The opinion of the court was delivered by: Hillman, District Judge
There are four motions before the Court in this matter regarding the counterclaim filed against the plaintiff, Dr. Briglia, by Horizon Healthcare Services d/b/a Horizon Blue Cross/Blue Shield of New Jersey ("Horizon Blue Cross"). The first is plaintiff's motion for summary judgment on the counterclaim. Second is Horizon Blue Cross's cross motion for partial summary judgment on its counterclaim. The third and fourth motions arise from an attempt by defendants J&J Snack Foods Corporation ("J&J"), N.J. Bricklayers and Allied Craftsman Health and Welfare Fund ("BAC"), and Gary J. Mercadante ("Mercadante") to join in Horizon Blue Cross's motion for partial summary judgment.*fn1
Plaintiff, Frank A. Briglia, M.D., is a Board Certified pediatric care physician who brought claims against defendants for their failure to reimburse him for treatment he provided to several of their insureds. Horizon Blue Cross and J&J filed counterclaims against Dr. Briglia for insurance fraud, common law fraud, and unjust enrichment alleging that Dr. Briglia submitted false insurance claims and was wrongfully reimbursed pursuant to those alleged false claims.
This case was originally assigned to Judge Freda L. Wolfson who entered an order and opinion on May 13, 2005, upon the motion to dismiss, or in the alternative, for summary judgment filed by defendants Horizon Blue Cross and Horizon Mercy. Briglia v. Horizon Healthcare Services, Inc., No. 03-6033, 2005 WL 1140687 (D.N.J. May 13, 2005). Judge Wolfson dismissed plaintiff's claim pursuant to 502(a)(1)(B) of ERISA,*fn2 and breach of fiduciary duty under ERISA against Horizon Blue Cross (Counts II and VI of the amended complaint).*fn3 Id. at *10. Judge Wolfson also dismissed plaintiff's claim pursuant to the New Jersey Prompt Payment Statute ("PPS") (Count VII of the amended complaint) finding that the PPS only applies where there is no dispute regarding a claim or fraud and in this case Horizon Blue Cross disputes the claims and alleges fraud against the plaintiff. Id. at *11. Judge Wolfson denied Horizon Mercy's request to dismiss plaintiff's breach of contract claim (Count I of the amended complaint) and retained supplemental jurisdiction over the claim since other federal claims remained in the case. Id. at *12.
As a result of Judge Wolfson's opinion and order, the remaining defendants in this case are Horizon Mercy, J&J, BAC and Gary Mercadante. Horizon Blue Cross remains as a counterclaimant. Plaintiff's surviving claims*fn4 are a breach of contract claim against Horizon Mercy (Count I), 502(a)(1)(B) claims against BAC (Count III) and J&J (Count IV), and a statutory breach of fiduciary duty claim against Gary Mercadante (Count VI). Plaintiff faces counterclaims of violation of the New Jersey Insurance Fraud Prevention Act, common law fraud and unjust enrichment.
A. Timeliness of the Motions for Summary Judgment
Before the merits of plaintiff's motion and defendants' cross motions can be reached, it must be determined whether all the filings were timely and properly filed. In his reply, plaintiff raises the issue that Horizon Blue Cross's cross motion was untimely filed and J&J's and BAC/Mercandante's motions joining Horizon Blue Cross's cross motion were improperly and untimely filed.
On September 25, 2006, the Court entered a scheduling order providing that dispositive motions were to be filed no later than November 6, 2006, and that opposition to the motion should be served in a timely fashion. Counsel also were advised to follow local motion practice rules. In accordance with the scheduling order, plaintiff filed his motion for summary judgment regarding Horizon Blue Cross's counterclaim on November 6, 2006. According to local practice, the return date for the motion was set for December 1, 2006, resulting in opposition papers being due on November 17, 2006. On November 16, 2006, Horizon Blue Cross filed a notice of automatic extension which extended the response date to December 1, 2006, and the new motion date to December 15, 2006. On December 1, 2006, Horizon Blue Cross filed its opposition to plaintiff's motion, and a cross motion for partial summary judgment. Plaintiff argues that Horizon Blue Cross's cross motion is untimely because it was not filed on November 6, 2006, when dispositive motions were due in accordance with the scheduling order.
Local Rule 7.1(h) permits a party to file a cross motion "... related to the subject matter of the original motion ... together with that party's opposition papers... ." See Davis v. Twp. of Paulsboro, 371 F. Supp. 2d 611, 617 (D.N.J. 2005). The cross motion "... may be noticed for disposition on the same date as the original motion, as long as the opposition papers were timely filed." L.Civ.R. 7.1(h). Horizon Blue Cross requested and received an automatic extension until December 1, 2006, to file its opposition papers. Horizon Blue Cross timely filed its opposition papers on December 1, 2006. Under Rule 7.1(h), the cross motion was permitted to be filed on the date the opposition was due since the cross motion pertains to the same subject matter of the original motion, i.e., Horizon Blue Cross's counterclaim.
Plaintiff has not argued that the cross motion is not related to the subject matter of his motion for summary judgment. Indeed, the parties even repeat the same language in both motions. Further, the scheduling order does not specifically address the issue of when cross motions are due. Thus, the local rules apply and Horizon Blue Cross's cross motion was timely filed.
Although Horizon Blue Cross's cross motion was timely filed, the briefs filed by the other parties appear untimely. Horizon Blue Cross correctly specified on the cover of its opposition and on its cross motion that the motion date was December 15, 2006.*fn5
Pursuant to Local Rule 7.1(d)(4), plaintiff's reply, if any, to the opposition would have been due "within seven calendar days after service of the opposition papers" or, December 8, 2006. With regard to the cross motion, Local Rule 7.1(h) permits the Court to "enlarge the time for filing a brief and/or papers in opposition to the cross-motion and adjourn the original motion date." Although the cross motion was designated with a motion date of December 15, 2006, the electronic docketing indicates that a motion date was set for January 5, 2007. This enlarged the time to file opposition papers from December 8, 2006, to December 22, 2006.
The docket shows that plaintiff filed his reply in support of his motion for summary judgment on December 11, 2006, and his opposition to the cross motion on January 5, 2007. Following the local rules, both of these filings by plaintiff are untimely. Plaintiff's reply to the opposition was due December 8, not December 11, 2006, and his opposition to the cross motion (using the motion date provided by the electronic filing system) was due December 22, 2006, not January 5, 2007.
It is within this Court's discretion to dismiss any brief that has not been timely filed. L.Civ.R. 7.1(d)(7); see U.S. v. Eleven Vehicles, Their Equipment and Accessories, 200 F.3d 203, 214 (3d Cir. 2000)(concluding that local court rules play a significant role in the district courts' efforts to manage themselves and their dockets and holding that "it is not an abuse of discretion for a district court to impose a harsh result, such as dismissing a motion or an appeal, when a litigant fails to strictly comply with the terms of a local rule"); Croker v. Applica Consumer Products, No. ...