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noting that, when resolving an unopposed motion for summary judgment, courts need not “sua sponte review all of the evidentiary materials on file” to make the non-movant's argument for him, but rather “must ensure that the motion itself is supported by evidentiary materials” (quoting United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004))
Summary of this case from Forde v. KrantzOpinion
Case No. 1:21-cv-22502-KMM
2022-02-24
MINISTERIOS EL CAMINO, Plaintiff, v. SCOTTSDALE INSURANCE COMPANY, Defendant.
Alexander Christopher Alonso, The Weir Law Firm, P.A., Miami, FL, Samuel Josiah Cili, The Strems Law Firm, P.A., Coral Gables, FL, for Plaintiff. Julia Grimke Young, The Rock Law Group, P.A., Maitland, FL, Sean William Rolland, Wilson Elser, Orlando, FL, for Defendant.
Alexander Christopher Alonso, The Weir Law Firm, P.A., Miami, FL, Samuel Josiah Cili, The Strems Law Firm, P.A., Coral Gables, FL, for Plaintiff.
Julia Grimke Young, The Rock Law Group, P.A., Maitland, FL, Sean William Rolland, Wilson Elser, Orlando, FL, for Defendant.
ORDER
K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant Scottsdale Insurance Company's ("Defendant" or "Scottsdale") Motion for Summary Judgment, ("Mot.") (ECF No. 17), and Motion to Strike Plaintiff's Expert Witnesses, (ECF No. 18). Plaintiff Ministerios El Camino ("Ministerios" or "Plaintiff") failed to file responses and the time to do so has passed. See S.D. Fla. L.R. 7.1(c)(1). The Motions are now ripe for review.
The undisputed facts are taken from Defendant's Statement of Material Facts ("Def.’s 56.1") (ECF No. 16) and a review of the corresponding record citations and exhibits. In failing to file a response, Plaintiff also failed to file a Statement of Material Facts to "challenge any purportedly material fact asserted by [Defendant] that [Plaintiff] contends is genuinely in dispute." See S.D. Fla. L.R. 56.1(a)(2). The Local Rules further provide that "[a]ll material facts in any party's Statement of Material Facts may be deemed admitted unless controverted by the other party's Statement of Material Facts, provided that: (i) the Court finds that the material fact at issue is supported by properly cited record evidence; and (ii) any exception under Fed. R. Civ. P. 56 does not apply." Id. r. 56.1(c).
This is an insurance contract dispute arising under the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. Plaintiff Ministerios El Camino is a citizen of Florida. ("Not. Removal") (ECF No. 1) ¶ 7 (citing ("Compl.") (ECF No. 1-1) ¶ 3). Defendant Scottsdale Insurance Company is an Ohio corporation with its principal place of business in Arizona. Not. Removal ¶ 8. Defendant asserts that Plaintiff estimates damages in the amount of $287,782.98. Id. ¶¶ 4–5 (citing (ECF No. 1-2)).
The Complaint begins on page 6 of Exhibit A to Defendant's Notice of Removal. (ECF No. 1-1) at 6–8.
Plaintiff filed this case on April 27, 2021 in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, asserting a single claim for breach of contract. See generally Compl. Plaintiff's Complaint alleges that Plaintiff owns a property covered by an insurance policy issued by Defendant, the subject property was damaged on September 10, 2017 when a windstorm during Hurricane Irma caused an opening in the subject property through which rain entered, and this loss is covered under the policy issued by Defendant. Id. ¶¶ 3, 7–12. Plaintiff alleges it submitted a claim to Defendant for the loss, protected the subject property from further damage, and that Defendant investigated the claim. Id. ¶¶ 13–15. However, Defendant allegedly failed to pay for all damages Plaintiff sustained, and as a result, Defendant has breached the insurance contract. Id. ¶¶ 15, 19–28. On July 13, 2021, Defendant removed the case to this Court, invoking the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. See generally Not. Removal. The undisputed facts are as follows.
Defendant's Notice of Removal states that this case was filed on June 8, 2021. Not. Removal ¶ 1. However, a review of the state court docket reveals that the Complaint was filed on April 27, 2021. Ministerios El Camino v. Scottsdale Ins. Co. , No. 2021-009954-CA-01 (Fla. Cir. Ct. Miami-Dade Cnty. Apr. 27, 2021).
Defendant was served with process on June 14, 2021. (ECF No. 1-1) at 2–3. The case was then timely removed on July 13, 2021. See generally Not. Removal.
Defendant issued Plaintiff a surplus lines commercial insurance policy effective from January 21, 2017 to January 21, 2018. Def.’s 56.1 ¶ 1 (citing "Policy" (Ex. A to the Declaration of David Gee ("Gee Decl.")) (ECF No. 16-1) at 5–99 ). The Policy provides insurance coverage for property owned by Plaintiff located at 6790 S.W. 12th Street, Miami, Florida 33144. Id. The Policy requires Plaintiff to give Defendant "prompt notice" in the event of a loss:
Citations to the Policy reference the pagination within the Court's electronic case filing system. (ECF No. 16-1).
E. Loss Conditions
The following conditions apply in addition to the Common Policy Conditions and the Commercial Property Conditions:
[...]
3. Duties In The Event Of Loss Or Damage
a. You must see that the following are done in the event of loss or damage to Covered Property:
[...]
(2) Give us prompt notice of the loss or damage. Include a description of the property involved.
Def.’s 56.1 ¶ 2 (quoting Policy at 65–66). For losses that are the result of a windstorm, as alleged in this case, limitations in the Policy provide as follows:
A. Covered Causes Of Loss
When Broad is shown in the Declarations, Covered Causes of Loss means the following:
[...]
4. Windstorm or Hail, but not including:
[...]
c. Loss or damage to the interior of any building or structure, or the property inside the building or structure, caused by rain, snow, sand or dust, whether driven by wind or not, unless the building or structure first sustains wind or hail damage to its roof or walls through which the rain, snow, sand or dust enters; or
Def.’s 56.1 ¶ 3 (quoting Policy at 77). The deductible for covered losses resulting from windstorms is $30,000.00. Def.’s 56.1 ¶ 4. (citing Policy at 88 (stating that the deductible amount for wind or hail is 10 percent of the Limit of Insurance)); see also Policy at 55 (stating that the Limit of Insurance is $300,000.00).
Plaintiff alleges that the subject property was damaged on September 10, 2017 during Hurricane Irma. Def.’s 56.1 ¶ 5 (citing Compl. ¶ 10). However, it is undisputed that Plaintiff did not notify Defendant of Plaintiff's claim for damage to the subject property until 908 days later, on March 6, 2020. Def.’s 56.1 ¶ 6 (citing Gee Decl. ¶ 12). When Plaintiff reported the loss to Defendant, the loss was assigned a claim number, Def.’s 56.1 ¶ 7 (citing Gee Decl. ¶ 5), and the subject property was inspected on May 5, 2020. Def.’s 56.1 ¶ 9 (citing Declaration of Estuardo Terraza ("Terraza Decl.") (ECF No. 16-2) ¶ 4). Given the passage of time between the alleged loss and Plaintiff's reporting that loss, Defendant contends that it was unable to inspect the subject property in the condition it was in at or near the date of the alleged loss. Gee Decl. ¶ 13. The engineer who inspected Plaintiff's property on behalf of Defendant also avers that the passage of time between the alleged date of the loss and when Plaintiff reported that loss, in addition to repairs that were made to the roof of the subject property, prejudiced his investigation and did not allow him to determine which damages, if any, were caused by Hurricane Irma. Def.’s 56.1 ¶ 9 (citing Terraza Decl. ¶ 6).
Defendant cites to paragraph 11 of the Declaration of David Gee; however, this fact is located at paragraph 12.
Now, Defendant moves for summary judgment. See generally Mot.
II. LEGAL STANDARD
Summary judgment is appropriate where there is "no genuine issue as to any material fact [such] that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56 ). A genuine issue of material fact exists when "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). "For factual issues to be considered genuine, they must have a real basis in the record." Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir. 2009) (citation omitted). Speculation cannot create a genuine issue of material fact sufficient to defeat a well-supported motion for summary judgment. See Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005).
The moving party has the initial burden of showing the absence of a genuine issue as to any material fact. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). In assessing whether the moving party has met this burden, a court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the non-moving party. Denney v. City of Albany , 247 F.3d 1172, 1181 (11th Cir. 2001). Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to present evidence showing a genuine issue of material fact that precludes summary judgment. Bailey v. Allgas, Inc. , 284 F.3d 1237, 1243 (11th Cir. 2002) ; Fed. R. Civ. P. 56(e). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc. , 975 F.2d 1518, 1534 (11th Cir. 1992) (citation omitted). But if the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).
III. DISCUSSION
Defendant argues that it is entitled to summary judgment in two respects. First, Defendant argues that Plaintiff cannot present any evidence of direct physical loss to the subject property during the Policy period. Mot. at 3–6. Second, Defendant argues that Plaintiff failed to promptly notify Defendant of the alleged loss, as required by the Policy, thus creating a legal presumption of prejudice. Id. at 6–9.
The Court first turns to Defendant's Motion to Strike Plaintiff's Expert Witnesses (ECF No. 18), as it bears on Defendant's Motion for Summary Judgment.
A. Defendant's Motion to Strike Plaintiff's Expert Witnesses.
Defendant requests that the Court strike Plaintiff's expert witnesses, preclude those witnesses from testifying at trial, and preclude Plaintiff from presenting evidence and testimony from any undisclosed witnesses at trial. (ECF No. 18) at 5. Plaintiff failed to file a response and the time to do so has passed. See S.D. Fla. L.R. 7.1(c)(1). Plaintiff's failure to file a response, alone, "may be deemed sufficient cause for granting the motion by default." Id. Nonetheless, the Court briefly addresses the merits of the motion and finds that Plaintiff's expert witnesses must be stricken, and that Plaintiff must be precluded from using its expert witnesses to supply evidence on any motion, at a hearing, or at trial.
Rule 26(a)(2) of the Federal Rules of Civil Procedure requires a party to identify any witness it may use at trial to present expert testimony. Fed. R. Civ. P. 26(a)(2). " ‘Disclosure of expert testimony’ within the meaning of the federal rule contemplates not only the identification of the expert, but also the provision of a written report containing ‘a complete statement of all opinions’ and ‘the basis and reasons therefor.’ " Reese v. Herbert , 527 F.3d 1253, 1265 (11th Cir. 2008). To satisfy Rule 26(a)(2), the disclosure of the expert's identity must be accompanied by a written report, signed by the witness, that contains a complete statement of all opinions the witness will express, the facts or data considered in forming those opinions, the exhibits that will be used to summarize or support the expert's opinions, the expert's qualifications, a list of all other cases within the previous four years in which the witness testified as an expert, and the compensation to be paid to the expert. Fed. R. Civ. P. 26(a)(2)(A)–(B).
In addition, Federal Rule of Civil Procedure 37(c)(1) provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Nevertheless, district courts have the discretion to craft an alternative remedy if the prejudice caused by the untimely disclosure can be cured before trial. See Santiago–Diaz v. Laboratorio Clinico Y De Referencia Del Este , 456 F.3d 272, 276 (1st Cir. 2006). The party failing to comply with Rule 26(a) bears the burden of establishing that its non-disclosure was either substantially justified or harmless. Mitchell v. Ford Motor Co. , 318 F. App'x 821, 824 (11th Cir. 2009). As to whether a failure to disclose an expert opinion is substantially justified, there must exist "justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request." Salvani v. Corizon Health, Inc. , No. 17-24567-CIV, 2019 WL 3410028, at *2 (S.D. Fla. July 29, 2019) (citation omitted). And, "[a] failure to timely make the required disclosures is harmless when there is no prejudice to the party entitled to receive the disclosure." Id. (citation omitted).
Here, Defendant asserts, and Plaintiff does not rebut, that Plaintiff failed to provide the following when it served Defendant with its Expert Witness List, ("Pl.’s Expert Disclosure") (ECF No. 18-1):
(i) the names of the experts they propose will testify; (ii) a complete statement of all opinions the witness will express and the basis and reasons for them; (iii) the facts or data considered by the witness in forming them; (iv) any exhibits that will be used to summarize or support them; (v) the witness's qualifications, including a list of all publications authored in the previous 10 years; (vi) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vii) a statement of the compensation to be paid for the study and testimony in the case.
(ECF No. 18) at 1–2 (citing Pl.’s Expert Disclosure). Plaintiff's Expert Witness List identifies only the names of Plaintiff's expert's organizations, their addresses, and the general topics upon which, seemingly, someone from those organizations will opine. See Pl.’s Expert Disclosure. Accordingly, Plaintiff has failed to comply with the requirements of Federal Rule of Civil Procedure 26(a)(2). Because Plaintiff did not file a response, Plaintiff fails to demonstrate that its failure to comply with Rule 26(a) was either substantially justified or harmless. Mitchell , 318 F. App'x at 824.
As a result, the Court finds that Plaintiff may not use its expert witnesses to supply evidence on any motion, at a hearing, or at trial. See Fed. R. Civ. P. 37(c)(1). Defendant's Motion to Strike Plaintiff's Expert Witnesses (ECF No. 18) is granted.
B. Defendant's Motion for Summary Judgment.
Having determined that Plaintiff's expert witnesses are stricken and that Plaintiff may not use its expert witnesses to supply evidence on any motion, at a hearing, or at trial, the Court turns to Defendant's Motion for Summary Judgment.
Plaintiff failed to file a response to Defendant's Motion for Summary Judgment. Consequently, Defendant's Motion for Summary Judgment is unopposed, the arguments therein are unrebutted, and the record evidence in support thereof is undisputed. In deciding an unopposed motion for summary judgment, courts nonetheless "must consider the merits of the motion." United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla. , 363 F.3d 1099, 1101 (11th Cir. 2004). In so doing, courts need not "sua sponte review all of the evidentiary materials on file ... but must ensure that the motion itself is supported by evidentiary materials." Id. At a minimum, courts "must review all of the evidentiary materials submitted in support of the motion for summary judgment." Id.
As to the record evidence in this case, the Court finds that the evidence cited by Defendant is uncontroverted because Plaintiff failed to file an opposing statement of material facts identifying which portions of Defendant's Statement of Material Facts are "disputed" or "undisputed," with corresponding record citations. See S.D. Fla. L.R. 56.1. Plaintiff's failure to do so results in Defendant's Statement of Material Facts, which is supported by properly cited record evidence being deemed admitted. See S.D. Fla. L.R. 56.1(c); see also Reese , 527 F.3d at 1268 ("In upholding the exercise of courts’ discretion to apply deeming orders, our sister circuits have repeatedly stressed the vital function of rules such as Local Rule 56.1, reinforcing stern admonitions with rather colorful imagery. We hold the rule in similarly high esteem." (citations omitted)).
Defendant's Statement of Material Facts contains paragraphs that point out the absence of record evidence in support of Plaintiff's case, as they indicate that Plaintiff failed to respond to certain discovery requests. Def.’s 56.1 ¶¶ 10–13.
As noted earlier, Defendant first argues that Plaintiff cannot present any evidence of direct physical loss to the subject property during the Policy period. Specifically, Defendant asserts that Plaintiff failed to properly disclose (a) its expert witnesses and (b) its fact evidence and witnesses, thus Plaintiff cannot adduce admissible evidence of a covered loss. Mot. at 3–6. Second, Defendant argues that Plaintiff failed to promptly notify Defendant of the alleged loss, as required by the Policy, thus creating a legal presumption of prejudice. Id. at 6–7. On this point, Defendant argues that Plaintiff is unable to overcome that presumption of prejudice. Id. at 7–9.
For the reasons discussed below, the Court finds that, even assuming Plaintiff could adduce competent evidence of a covered loss, no genuine issue of material fact exists as to whether Plaintiff failed to promptly notify Defendant of the alleged loss, as required by the Policy, thus giving rise to a presumption of prejudice. Further, in failing to file a response, Plaintiff fails to bear its burden of rebutting that presumption. The Court thus concludes that Defendant is entitled to summary judgment as a matter of law.
1. Applicable Law.
"[T]he purpose of policy provisions requiring prompt notice ‘is to enable the insurer to evaluate its rights and liabilities, to afford it an opportunity to make a timely investigation, and to prevent fraud and imposition upon it.’ " PDQ Coolidge Formad, LLC v. Landmark Am. Ins. Co. , 566 F. App'x 845, 847 (11th Cir. 2014) (quoting Laster v. United States Fidelity & Guaranty Co. , 293 So. 2d 83, 86 (Fla. Dist. Ct. App. 1974) (quotation marks omitted)). Under Florida law, which applies in this case, "the failure of an insured to give a timely notice of loss in contravention of a policy provision is a legal basis for the denial of recovery under the policy." Lehrfield v. Liberty Mut. Fire Ins. Co. , 396 F. Supp. 3d 1178, 1182 (S.D. Fla. 2019), appeal dismissed , No. 19-13027-HH, 2019 WL 6130842 (11th Cir. Oct. 21, 2019) (quoting Ideal Mut. Ins. Co. v. Waldrep , 400 So. 2d 782, 785 (Fla. Dist. Ct. App. 1981) (internal quotation marks omitted)).
A two-step analysis guides the Court with respect to whether an insured's untimely reporting of a loss is sufficient to result in a denial of coverage under a policy: "[t]he first step is to determine whether the insured provided timely notice. Next, if notice was untimely, prejudice to the insurer is presumed, but that presumption may be rebutted." Yacht Club on the Intracoastal Condo. Assoc., Inc. v. Lexington Ins. Co. , 599 F. App'x 875, 879 (11th Cir. 2015) (citing Bankers Ins. Co. v. Macias , 475 So. 2d 1216, 1218 (Fla. 1985) ).
2. Plaintiff Failed to Provide Defendant with Timely Notice.
It is undisputed that under the Policy, prompt notice of an alleged loss is required. Def.’s 56.1 ¶ 2 (quoting Policy at 65–66). Consequently, Defendant argues that Plaintiff's delay in reporting the loss by nearly thirty (30) months violates the Policy and triggers a presumption of prejudice for untimely notice. Mot. at 6–7. Plaintiff did not file a response to Defendant's Motion or a response Statement of Material Facts, thus Defendant's arguments are unrebutted and, as noted above, the facts it adduces are undisputed.
Defendant's Motion states that the delay was twenty-seven (27) months. Mot. at 6, 8. By the Court's calculation, the delay is closer to approximately thirty (30) months.
Under the first step of the Court's analysis for prejudice arising from untimely notice, there "is no ‘bright-line’ rule under Florida law setting forth a particular period of time beyond which notice cannot be considered ‘prompt.’ " Lehrfield , 396 F. Supp. 3d at 1182 (citing Yacht Club , 599 F. App'x at 879 ). Florida courts typically interpret the word "prompt," or similar phrases, in an insurance policy to "mean that notice should be given ‘with reasonable dispatch and within a reasonable time in view of all of the facts and circumstances of the particular case.’ " Id. (citing Yacht Club , 599 F. App'x at 879 ). In other words, "[n]otice is necessary when there has been an occurrence that should lead a reasonable and prudent man to believe that a claim for damages would arise." Id. (citing Yacht Club , 599 F. App'x at 879 ).
Here, it is undisputed that 908 days elapsed between the date of the alleged loss and the date on which Plaintiff reported the loss to Defendant. Def.’s 56.1 ¶¶ 5–6 (citing Gee Decl. ¶ 12); Mot. at 6. In failing to file a response, Plaintiff fails to proffer any justification for the length of this delay, or otherwise rebut that notice was not prompt. In any event, the Court agrees that this 908-day delay is not prompt. See Lehrfield , 396 F. Supp. 3d at 1182 (finding notice untimely where eight months elapsed between plaintiffs’ awareness of a loss and reporting of that loss); PDQ Coolidge , 566 F. App'x at 847 (finding notice after six months elapsed untimely) (other citations omitted). In fact, it is undisputed that Plaintiff failed to respond to Defendant's interrogatories, which asked Plaintiff to "[d]escribe in detail each aspect of claimed damage at the insured property," including "when the damage first became evidence." Def.’s 56.1 ¶ 11; (ECF No. 16-3) at 11. And, in any event, Defendant's inspector reported, based on an interview with Plaintiff's representative, that the alleged damage was observed shortly after Hurricane Irma. (ECF No. 16-2) at 5, 9; cf. Laquer v. Citizens Prop. Ins. Corp. , 167 So. 3d 470, 474 (Fla. Dist. Ct. App. 2015) ("[D]amage to [plaintiff's] unit or the interior of the wall was not apparent until several years after Hurricane Wilma: no one, including [plaintiff], her tenant, her housekeeper, and the condominium manager and his agents who regularly visited [plaintiff's] unit, was able to observe any damage to the wood flooring or walls of the unit prior to September 2008 or was otherwise put on notice to further inspect for damage."). For these reasons, the Court agrees that, absent evidence or explanations to the contrary, Plaintiff's waiting almost thirty (30) months to provide Defendant with notice of the alleged loss was not reasonable under the circumstances, thus the presumption of prejudice applies in this case. Yacht Club , 599 F. App'x at 879.
3. No Genuine Issue of Material Fact Exists as to Any Fact that Would Rebut the Presumption of Prejudice in This Case.
Defendant also argues that Plaintiff is unable to overcome the presumption of prejudice in this case because Defendant was "never able to see or inspect the property in the condition it was in immediately after the loss." Mot. at 7–9. According to Defendant, this is because Defendant did not receive notice of the loss until thirty (30) months later and because repairs had been made to the subject property. Id. at 8 (citing Def.’s 56.1 ¶¶ 8–9).
Under the second step of the Court's inquiry, prejudice from untimely notice is presumed and the burden shifts to the insured "to show lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts." Lehrfield , 396 F. Supp. 3d at 1183 (citing Yacht Club , 599 F. App'x at 881 ). Under Florida law, "prejudice is properly resolved on summary judgment where an insured fails to present evidence sufficient to rebut the presumption." Id. at 1184 (quoting PDQ Coolidge , 566 F. App'x at 849 ). To satisfy this burden, an insured may submit evidence creating a genuine issue of material fact as to:
(a) whether better conclusions could have been drawn without the delay in providing notice, (b) whether those conclusions could have been drawn more easily, (c) whether the repairs to the affected areas that took place in the interim would complicate an evaluation of the extent of the damage or [the insured's] efforts to mitigate its damages, or (d) whether an investigation conducted immediately following the occurrence would not have disclosed anything materially different from that disclosed by the delayed investigation.
Id. (quoting PDQ Coolidge , 566 F. App'x at 849 ; Yacht Club , 599 F. App'x at 881-82 (internal quotation marks omitted)). Here, by failing to file any response to the instant Motion for Summary Judgment, or a response Statement of Material Facts, Plaintiff fails to rebut the presumption of prejudice. And, in any event, Plaintiff would be precluded from rebutting the presumption of prejudice by adducing evidence from its expert witnesses, as the Court has stricken the expert witnesses Plaintiff disclosed to Defendant. See supra Part III.A.
Accordingly, Defendant is entitled to summary judgment on to Plaintiff's claim for breach of contract.
IV. CONCLUSION
UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendant Scottsdale Insurance Company's Motion for Summary Judgment (ECF No. 17) and Motion to Strike Plaintiff's Expert Witnesses (ECF No. 18) are GRANTED. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, final judgment shall be entered by separate order. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of February, 2022.