Flat Earth Excavation LLC v. Ohio Security Insurance Company

• Court: District Court, W.D. Washington
• Decided: September 9, 2021
• Docket: 2:21-cv-00680
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 FLAT EARTH EXCAVATION, LLC, CASE NO. C21-0680-JCC 10 Plaintiff, ORDER 11 v. 12 OHIO SECURITY INSURANCE 13 COMPANY d/b/a LIBERTY MUTUAL 14 INSURANCE, 15 Defendant.

16 This matter comes before the Court on Plaintiff Flat Earth Excavation, LLC’s motion for 17 voluntary dismissal (Dkt. No. 15) and Defendant Liberty Mutual’s motion for summary 18 judgment (Dkt. No. 10). Having thoroughly considered the parties’ briefing and the relevant 19 record, the Court finds oral argument unnecessary and hereby GRANTS Plaintiff’s motion (Dkt. 20 No. 15) and DENIES Defendant’s motion (Dkt. No. 10) for the reasons explained below. 21 Defendant provided commercial property insurance coverage to Plaintiff from September 22 27, 2019 to September 27, 2020. (Dkt. No. 1-1 at 3–4.) During this time, Plaintiff worked on 23 renovating a house in Carnation, Washington. (Id.) The house belonged to Richard and Susan 24 Lewis, who were also the owners of Plaintiff Flat Earth Excavation, LLC. (Id.) On or about 25 December 19, 2019, while renovations were ongoing, the house collapsed. (Id. at 4.) In a 26 February 10, 2020 letter, the Lewises submitted an insurance claim to Defendant. (Dkt. No. 12- 1 1.) The Lewises then negotiated the claim’s value directly with Defendant, but those talks 2 stalled, and Plaintiff filed the present action. (See generally Dkt. No. 1-1.) Defendant moves for 3 summary judgment on all of Plaintiff’s claims (Dkt. No. 10). In response, Plaintiff moves (a) to 4 voluntarily dismiss its case as authorized by Federal Rule of Civil Procedure 41(a)(2) and/or (b) 5 for a continuance of Defendant’s motion under Federal Rule of Civil Procedure 56(d). (Dkt. Nos. 6 14, 15.) 7 The Court will grant a motion for voluntary dismissal under Rule 41(a)(2) unless a 8 defendant shows that it will suffer legal prejudice. Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 9 2001). “‘[L]egal prejudice’ means ‘prejudice to some legal interest, some legal claim, some legal 10 argument.’” Id. at 976 (quoting Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 11 1996)). In this instance, the Court finds that Defendant has not shown legal prejudice, as 12 prejudice from a voluntary dismissal at this stage would be minimal. Defendant only recently 13 removed the case to this Court. (See Dkt. No. 1.) The Rule 26(f) conference has not yet occurred, 14 nor has the Court set a trial date or discovery cut-off date. (See Dkt. No. 22.) While granting 15 Plaintiff’s motion may provide Plaintiff the opportunity to cure the procedural deficiency in its 16 Washington Insurance Fair Conduct Act claim, this is not the type of prejudice Rule 41(a)(2) 17 seeks to avoid; it is not an “attempt to avoid an adverse decision on the merits.” In re Sizzler 18 Restaurants Int’l., Inc., 262 B.R. 811, 822 (C.D. Cal. 2001) (emphasis added). 19 For the reasons described above, Plaintiff’s motion for voluntary dismissal (Dkt. No. 15) 20 is GRANTED and Defendant’s motion for summary judgment (Dkt. No. 10) and Plaintiff’s Rule 21 56(d) request (Dkt. No. 14) are DENIED as moot. Accordingly, Plaintiff’s complaint is 22 DISMISSED without prejudice. 23 // 24 // 25 // 26 // 1 DATED this 9th day of September 2021. A 2 3 4 John C. Coughenour 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26