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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF MISSISSIPPISOUTHERN DIVISIONHENRY KUEHN and JUNE P. KUEHN PLAINTIFFSVERSUS No. 1:08-cv-577-LTS-RHWSTATE FARM FIRE & CASUALTY COMPANY, et al. DEFENDANTSSTATE FARM’S MOTION FOR RECONSIDERATION OF THIS COURT’S JUNE 19, 2009ORDER [72], LIMITED TO THE ISSUE OF DISINTERESTEDNESSEXPEDITED BRIEFING RESPECTFULLYREQUESTED
1. State Farm, on this urgent and necessitous matter and for good cause shown, respectfullymoves for reconsideration of this Court’s June 19, 2009 Order [72] limited to the requirement that theappraisers be disinterested, pursuant to pursuant to Fed. R. Civ. P. 59(e),
1
and for expedited briefingprior to July 22, 2008, the current date set for a hearing on “the issue of the validity of the appraisal”[72], pursuant to Local Rule 7.2(H). State Farm is entitled to reconsideration of the Court’s Order forthe following reasons and those more fully set forth in its accompanying memorandum of law and itsprior briefing,[63], [64] & [71], incorporated herein by reference.2. The Court’s June 19, 2009 Order [72] contains clear errors of law. Without reaching themerits of the issue, this Court held that “the issue of whether the appraiser appointed by the Plaintiffswas truly disinterested … is an issue properly raised in [State] Court.” [72] at 2. The policy requirementthat Plaintiffs’ appraiser, Lewis O’Leary, be disinterested is an essential element of Plaintiffs’ appraisalclaim and is properly before this Court. Plaintiffs filed this case in this Court pursuant to its originaldiversity jurisdiction. Compl. [1] ¶ 5. With Plaintiffs having invoked this Court’s diversity jurisdiction,and thus with this Court sitting in diversity, this Court is obligated to apply the same substantive law as
1
By limiting its motion for reconsideration to the issues concerning this Court’s holding that “the issue of whether theappraiser appointed by the Plaintiffs was truly disinterested … is an issue properly raised in [State] Court,” [72] at 2,State Farm is not intending to waive, and is not waiving, any other issues it may have with the Court’s June 19, 2009Order [72].
 
2would a state court.
Erie R.R. v. Tompkins
, 304 U.S. 64 (1938). The element of Plaintiffs’ appraisalclaim that Mr. O’Leary be disinterested is no less in issue before this Court than any other policyrequirement for appraisal, such as whether the appraisal improperly made causation determinations. Tohold otherwise is clear error.3. The Court’s June 19, 2009 Order [72], unless corrected, works a manifest injustice uponState Farm. Evidence of Mr. O’Leary’s admittedly zealous partiality directly refutes an essentialelement of Plaintiffs’ claim. But this Court erroneously held that this element of Plaintiffs’ claim is notproperly in issue before this Court and should be raised in state court. [72] at 2. To entirely exclude anessential element of Plaintiffs’ claim deprives State Farm the opportunity to obtain summary judgment,which would obviate the need for an evidentiary hearing. As with its erroneous exclusion on summary judgment, even if an evidentiary hearing were required to resolve a factual dispute on this issue (andthere is none), excluding an essential element of Plaintiffs’ claim will render the proceedings before thisCourt fundamentally flawed and incomplete. Further, due process requires that State Farm be afforded afull opportunity to present every available defense, both at the summary judgment stage and at anevidentiary hearing. This Court’s holding that the issue of Mr. O’Leary’s admitted partisanship is notbefore this Court and should be raised in state court, [72] at 2, is contrary to
Erie
, deprives State Farmthe opportunity to present a dispositive defense to an essential element of Plaintiffs’ appraisal claim atsummary judgment and at an evidentiary hearing, and deprives State Farm of due process. Thus, theJune 19, 2009 Order [72] obliges State Farm to defend itself against Plaintiffs’ claim with one hand tiedbehind its back.4. This Court should alter its June 19, 2009 Order [72] to (i) recognize that it has jurisdiction over all the policy provisions controlling appraisal, including disinterestedness, (ii)recognize that Plaintiffs freely admitted that Mr. O’Leary was their zealous advocate during the
 
3appraisal, contrary to the disinterestedness requirement of the policy, and (iii) grant State Farm’s motionfor summary judgment [63].5. Pursuant to Local Rule 7.2(H), State Farm respectfully moves that this Court set anexpedited briefing schedule on this motion, prior to July 22, 2008, the date set for a hearing on “the issueof the validity of the appraisal.” [72].Dated: July 1, 2009Respectfully submitted,
 /s/ John A. Banahan 
John A. Banahan (MSB #1731)H. Benjamin Mullen (MSB #9077)B
RYAN
, N
ELSON
,S
CHROEDER
,C
ASTIGLIOLA
& B
ANAHAN
1103 Jackson AvenuePascagoula, Mississippi 39567(228) 762-6631H. Scot Spragins (MSB # 7748)H
ICKMAN
, G
OZA
& S
PRAGINS
,PLLCPost Office Drawer 668Oxford, Mississippi 38655-0668(662) 234-4000
 Attorneys for Defendant State Farm Fire and Casualty Company
of 00

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