10431 Avondale Road NE LLC v. Comcast Cable Communications, LLC, et al.

• Court: District Court, W.D. Washington
• Decided: April 27, 2026
• Docket: 2:25-cv-01553
• Status: Unknown

Opinion

1 The Honorable Barbara J. Rothstein

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 NO. 25-cv-1553-BJR 10431 AVONDALE ROAD NE LLC, 8 ORDER GRANTING MOTION TO Plaintiff, DISMISS 9 v. 10 COMCAST CABLE COMMUNICATIONS, 11 LLC, et al.,

12 Defendants.

13 I. INTRODUCTION 14 This case is one in a series of cases filed by Plaintiff, 10431 Avondale Road NE LLC 15 (“Avondale”), against Defendants, Comcast Cable Communications, LLC, and Comcast Cable 16 Communications Management, LLC, (collectively “Comcast”), relating to a dispute over easement 17 rights. The result is an unnecessarily complex set of cases in both state court and federal court. Now 18 pending before the Court is Comcast Defendants’ Motion to Dismiss, or Alternatively, for 19 Judgment on the Pleadings or Summary Judgment, ECF No. 21, and two related motions filed by 20 Avondale for judicial notice, ECF Nos. 42, 57. Having reviewed the materials,1 the record of the 21 22 1 Including the motion, ECF No. 21, Avondale’s response in opposition, ECF No. 39; Comcast’s reply, ECF No. 43; 23 Avondale’s motion for judicial notice, ECF No. 42; Comcast’s response in opposition, ECF No. 54; Avondale’s reply,

24 ORDER GRANTING MOTION TO DISMISS 1 case, and the relevant legal authorities, the Court will grant Comcast’s motion.2 The reasoning for 2 the Court’s decision follows. 3 II. BACKGROUND 4 A detailed background of this case, which includes related cases, is necessary to set a context 5 for this Court’s ruling. 6 A. The First Case 7 Avondale first sued Comcast on July 17, 2023. King County Superior Court Cause No. 23- 8 2-12790-1 SEA (“First Case”), Fisher Decl. Ex. A, ECF No. 22-1; Yoke Decl. Ex. A, ECF No. 40. 9 Avondale challenged a 1999 easement and 2000 easement amendment that supports a Comcast 10 communications hub. Id. Avondale asserted seven causes of action: (1) declaratory relief; (2) quiet 11 title/ejectment; (3) breach of contract; (4) unjust enrichment; (5) trespass; (6) damage to land and 12 property (RCW 4.24.630); and (7) inverse condemnation (RCW 8.20.170). Id. Comcast responded 13 with a counterclaim for prescriptive easement. Fisher Decl. Ex. B, ECF No. 22-2. On cross-motions 14 for partial summary judgment, the state court found that the 1999 easement and 2000 easement 15 were enforceable, the contractual claims were untimely, damages under an unjust enrichment theory 16 were unavailable, and the inverse condemnation claim was dismissed with prejudice. Fisher Decl. 17 Exs. D, E, ECF Nos. 22-4, 22-5. Comcast asserts that if its second dispositive motion had been 18 granted, it would have disposed of most of the remaining issues, but four days before the hearing 19 on the motion, Avondale unilaterally and voluntarily dismissed all its claims in the First Case, 20 leaving only Comcast’s state-law counterclaims. Mot. 4 (citing Fisher Decl. Exs. H-J, ECF Nos. 21

22 ECF No. 56; Avondale’s second motion for judicial notice, ECF No. 57; Comcast’s response in opposition, ECF No. 66; to which no reply was filed; and more than a thousand pages of supporting declarations, exhibits, and documents. 2 Also pending is Plaintiff’s amended motion for partial summary judgment, ECF No. 83, which will be denied as 23 moot.

24 ORDER GRANTING MOTION TO DISMISS 1 22-8–22-10). On May 19, 2025, the state court issued an order granting Avondale’s motion for 2 dismissal of all claims pursuant to Washington Civil Rule 41 (a)(1)(B). Fisher Decl. Ex. J. 3 B. The Second Case 4 Avondale’s second suit against Comcast was filed on May 6, 2025. King County Superior 5 Court Cause No. 25-2-13814-3 SEA (“Second Case”), Fisher Decl. Ex. K, ECF No. 22-11; Yoke 6 Decl. Ex. Q, ECF No. 40; King County Superior Court Records Access Portal (https://dja-prd- 7 ecexap1.kingcounty.gov/node/420?id=5420720). Avondale challenged the same easements and 8 asserted 9 causes of action: (1) declaratory relief; (2) violation of Redmond Municipal Code 9 (“RMC”) 5.60.230(E); (3) violation of RMC 12.14.510; (4) violation of RMC 12.14.750; (5) 10 abatement of a nuisance (RCW 7.48); (6) breach of contract; (7) unjust enrichment; (8) damage to 11 land and property (RCW 4.24.630); and (9) violation of RCW 59.04.050. Id. Comcast observes that 12 the Second Case was almost identical to the First Case, involving the same parties and “share[d] 13 common issues of law and fact.” Mot. 4. On June 17, 2025, the state court granted Comcast’s 14 motion for consolidation of the Second Case with Comcast’s counterclaims from the First Case and 15 the consolidated case was assigned back to the judge supervising the First Case. Fisher Decl. Ex. 16 L, ECF No. 22-12. On August 14, 2025,3 without notice, Avondale moved to voluntarily dismiss 17 its claims in the Second Case pursuant to Wash. Civil Rule 41(a). Fisher Decl. Ex. R, ECF No. 22- 18 18. The motion was granted. Fisher Decl. Ex. S, ECF No. 22-19; Yoke Decl. Ex. R, ECF No. 40. 19 Upon dismissal without prejudice, Comcast moved for partial reconsideration or modification of 20 the dismissal order, asserting that it should be entered “with prejudice” because Avondale had 21 previously filed and voluntarily dismissed the same claims in a prior action, it planned to file a third

22 3 The Court notes that the date on the motion is May 14, 2025, but the date filed is August 14, 2025. Fisher Decl. Ex. 23 R, ECF No. 22-18.

24 ORDER GRANTING MOTION TO DISMISS 1 case, and it was evading paying almost $60,000 in discovery sanctions. Fisher Decl. Ex. T, ECF 2 No. 22-20. The motion remains pending because Avondale removed the counterclaims in the First 3 Case to this Court, which the state court determined divested it of jurisdiction to take any further 4 actions. See Fisher Ex. U, ECF No. 22-21 (“[A]bsent further direction by the federal court, this 5 Court cannot weigh in on a matter that may be part of a cause that was removed to federal court.”). 6 C. The Third Case 7 On August 14, 2026, the same day that Avondale voluntarily dismissed its claims in the 8 Second Case, Avondale filed this case in this Court, asserting the same claims it had just dismissed 9 in the Second Case. See Compl., ECF No. 1 (adding a 10th cause of action—violation of 47 U.S.C. 10 § 541(a)(2)) (“Third Case” or “this case”). Avondale amended its complaint on September 9, 2026, 11 to add the MasTec Defendants4 to this case. Am. Compl., ECF No. 6. Comcast has filed a motion 12 to dismiss in this case, based on the doctrines of res judicata and Washington’s two-dismissal rule. 13 D. The Fourth Case 14 On August 15, 2026, one day after voluntarily dismissing its claims in the Second Case and 15 filing the Third Case, Avondale removed Comcast’s state-law counterclaims in the First Case to 16 this Court. Removal Notice, ECF No. 1 in Case No. 25-cv-01557-BJR (“Fourth Case”). After 17 removal, Avondale filed 14 volumes of state court records, a third-party complaint against the 18 MasTec Defendants, and its purported “counterclaims-in-reply” against Comcast, asserting the 19 same easement-challenging claims against Comcast in the Fourth Case. See Third-Party Compl., 20 ECF No. 22 in Case No. 25-cv-01557-BJR. Comcast moved to remand the case back to King 21 22 4 MasTec Services Company, Inc., MasTec Network Solutions, Inc., MasTec Network Solutions, LLC, MasTec North 23 America, Inc., and MasTec, Inc. (“MasTec Defendants”). Am. Compl., ECF No. 6.

24 ORDER GRANTING MOTION TO DISMISS 1 County Superior Court. Mot. Remand, ECF No. 28 in Case No. 25-cv-01557-BJR. This Court 2 granted Comcast’s motion, remanded the case to King County Superior Court, and granted 3 Comcast’s request to file a motion for fees related to the improper removal. Remand Order, ECF 4 No. 55 in Case No. 25-cv-01557-BJR. 5 III. LEGAL STANDARD 6 Although Comcast does not cite Federal Rule of Civil Procedure 12(b)(6) in arguing for 7 dismissal on res judicata grounds, the Court construes Comcast’s motion under this rule rather than 8 under Rule 12(b)(1).5 See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005) 9 (“Preclusion, of course, is not a jurisdictional matter.”); Fed. Rule Civ. Proc. 8(c) (listing res 10 judicata as an affirmative defense); see also Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) 11 (per curiam) (“Ordinarily affirmative defenses [such as res judicata] may not be raised by motion 12 to dismiss . . . but this is not true when, as here, the defense raises no disputed issues of fact.”). 13 A motion to dismiss for failure to state a claim under Rule 12(b)(6) is properly granted if 14 the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief 15 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 16 v. Twombly, 550 U.S. 544, 570 (2007)). “A complaint may fail to show a right to relief either by 17 lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal 18 theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). When considering a 19 motion to dismiss under Rule 12(b)(6), courts must accept the factual allegations in the complaint 20 as true and construe such allegations in the light most favorable to the plaintiff. Interpipe 21 Contracting, Inc. v. Becerra, 898 F.3d 879, 886-87 (9th Cir. 2018).

22 5 Comcast moved to dismiss under Rule 12(b)(1), or alternatively for judgment on the pleadings under Rule 12(c) 23 and/or summary judgment under Rule 56. Mot. 8.

24 ORDER GRANTING MOTION TO DISMISS 1 Typically, a court may not consider material beyond the pleadings in ruling on a Rule 2 12(b)(6) motion. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, 3 however, consider certain materials—documents attached to the complaint, documents 4 incorporated by reference in the complaint, or matters of judicial notice—without converting the 5 motion to dismiss into a motion for summary judgment.” Id. at 908. 6 IV. DISCUSSION 7 A. Requests for judicial notice 8 Avondale has filed two requests for judicial notice. ECF Nos. 42, 57. The first request 9 includes the voluntary dismissal order, which was already included in Comcast’s declaration 10 accompanying this motion, and in Avondale’s declaration accompanying the response in opposition 11 to this motion. ECF No. 42, Ex. A. It also includes a filing made in the First Case in response to 12 Avondale’s motion to continue trial. Id., Ex. B. Comcast does not object to the Court’s 13 consideration of the fact of the filings but does object to Avondale’s additional arguments 14 concerning the significance of the filings and asks the Court to strike the additional arguments. ECF 15 No. 54. Avondale’s second request also includes several excerpts of documents filed by both 16 Avondale and Comcast in the First Case. ECF No. 57. Comcast’s response in opposition mirrors its 17 opposition to the first request—the filings are not objectionable, but Avondale’s additional 18 arguments are objectionable. ECF No. 66. 19 Under Federal Evidence Rule 201, a court can judicially notice an adjudicative fact if it is 20 “not subject to reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable 21 dispute” if it is “generally known,” or “can be accurately and readily determined from sources

22 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). A court “must take 23

24 ORDER GRANTING MOTION TO DISMISS 1 judicial notice if a party requests it and the court is supplied with the necessary information.” Fed. 2 R. Evid. 201(c)(2). The requested documents from the related lawsuits are proper subjects for 3 judicial notice. Since judicial notice of the existence of court records is routinely accepted, the 4 requests for judicial notice are granted as to the existence of the records but not as to the truth of 5 their contents. See, e.g., Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) 6 (“Just because the document itself is susceptible to judicial notice does not mean that every assertion 7 of fact within that document is judicially noticeable for its truth.”); Reyn’s Pasta Bella, LLC v. Visa 8 USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking notice of court filings and other matters of 9 public record);.Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (noting that a court 10 may take judicial notice of another court’s opinion, but not of the truth of the facts recited therein). 11 The Court declines to consider either Avondale’s or Comcast’s additional arguments made

12 in the judicial notice filings. 13 B. Washington’s two-dismissal rule 14 Comcast moves for dismissal of this case on the grounds that Avondale twice asserted and 15 voluntarily dismissed its claims against Comcast, and the claims were either the same claims or 16 were based on the same facts. Mot. 10. Comcast asserts that under these circumstances, Avondale’s 17 claims are barred by res judicata because Washington’s two-dismissal rule specifies that if a 18 plaintiff has previously dismissed an action in any court based on the same claim, a subsequent 19 notice of dismissal operates as an adjudication on the merits. Id. (citing Feature Realty, Inc. v. 20 Kirkpatrick & Lockhart Preston Gates Ellis, LLP, 161 Wn.2d 214, 224 (2007), and Vines v. City of 21 Black Diamond, 2021 WL 2036711, at *1–3 (W.D. Wash. May 21, 2021)). 22 23

24 ORDER GRANTING MOTION TO DISMISS 1 In Feature Realty, the Washington Supreme Court held that the “two-dismissal rule” under 2 Washington Civil Rule 41(a)(4) operates as an adjudication on the merits. 161 Wn.2d at 224. 3 Washington Civil Rule 41(a)(4) states: 4 Unless otherwise stated in the order of dismissal, the dismissal is without prejudice, except that an order of dismissal operates as an 5 adjudication upon the merits when obtained by a plaintiff who has once dismissed an action based on or including the same claim in 6 any court of the United States or of any state. 7 (emphasis added). The rule “applies automatically to unilateral dismissal by the plaintiff and ‘does 8 not provide for court discretion to look into the reasons for the dismissal.’” Noel v. Lakewood, 196 9 Wn. App. 1070 (2016) (quoting Guillen v. Pierce Cnty., 127 Wn. App. 278, 285 (2005)). 10 In the First Case, Avondale’s motion clearly states; “Pursuant to CR 41(a)(1)(B), Plaintiff 11 10431 Avondale Road NE LLC (“Plaintiff”) gives notice that it is exercising its right to voluntarily 12 dismiss the claims in this case without prejudice.” Fisher Decl. Ex. I, ECF No. 22-9. And the order 13 entered by the superior court is titled “Order Granting Plaintiff’s Motion for Dismissal of All 14 Claims Pursuant to CR 41(a)(1)(B).” Fisher Decl. Ex. J. 15 In the Second Case, Avondale’s motion states: “Pursuant to CR 41(a), Plaintiff 10431 16 Avondale Road NE LLC (“Plaintiff”) seeks the Court’s permission to exercise its right to 17 voluntarily dismiss the claims in Case No. 25-2-13814-3 SEA without prejudice.” Fisher Decl. Ex. 18 R. And the order entered by the superior court is titled “Order Granting Plaintiff’s Motion for 19 Dismissal of All Claims Pursuant to CR 41(a).” Fisher Decl. Ex. S, ECF No. 22-19; Yoke Decl. 20 Ex. R. In the body of the order, the court stated: “All Claims Pursuant to CR 41(a) is GRANTED 21 and Plaintiff’s claims in King County Superior Court Case No. 25-2-13814-3 SEA are voluntarily 22 dismissed without prejudice without prejudice [sic] to refile suit in state or federal court.” Id. 23

24 ORDER GRANTING MOTION TO DISMISS 1 Avondale argues that its dismissals were by court order without prejudice and therefore, the 2 two-dismissal rule does not apply. Opp’n 3-4. Avondale is mistaken. Nothing in the record suggests 3 that the dismissals were anything other than voluntary unilateral dismissals by Avondale. Because 4 the second such dismissal operates as an adjudication on the merits, the two dismissal rule bars this 5 case. See, e.g., Wash. Civ. R. 41(a)(4) (indicating that the effect of a second voluntary dismissal 6 “operates as an adjudication upon the merits”); Spokane Cnty. v. Specialty Auto & Truck Painting, 7 Inc., 153 Wn. 2d 238, 246 (2004) (“[T]he plain language of the ‘two dismissal’ rule of CR 41(a)(4) 8 does not allow for court discretion. . . . While the language prior to the word ‘except’ allows court 9 discretion to direct whether a dismissal is with or without prejudice, the language of the excepting 10 clause contains no such discretion. The ‘two dismissal’ rule of CR 41(a)(4) is self-executing.”); 11 Feature Realty, 161 Wn.2d at 24 (“CR 41 states that a second dismissal constitutes an adjudication

12 on the merits, and thus the doctrine of res judicata prevents the plaintiff from relitigating the same 13 claim against the same party in a subsequent action.”). In Spokane County, the court also addressed 14 the plaintiff’s argument that the dismissals had been granted without prejudice: 15 [Plaintiff] argues that its prior dismissals do not apply toward the “two dismissal’ rule because the court granted both dismissals 16 “without prejudice.” The plain language of the “two dismissal” rule does not support this argument. The rule is self-executing and does 17 not allow for court discretion. We reject this argument as well. 18 153 Wn.2d at 246. 19 Avondale makes additional arguments that the two-dismissal rule does not apply under 20 Federal Rule of Civil Procedure 41(a). Opp’n 4-6. But the relevant rule here is Washington Civil 21 Rule 41, not the federal rule. Both Avondale’s motions for voluntary dismissal were brought under 22 Washington Civil Rule 41. The second dismissal, therefore, constituted an adjudication on the 23 merits.

24 ORDER GRANTING MOTION TO DISMISS 1 2 “Under Washington law, res judicata, or claim preclusion, prohibits the relitigation of 3 claims and issues that were litigated or could have been litigated in a prior action.” Eugster v. 4 Washington State Bar Ass’n, 198 Wn. App. 758, 786 (2017) (citing Loveridge v. Fred Meyer, Inc., 5 125 Wn.2d 759, 763 (1995); Pederson v. Potter, 103 Wn. App. 62, 67 (2000)). “The doctrine 6 curtails multiplicity of actions and harassment in the courts.” Id. (citing Bordeaux v. Ingersoll Rand 7 Co., 71 Wn.2d 392, 395 (1967)). Under the Full Faith and Credit Act, 28 U.S.C. § 1738, federal 8 courts must give a state court judgment “the same preclusive effect as would be given that judgment 9 under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. 10 Bd. of Educ., 465 U.S. 75, 81 (1984); see also Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 921 11 (9th Cir. 2003) (“A federal court must give to a state court judgment the same preclusive effect as

12 would the courts of the state in which it was rendered”). 13 Preclusion applies where the subsequent claim involves (1) the same subject matter, (2) the 14 same cause of action, (3) the same persons and parties, and (4) the same quality of persons for or 15 against whom the claim is made. Eugster, 198 Wn. App. at 786. The causes of actions do not need 16 to be identical to satisfy the second factor; “Washington law does not specify how precise the 17 subject matter in the first and second suit must coincide.” Id. at 787. Instead, Washington courts 18 consider four non-dispositive factors to determine whether two causes of action are the same: “(1) 19 whether the rights or interests established in the prior judgment would be destroyed or impaired by 20 the prosecution of the second action; (2) whether substantially the same evidence is presented in 21 the two actions; (3) whether the suits involved infringement of the same right; and (4) whether the

22 two suits arise out of the same transactional nucleus of facts.” Ensley v. Pitcher, 152 Wn. App. 891, 23 903 (2009).

24 ORDER GRANTING MOTION TO DISMISS 1 Avondale argues that the claims in this case are not the same as the claims in the First Case 2 and the Second Case. Opp’n 6-24. However, there’s no dispute that the First Case and the Second 3 Case were similar enough to be consolidated for litigation in the state court. See Fisher Decl. Ex. L 4 (“The Court finds that the Cases—which involve the same parties—share common issues of law 5 and fact.”). And Avondale admits that “[w]ith the exception of the federal claims and the addition 6 of MasTec, [this case] is similar to what was filed and dismissed as [the Second Case].” Opp’n 6. 7 Based on this Court’s review, it is apparent that the claims in this case were or could have been 8 litigated in the prior actions. The claims relate to the same subject matter (the Comcast easements), 9 they arise from the same set of facts, the central issues are the same, the evidence necessary to each 10 lawsuit is the same, and the rights or interests established by the prior adjudication on the merits 11 would be impaired by allowing Avondale to litigate the claims it has asserted in this case.

12 In sum, because Avondale previously obtained two voluntary dismissals in state court for 13 claims arising out of the same transaction, the second dismissal operated as an adjudication on the 14 merits under Washington Civil Rule 41(a)(4). Under the principle of res judicata, this final 15 judgment precludes the current action and all associated requests for relief as a matter of law. This 16 preclusive bar is apparent from the prior state court orders, of which the Court has taken judicial 17 notice. Accordingly, dismissal with prejudice is required for failure to state a claim under Federal 18 Rule of Civil Procedure 12(b)(6). 19 V. CONCLUSION 20 For the foregoing reasons, 21 1. Comcast Defendants’ Motion to Dismiss, or Alternatively, for Judgment on the Pleadings or Summary Judgment, ECF No. 21, is GRANTED; 22 23

24 ORDER GRANTING MOTION TO DISMISS 1 2. Plaintiff’s claims asserted against Defendants, Comcast Cable Communications, LLC, and Comcast Cable Communications Management, LLC, are DISMISSED 2 WITH PREJUDICE; 3 3. Plaintiff’s Amended Motion for Partial Summary Judgment, ECF No. 83, is DENIED AS MOOT; 4 4. Plaintiff’s two requests for judicial notice, ECF Nos. 42, 57, are GRANTED to the 5 extent described herein. DATED this 27th day of April 2026. 6 A 7 8 B arbara Jacobs Rothstein United States District Judge 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23

24 ORDER GRANTING MOTION TO DISMISS