Brown v. Estate of Laurie, 2018 ONSC 3071

COURT FILE NO.: 2659/16

DATE: 20180622

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brad Jeffrey Brown

Plaintiff (Defendant by Counterclaim)

– and –

Donna Laurie, personally, and Donna Laurie in her capacity as personal representative of the Estate of Lachlan Laurie

Defendants (Plaintiffs by Counterclaim)

J. Nicholson, counsel for the plaintiff (defendant by counterclaim)

I. Wallace, counsel for the defendants (plaintiffs by counterclaim)

HEARD: February 21, 2018

McArthur, M.D. J.

Introduction

1The plaintiff, Brad Jeffrey Brown, and Lachlan Laurie went into a retail jewelry business together. Within a year, Mr. Laurie was diagnosed with brain cancer and died after a few short months. In addition to other things, each had obtained insurance on the life of the other. After Mr. Laurie’s death, the plaintiff’s counsel received insurance proceeds and placed them in trust pending this decision.

2The plaintiff seeks summary judgment against the defendants for:

a. an order declaring the plaintiff is entitled to the proceeds of a life insurance policy on Mr. Laurie’s life;

b. judgment on a promissory note of $42,000 signed by Mr. Laurie in favour of the plaintiff; and

c. an order dismissing the defendant’s counterclaim.

3The defendants seek by counterclaim:

a. a mandatory order requiring the plaintiff to purchase the shares of 1079597 Ontario Limited owned by the Laurie estate for $250,000 plus interest;

b. an order that the defendants are entitled to the insurance proceeds by virtue of an agreement between Mr. Laurie and the plaintiff that they were to go to the Laurie estate; or in the alternative,

c. an order that the defendants are entitled to the insurance proceeds of $250,000 by virtue of a constructive trust.

The Proceedings

4In November 2016, the plaintiff commenced this proceeding. Pleadings have been served and filed.

5In support of the relief each has sought on this motion, the parties filed and the court has reviewed the affidavits of Mr. Brown sworn April 3, 2017, December 7, 2017 and December 20, 2017; the affidavits of Donna Laurie sworn May 24, 2017 and November 23, 2017; and the transcripts of the examinations of both Donna Laurie and the plaintiff.

General Factual Background

6Brad Brown and Lachlan Laurie were longtime friends. Mr. Brown had substantial past experience and owned and operated a jewelry business with assets and inventory. He proposed to operate the new venture with Mr. Laurie under a dormant company 1079597 Ontario Limited. This company had once been owned by Mr. Brown’s parents but Mr. Brown purchased their shares in 2015 for $1.00.

7By June of 2014, Mr. Brown and Mr. Laurie were taking steps to enter into a business arrangement to operate a jewelry business. From the discussions that took place, some notes and writings were made in written and/or typed form.

8Each was to have a 50 percent interest in the business. According to Mr. Brown the share purchase price to be paid was $92,000.00 comprised of $50,000 up front and the remainder secured by a promissory note of $42,000.00. This amount was determined by taking the gross total value of $283,173 less the amount of $52,000 owed to suppliers, leaving a net value of $186,173. This amount was then divided by 2 and rounded down to the amount of $92,000.

9On June 10, 2014, both parties made applications for insurance on the other with those policies being issued on July 7, 2014. Each obtained term life insurance on the other in the event of their death.

10Subsequently on July 15, 2014, 1079597 Ontario Limited executed a property lease for the business operations. Mr. Brown personally guaranteed the lease.

11On July 16, 2014, Mr. Brown and Mr. Laurie signed a share purchase agreement that was prepared by a lawyer they jointly retained. The company, 1079597 Ontario Limited, was also a party to the agreement. The purchase price was shown to be $50,000. No buy-sell provisions or any other terms regarding insurance was referenced in the agreement.

12On July 21, 2014, a promissory note of $42,000 from Mr. Laurie in favour of Mr. Brown was signed. Mr. Brown explains this was the balance of the total purchase price of $92,000 owing by Mr. Laurie and that the lawyer erroneously showed $50,000 as the purchase price in the share purchase agreement.

13The parties began operating a store together known as Richmond Diamonds Fine Jewellers in downtown London.

14Mr. Laurie subsequently loaned money to the business and paid other business costs, totalling approximately $34,352.00.

15In early 2015, Mr. Laurie was diagnosed with brain cancer. His condition was not treatable and his health declined rapidly. On May 26, 2015, Mr. Laurie married the defendant, Donna Laurie with whom he had lived since 2009.

16On May 31, 2015, Mr. Laurie sent an email to Mr. Brown specifically regarding the insurance policy. Mr. Brown replied to Mr. Laurie as will be reviewed more fully in this decision.

17Ms. Laurie refused to provide the consents for BMO to obtain the medical records of Mr. Laurie without the purchase of the 50 percent of Mr. Laurie’s shares being dealt with first. It was ultimately agreed by the parties that consents would be provided and the proceeds of the insurance policy were paid to the plaintiff’s lawyer and held in trust pending the decision in this case.

The Issues

18The issues in this proceeding involve determining who is entitled to the insurance proceeds, the validity of the promissory note, whether a constructive trust is established and whether they raise genuine issues requiring a trial.

The Position of the Parties

19The plaintiff requests summary judgment for the insurance proceeds and the promissory note and dismissal of the defendants’ counterclaims on the basis that there are no genuine issues requiring a trial.

20The defendants submit that summary judgment is premature, there are factual issues in dispute and conflicts in the evidence requiring trial.

21The defendants also brought a motion to amend their counterclaim to assert a claim to the insurance proceeds based on a constructive trust and seek judgment on that claim. They say that there was a buy-sell agreement in place that requires Mr. Brown to pay Ms. Laurie $250,000.

The Law

Summary Judgment

22Summary judgment motions are governed by Rule 20.04 which states:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;…

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence

2. Evaluating the credibility of a deponent

3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

23The leading case on summary judgment is Hryniak v. Mauldin, 2014 SCC 7. At para. 66, Karakatsanis J. for the court wrote:

On the motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

24Thus, the judge hearing the summary judgment motion must ask:

1. On the basis of the evidentiary record alone, are there genuine issues that require a trial?

2. Does the evidentiary record provide the evidence needed to “fairly and justly adjudicate the dispute”?

25In Hryniak, the test for summary judgment was stated at para. 49 as follows:

“There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

26The onus of establishing that there is no genuine issue requiring a trial rests on the moving party. Where the moving party establishes that there is no genuine issue requiring a trial, the evidentiary onus shifts to the responding party to establish that there is a genuine issue requiring a trial: Sweda Farms Ltd. v. L.H. Gray & Son Ltd., 2014 CarswellOnt 11926 (ON CA) at para. 26; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC CarswellOnt 913 at para. 12.

27A responding party must set out in affidavit material or other evidence the specific facts that establish that there is a genuine issue requiring a trial. The responding party cannot rest on mere denials of allegations of a party’s pleading: Sweda, para. 27. It is not enough to allude to evidence that may be adduced in the future. A party must put its best foot forward, lead trump or risk losing: Sweda, para. 28.

28The judge hearing the motion must:

1. determine the motion on the pleadings and evidence actually before the court on the motion. The judge is entitled to assume that the record contains all the evidence that would be adduced at trial; and

2. take a hard look at the evidence and the merits of the action at this preliminary stage: Sweda, paras. 26-28.

Partial Summary Judgment

29Where a party seeks partial summary judgment, the motion judge must assess the advisability of the summary judgment process in the context of the litigation as a whole: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at paras. 35. The motion judge must consider whether the factual findings necessary to determine the motion are so intertwined with the remaining issues that those determinations on the motion risk inconsistent findings later and substantive injustice: Baywood Homes Partnership, para. 37. Given what remains to be determined, it may be more fair, efficient and just for those findings to be made once in the context of the trial.

30In R. v. Butera, 2017 ONCA 783 the Ontario Court of Appeal reviewed the appropriateness of partial summary judgment in the situations of resolving a case on conflicting evidence and the dangers of inconsistent findings. The court reiterated its earlier direction in Corchis v. KPMG Peat Marwick Thorne, 2002 CanLII 41811 (ON CA), [2002] O.J. No. 1437 (C.A.) that partial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. The court observed that if this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.

Contract Law Principles

31It is trite law that for an agreement to be enforceable, they must have reached agreement on all essential terms and must so express themselves that their meaning can be determined with a reasonable degree of certainty. If the parties have not reached a sufficient consensus ad idem, meeting of minds, there can be no enforceability. See The Law of Contracts, John D. McCamus, page 91.

32Further, there must be a communication of the parties’ intention by means of outward expression. It is necessary to show an intention on the party to be charged to agree and to show an expression of that intention. An inward intent will not be sufficient. The test is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. See G.H.L. Fridman, the Law of Contract in Canada (4th edition) pages 15 and 16.

Analysis

The Insurance Policies

33Mr. Brown and Mr. Laurie obviously contemplated life insurance coverage involving their respective interests in entering the business arrangement.

34The first documented reference to insurance is contained in an undated typewritten note prepared by Mr. Laurie (Exhibit A to Mr. Brown’s affidavit sworn April 3, 2017). This is clearly a note involving matters at a preliminary stage of discussions between the parties. A first point states: “Life insurance on partners to cover investments as discussed”. An accompanying handwritten reference indicates different amounts of insurance on the other.

35On June 3, 2014, Mr. Brown and Mr. Laurie contacted Mike Smolders, an insurance agent. Mr. Smolders’ evidence is contained in a single page memo that he wrote (Exhibit A to the affidavit of Donna Laurie sworn May 24, 2017). The pertinent entry is as follows:

Extensive discussion on buy/sell … explained buy/sell pays off surviving spouse of partner should something happen … wrote both BMO policies on each – Brad’s coverage for more to cover inventory (125k) that he’s bringing into the business. Lachlan for 250k.

36On June 10, 2014, Mr. Brown and Mr. Laurie each completed and signed insurance policy applications with Mr. Smolders for BMO Insurance: Mr. Brown for $250,000 coverage in the event of the death of Mr. Laurie and Mr. Laurie for $375,000 coverage in the event of the death of Mr. Brown. The former policy is that from which the insurance proceeds were paid.

37Section 11.2 on both applications is identical except for para. 8 as to details of business insurance on other members of the business. In the application on the life insured being the plaintiff, Mr. Smolders wrote: “as is a buy/sell – same but face amount is 250,000”. In the application with the life insured being Lachlan Laurie, Mr. Smolders wrote: “a buy/sell for $375,000 applied on partner”.

38The plaintiff has explained that the reason for this insurance and the higher amount was largely because, in addition to the inventory he was bringing into the business, he would be guaranteeing the lease and assuming other obligations including inventory. This is supported by the reply the plaintiff later makes to Mr. Laurie specifically regarding the insurance. This explanation is reasonable and consistent with prior acts of the parties and likewise consistent with the basis to continue to take steps to finalize the deal between the parties.

39The insurance policies with BMO Insurance were issued on July 7, 2014.

40On July 16, 2014, a share purchase agreement drafted by a lawyer who the parties jointly retained was signed by Mr. Laurie, the plaintiff and the 1079597 Ontario Limited. The agreement records the purchase price to be $50,000. There is no reference to any insurance funding that would bind the company or the individual parties in any way involving insurance payments, proceeds or any other insurance matter. Neither is there reference to the promissory note. This will be addressed further in this decision.

41In relation to the insurance policies and proceeds, the attachment to the email from Mr. Laurie to the plaintiff on Monday, May 31, 2015 is significant. By this date, Mr. Laurie was aware of his serious health condition and he specifically outlines:

I have put a great deal of careful thought and consideration into how we can wind down the business side of my affairs. I am hoping that while I am still partner and before I start the battle of my life, we would be lucky enough to have a good run on things at the store so we could have the buyout at an even $50K. For the life insurance, you have the opportunity to be the biggest hero in a bad, unfortunate situation. I can take credit for pushing the idea of the life insurance policies, but you can follow through on rightness and fairness of outcome without un-benefiting yourself and the company. I obviously got the short straw but both our families can benefit a win/win on this equation. Regarding the life policy which unfortunately for me is going to be paid out, my feelings would be that in fairness you would take the initial $50K to directly offset the funds required to settle up the partnership and allow you to continue on as a solo businessman, this includes 100% of the inventory back to you and you would have no spouse/estate to deal with. Then my feeling for fairness for both our families and the survivors of my family the balance of $200K split in half. My wish would be that you would use your $100K to promote and invest in the business and carry it forward and make it the success that we both were working toward obtaining. It would give me great peace of mind to know that the other $100K would be used to do something really good for my wife and daughter, putting them in a better position of stability for them to move forward with their lives after I am physically gone from the planet and off into the cosmos. I know that you know if things were reversed that my integrity and fairness would come to the forefront in my dealings with your family and that I would be equally generous and fair with them without question.

42The clear and obvious inference from this acknowledgement is that Mr. Laurie did not have a subjective belief that there was a buy-sell agreement requiring payment of the insurance proceeds for the shares. Additionally, Mr. Laurie’s words “be the biggest hero” and “generous” are inconsistent with a buy-sell agreement being in existence at any time.

43Also notable is Mr. Brown’s email reply dated September 10, 2015 in which he indicates clearly:

…you are asking for something the insurance was not intended for as it was meant to be used to help the business in case of a catastrophic event and the amount of coverage if you remember back was chosen because of the amount of the lease that was signed for the store and I alone was the only one willing to sign the personal guarantee…

This is consistent with no buy-sell agreement existing as well as no agreement by either party to purchase the shares of the other. It would also make no commercial sense to have the purchase of shares arranged without no regard for their value.

44I am mindful of Donna Laurie’s evidence respecting her discussions with Mr. Laurie. She says he told her that all of the life insurance proceeds were to be paid to her regardless of the value of the 50 percent of Mr. Laurie’s shareholdings. This evidence is hearsay with respect to Mr. Laurie’s intention when he was arranging life insurance. It is inadmissible. And it is not admissible otherwise, either by way as a traditional hearsay exception or on the principled basis. It is necessary but is not reliable and does not possess the other circumstantial guarantees of reliability. Even if it is admissible, at its highest it was Ms. Laurie’s understanding and does not raise a genuine issue requiring a trial.

45In any event, Mr. Laurie’s initial purchase price for the business shares was a minimum of $50,000. It simply does not make any sense that life insurance of $250,000 would be obtained amounting to coverage five times the actual initial value of those shares.

46Counsel for the Laurie Estate submitted that the facts support the inference that there was a simple buy-sell agreement as evidenced by Mr. Smolders’ note. I disagree. Mr. Smolders’ note supports the only reasonable inference: that a buy-sell agreement never advanced beyond initial discussions.

47Simply put, for a contract to exist, there must be a meeting of the minds on, among other things, the essential terms which can be determined with reasonable certainty. The law is not concerned with a party’s subjective intentions but only with their manifest intentions as revealed objectively by their actions.

48The evidentiary burden is on the Estate to show a genuine issue requiring a trial on the issue of whether there was a contract governing the payment of life insurance proceeds. When considering the note of Mr. Smolders in the context of the totality of the evidence, this court finds that there is no genuine issue requiring a trial in relation to entitlement to the proceeds. Neither have the defendants raised a genuine issue respecting the existence of a buy-sell agreement. The evidentiary record does not demonstrate that the proceeds of insurance were to fund the purchase of the shares or that either party was otherwise contractually obligated to do so. On this evidence the Estate has not led evidence to show a genuine issue.

49I find there was term life insurance on the other personally and nothing more. There was also no agreement or contract between the plaintiff and Mr. Laurie that the proceeds of life insurance were to go to the Laurie Estate.

50I also agree with plaintiff’s counsel and find on the evidence before me that any payment of the insurance premium made on the numbered company’s cheque was a payment that was credited toward the plaintiff’s draw or compensation from the business. This is the most sensible inference to make in these circumstances and leads to a finding that no trust or other obligation was created through the company, 1079597 Ontario Limited with either the plaintiff or Mr. Laurie. At no point was the numbered company the owner or applicant for life insurance nor did there exist any other indications that the company was to receive insurance proceeds or to be in any way involved with insurance proceeds.

51The defendants submit that they are entitled to the insurance proceeds by virtue of a constructive trust on the basis that the plaintiff would be unjustly enriched or receive wrongful gain if he receives the life insurance proceeds.

52To establish a constructive trust, the defendants must prove that the Mr. Laurie was wrongfully deprived of his rights that Mr. Brown should not possess due to unjust enrichment, interference or due to a breach of a fiduciary duty by the plaintiff.

53I find that the there is no deprivation to the Laurie estate nor did Mr. Brown possess trust monies due to unjust enrichment, interference or breach of fiduciary duty. Mr. Brown received insurance funds as the parties jointly anticipated from the outset.

54Furthermore, there is no basis to find any wrongful conduct by the plaintiff that could give rise to a juristic reason supporting a finding of unjust enrichment. On the totality of the evidence, I find that the plaintiff’s conduct does not provide the basis for any trust claim by the defendants to the insurance proceeds.

55Summary judgment must issue in the plaintiff’s favour regarding the insurance proceeds. Accordingly, there shall be a declaration that the insurance funds now held in trust by Cohen, Highley belong to the plaintiff, and are to paid to him.

The Promissory Note

56The promissory note was signed by the parties on July 21, 2014, only five days after the date that the share purchase agreement was signed.

57Although consistent with the evidence tendered by the plaintiff as to the calculation of its value, there is no reference to a promissory note in Mr. Laurie’s note attached as Exhibit A to the affidavit of Mr. Brown sworn April 3, 2017. Likewise, the share purchase agreement dated July 16, 2016 records the purchase price as $50,000. There is no reference to a promissory note or other consideration.

58The promissory note at issue is dated July 21, 2014. A separate typewritten note of the same date and initialed by the plaintiff and Mr. Laurie provides an explanation for the promissory note. However, unlike the promissory note that was witnessed by Mr. Brown’s wife, there was no witness to the explanatory note, which mentions the obvious discrepancy in the share purchase agreement completed only five days earlier. The note also says “the 50 percent ownership as shown in the minute book” which clearly was not the case at that time. The absence of a witness to this document is unexplained. The surrounding circumstances call out for an explanation. Overall, there remains a substantial incoherence in the evidence about the promissory note, particularly in view of the share purchase agreement drafted by a lawyer some five days earlier.

59Counsel for the defendants also referred to amounts in the company’s financial statements as of October 31, 2015 and how these did not square up with or support the amounts in the promissory note. An explanation for the figures shown in the share purchase agreement might be offered by the professionals who prepared the statements. However, neither the lawyer retained jointly nor the accountant provided evidence on the motion.

60There is simply inadequate evidence respecting consideration underlying the promissory note. The evidence on the motion is insufficient to support a finding of fact that it was a valid and enforceable promissory note.

61On this record and in respect of the promissory note, there is a genuine issue as to the validity and enforceability of the promissory note that requires a trial. There is a need in these circumstances to hear from the lawyer and possibly the accountant that will require a trial on order to properly weigh the evidence and draw inferences from the evidence overall as it involves the promissory note. This would require at most one-and-a-half days including the calling of evidence and making submissions in the circumstances.

62I decline to grant the plaintiff summary judgment regarding the promissory note and this claim shall be referred onto trial in this respect.

Partial Summary Judgment

63I am mindful of the dangers and concerns as otherwise expressed in cases like R. v. Butera, supra, that reference other cases where there were risks of duplicative or inconsistent findings at trial should partial summary judgment be granted. Considering the context of the litigation as a whole here, the dangers of duplicative or inconsistent findings do not arise here despite there being a genuine issue in relation to the promissory note.

64Counsel for the Estate submitted forcefully that summary judgment in relation to the insurance proceeds was not appropriate since two very different stories existed and that credibility was in issue where the other material issues arose involving the transfer of shares, the insurance entitlement and the promissory note. I do not agree with counsel for the Estate’s interpretation on the basis of the evidence presented. Conflicts will be apparent in many situations. However, not every apparent conflict necessitates at trial. The mere fact of some conflict in the interpretation of some unrelated and peripheral facts or issues ought not to be used to distract the court from the central issues. In any event, the determination as to the insurance proceeds entitlement here is not on the basis of credibility, nor a mere conflict in the evidence but rather on the documentary records. Simply put, there is no genuine issue requiring a trial in regard to the insurance proceeds.

Counterclaims by the Defendants

Defendant entitlement to insurance proceeds by agreement

65As already determined, no agreement was established entitling the defendant estate or Donna Laurie to the insurance proceeds.

Plaintiff to purchase Estate’s shares for $250,000

66I have also determined that there was no agreement that existed between the plaintiff and the deceased defendant estate to require the plaintiff to purchase the shares of the survivor in event of death.

Irregularities with corporate minute book

67Counsel for the Laurie Estate submitted that the plaintiff never had a legal interest in the shares of the numbered company and, accordingly, he could not sell what he did not have. Counsel submitted that the plaintiff breached his duty as a director to keep records and update the corporate minute book as required by s. 141 Ontario Business Corporations Act. As a result, counsel contends that the transaction was voidable at the option of the buyer.

68The only rational inference that can be made on the evidence is that the plaintiff became the sole director and officer of the inactive numbered company by resolution dated May 19, 2011. The fact that the shares had not been formally transferred was not discovered until after litigation commenced. This oversight was corrected by resolutions in 2017 that were back dated to January 31, 2013.

69I find that this does not reflect negatively on the plaintiff overall since it was clearly done to correct an oversight and for no improper purpose. In any event, this is irrelevant to the analysis with respect to the entitlement to the insurance proceeds.

70Furthermore, 1079597 Ontario Limited was a party to the share purchase agreement dated July 16, 2014 along with the plaintiff and Mr. Laurie. In para. 5(a) the vendor/plaintiff warranted that he was the beneficial owner of the purchased shares free of any claims. In para. 7(a) the Corporation consented to the transaction and agreed to take steps to enter the transfer of shares on the books of the Corporation. I find that the failure to complete the documents in the corporate minute book does not invalidate the agreement.

71Even if the share purchase agreement was void, the plaintiff and Mr. Laurie would have still have had a pecuniary and insurable interest in one another. The entitlements under the insurance policy are unaffected.

Summary and Conclusion

72In summary, there shall be:

a. an order declaring the plaintiff is entitled to the proceeds of a life insurance policy which insured the life of Lachlan Laurie; and

b. an order that the plaintiff’s claim as to the validity and enforceability of the promissory note of $42,000 shall proceed to trial.

73The trial as to the promissory note shall proceed over the course of 1.5 days. The plaintiff and the defendants shall schedule a pretrial conference through the trial co-ordinator to determine the witnesses and evidence to be called and the general procedure and related matters.

74If the parties cannot agree as to costs of the motion within 30 days of the date of this decision, the parties can make written submissions respecting costs with the plaintiff serving on the defendants and filing submissions on or prior to the 30th day from the decision and the defendants serving and filing submissions on or before 10 days from receipt of the plaintiff’s submissions.