:

Home Depot maintains that it is entitled to

recover $128,708.47 for the attorney’s fees

and costs it incurred in defending its

interests in the Boxcars Litigation. This

figure, however, appears to include not only

expenses that Home Depot incurred in defending

itself in the Boxcars Litigation but some of

the attorney’s fees and costs it has incurred

in prosecuting the instant case. This

potentially blends two different decisions,

one to be made by the trier of fact and the

other to be made by the court. Attorney’s

fees and costs incurred in the Boxcars

Litigation defense are determined by the trier

of fact as part of Home Depot’s breach of

contract claim. Those expended in prosecuting

the present lawsuit are awarded by the court

under the procedures specified in Fed. R. Civ.

P. 54(d) and N.D. Tex. Civ. R. 54.1. The

court is therefore unable to grant summary

judgment awarding Home Depot specific relief

on its breach of contract claim without the

possibility of awarding duplicative attorney’s

fees and costs. It will therefore limit its

grant of summary judgment to liability alone.

 

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Id.

Home Depot now moves the court under Rule 56.7 for leave to

file supplemental evidence that addresses the defect that the court

identified in Home Depot I. It maintains that it reached an

agreement with National Fire regarding the attorney’s fees and

expenses that it incurred, but National Fire reneged on the

agreement. Home Depot seeks leave to file supplemental evidence so

that it can obtain a final summary judgment against National Fire

for all the relief it seeks.

II

So far as the court is aware, this is the first time it has

found it necessary to distinguish between the functions of, and

reasons for, Rules 56.2(b) and 56.7.

Rule 56.2(b) addresses the limit on the number of summary

judgment motions that can be filed without leave of court and

provides: “Unless otherwise directed by the presiding judge, or

permitted by law, a party may file no more than one motion for

summary judgment.” Texas Rules of Court: Federal at 253 (West

Pamp. Supp. 2007). Rule 56.7 addresses restrictions on the

materials that can be submitted in litigating a pending summary

judgment motion. It states: “Except for the motions, responses,

replies, briefs, and appendixes required by these rules, a party

may not, without the permission of the presiding judge, file

supplemental pleadings, briefs, authorities, or evidence.” Texas

 

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Rules of Court: Federal at 254 (West Pamp. Supp. 2007). Rules

56.2(b) and 56.7 have distinct functions and were adopted for

different reasons. Rule 56.2(b) controls the number of summary

judgment motions that can be filed without leave of court. Among

other functions, it prevents the practice——too prevalent before the

Rule was adopted——of circumventing the page limits on summary

judgment motions by dividing arguments among several motions. And

it also enables the court to regulate successive motions that are

filed after the court has devoted time and effort to deciding an

initial motion and has identified issues that are not subject to

summary disposition, but as to which the movant seeks a second bite

at the apple. There may be instances, as in this case, where a

second motion should be permitted. But the court retains ultimate

control that it would not have if successive motions were allowed

as of right. 

Rule 56.7, by contrast, regulates the summary judgment

materials that can be filed in relation to a specific pending

summary judgment motion. This Rule addresses the former practice

of filing supplemental materials, without leave of court, at any

time while the motion was pending. Such filings often prompted

requests by the opposing party for the opportunity to respond to

the new materials, thereby delaying a decision based on a

supplemental filing (and response) that may have had no bearing on

the court’s ruling, or that otherwise created uncertainty about

 

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2Because most summary judgment motions are decided without

oral argument, calculating the correct ripe date is critical to the

process of deciding such motions.

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whether the summary judgment motion was ripe for a decision.2

Home Depot’s motion is properly considered as one filed under

Rule 56.2(b) rather than Rule 56.7. The court’s decision in Home

Depot I was a final adjudication of the summary judgment motion

that Home Depot filed on October 20, 2006. There is currently no

pending motion for which supplemental materials need (or can) be

filed. Home Depot is effectively requesting an opportunity to file

a successive summary judgment motion to address a defect that the

court identified in Home Depot I. As noted above, one purpose for

Rule 56.2(b) is to enable the court to regulate such filings.

In its discretion, the court concludes that Home Depot’s

motion under Rule 56.2(b) should be granted. The only issue that

remains between Home Depot and National Fire for trial is the

amount of attorney’s fees and costs, if any, that Home Depot is

entitled to recover from National Fire for defending its interests

in the Boxcars Litigation. Home Depot I, 2007 WL 846525, at *8.

Adjudicating this issue on summary judgment motion will not unduly

burden the court and the parties and may in fact save the time and

expense of an unnecessary trial.

* * *

Accordingly, treating Home Depot’s June 15, 2007 motion for

leave to file supplemental evidence as a motion for leave to file

 

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3

Home Depot’s request for a hearing on this motion is denied.

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a second summary judgment motion, the court grants the motion.

Home Depot must file the motion, brief, and appendix no later than

July 9, 2007.3

SO ORDERED.

June 27, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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