Grange Insurance Association et al v. Lund et al, No. 3:2013cv05362 - Document 62 (W.D. Wash. 2014)
Court Description: ORDER denying 55 Defendant Dvojack's Motion to Vacate and Remand; signed by Judge Ronald B. Leighton.(DN)
Download PDF
<![CDATA[
Grange Insurance Association et al v. Lund et al 1 Doc. 62 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 GRANGE INSURANCE ASSOCIATION, et al., 10 Plaintiffs, 11 CASE NO. C13-5362 RBL ORDER DENYING DVOJACK’S MOTION TO VACATE AND REMAND v. [DKT. # 55] 12 13 14 DARYL LUND, a Washington resident; JAMES P. SPURGETIS, as Guardian for the Estate of GARY DVOJACK, and SARAH DVOJACK, a Washington resident, 15 Defendants, 16 17 18 19 v. CENTURY SURETY COMPANY, a foreign insurer, JO & JA, INC., a Washington corporation, LAURIE RAGER, and JAMES MICHAEL ABBOTT, 20 Third-Party Defendants. 21 THIS MATTER is before the Court on Dvojack’s Rule 60(b) Motion to Vacate the 22 Court’s Order Granting Century’s Motion for Summary Judgment [Dkt. # 54]. Century’s 23 24 ORDER - 1 Dockets.Justia.com 1 Motion argued that this Court had already dismissed most of Dvojack’s bad faith claims1 against 2 Century in a prior action [Dkt. #47 in Cause No. 12-5731 RBL], and that his current assertion of 3 the same claims in this case was barred by res judicata. Based on that prior adjudication (and 4 the appeal of it to the Ninth Circuit), this Court agreed that Dvojack’s effort to re-litigate those 5 same pre-judgment bad faith claims in this case was barred: Dvojack was not entitled to a second 6 bite at the apple. 7 Dvojack’s Motion asks the Court to Vacate the Order dismissing those claims, arguing 8 that the prior appeal divested this Court of jurisdiction to “resurrect and re-adjudicate” the bad 9 faith claims that he re-asserted in this second case. [Dkt # 55 at 3] Dvojack simultaneously 10 claims that the Court’s res judicata determination was erroneous because its Order in the prior 11 case did not adjudicate his pre-judgment bad faith claims. 12 Dvojack also argues, again, that this Court does not have diversity jurisdiction over this 13 case, in any event. He argues that all of these problems can and should be remedied by 14 remanding the case to Lewis County so that all of his bad faith claims—including the “pre15 judgment” bad faith claims he readily acknowledges were “already dismissed” in the prior case, 16 and that he affirmatively claims are currently on appeal—can nevertheless be freely and fully 17 litigated there, as though none of these other facts existed. 18 Because these arguments are not persuasive, the Motion is DENIED. 19 20 21 1 Some of Dvojack’s current bad faith claims arose after the judgment in the First Action, and the Court denied Century’s Motion on these “post-judgment” bad faith claims on that basis. 23 Dvojack’s “pre-judgment” bad faith claims were virtually identical to the claims initially asserted by Jo & Ja and Lund, prior to the assignment of those claims to Dvojack. Those claims were 24 dismissed in the First Action. 22 ORDER - 2 1 A. Dvojack—not the Court—is improperly attempting to resurrect previously-dismissed claims. 2 Dvojack’s first argument is puzzling. He claims that because he appealed this Court’s 3 dismissal of his pre-judgment bad faith claims in the prior case, the Court does not have 4 jurisdiction over the duplicative pre-judgment bad faith claims that he has asserted in this case: 5 Century’s Response does not question the Ninth Circuit’s exclusive jurisdiction over Dvojack’s pre-judgment bad faith claims under the rule in Gould v. Mut. 6 Life Ins. Co., 790 F.2d 769, 773 (9th Cir. 1986), that “[t]he filing of a notice of appeal divests the district court of jurisdiction.” Century cites no authority which 7 supports this Court’s continuing jurisdiction over the pre-judgment bad faith claims it dismissed in its March 14, 2013 final Judgment in a Civil Case. A notice 8 of appeal has been filed, and the Ninth Circuit has accepted review of the entire March 14, 2013 Judgment–which dismissed all of Dvojack’s assigned bad faith 9 claims[.] 10 Dkt. #59 at 1-2 (emphasis added). 11 But the Court is not “resurrecting and re-dismissing” those claims, or “issuing advisory 12 opinions” as to them. Rather, Dvojack asserted the claims, again, and Century’s Motion 13 correctly pointed out that they were already the subject of an earlier case and dismissal, and an 14 ongoing appeal. Dvojack admits that his current pre-judgment bad faith claims are duplicative of 15 pre-judgment bad faith claims that were already asserted, dismissed, and appealed. He concedes 16 that the Ninth Circuit has “exclusive jurisdiction” over “all of those claims.” But that is not a 17 reason2 to vacate the Court’s Order; it is instead the very basis for it: he cannot re-assert those 18 claims in this case. 19 If the Ninth Circuit affirms this Court’s dismissal of the pre-judgment bad faith claims in 20 the prior case, Dvojack is obviously not entitled to re-litigate them in this one. If it reverses and 21 remands, then those claims will be tried—in the First Action. Either way, there is no legal or 22 23 24 ORDER - 3 1 logical authority for permitting Dvojack to re-litigate the claims here, in Lewis County, or 2 anywhere else, while they are on appeal in the Ninth Circuit. 3 The Motion to Vacate or Remand based on the pendency of Dvojack’s appeal in the First 4 Action is DENIED. 5 B. The Court’s Order resolving the First Action adjudicated his pre-judgment bad faith claims. 6 Dvojack’s Response [Dkt. # 43] to Century’s res judicata Summary Judgment Motion 7 [Dkt. #15] did not claim (as his Motion to Vacate now does) that the Court’s Order in the First 8 Action was not entitled to res judicata effect. Nor did he claim, as he now does, that the prior 9 dismissal was wrong or that it should be re-visited. Instead, he surmised that the Ninth Circuit 10 might have jurisdiction over the pre-judgment bad faith claims, and incongruously asked the 11 Court to remand this case to Lewis County for adjudication in that event: 12 If the Ninth Circuit has jurisdiction over those pre-Judgment claims, such that they cannot be fully adjudicated in this action, then the Dvojacks respectfully 13 request the Court to remand this case to the Lewis County Superior Court so that both their assigned pre-Judgment and post-Judgment claims against Century may 14 be adjudicated in a parallel state proceeding without splitting their cause of action. 15 [Dkt. #43 at 2]. Dvojack’s proposed “cure” for the fact that the claims had already been 16 dismissed and appealed was, and is, a non-sequitur; if those claims are on appeal to the Ninth 17 Circuit, then they cannot be re-litigated elsewhere unless and until that appeal is complete. 18 Indeed, Dvojack’s first argument depends on the accuracy of this reasoning. He has not cited 19 any authority even suggesting that a remand in this circumstance is permissible or appropriate, 20 and the Court has found none. 21 Dvojack’s Response also argued that if the Court did exercise jurisdiction over the claims 22 despite the prior Order and the appeal, issues of fact about the merits of his bad faith claims 23 precluded summary judgment. He did not address the application of res judicata—the entire 24 ORDER - 4 1 basis for the Motion—at all. He instead treated the Motion as one on the merits of his bad faith 2 claims, and ignored the legal implications of the fact that they had already been dismissed with 3 prejudice. Dvojack’s new3 claim that the final Order in the First Action was wrong is one that can, 4 5 and presumably will, be made to the Ninth Circuit in connection with his appeal of that Order. 6 But it is not a basis for vacating this Court’s Order in this case, which determined that the claims 7 had already been dismissed with prejudice, and were thus barred. 8 The Motion to Vacate based on the alleged shortcomings of the Court’s Order in the 9 First Action, and the request for a remand to Lewis County based on them, is DENIED. 10 C. The renewed Motion to Remand based on lack of diversity is denied. Dvojack also claims, again, that this Court does not have jurisdiction for a separate 11 12 reason: lack of diversity jurisdiction. He argues that this too is a basis for remanding the case to 13 Lewis County. This matter has been fully briefed and decided [See, for example, Dkt. #s 19, 29 14 and 30]. The Motion to Vacate and Remand for lack of diversity jurisdiction is DENIED. 15 D. The Court is prepared to rule on the Cedell in camera review of Century’s postjudgment files and communications. 16 The Court has reviewed Century’s submittals in response to the Court’s prior Order [Dkt. 17 #54] on its Motion for Protective Order. The parties have recently filed a Joint Status Report 18 indicating that the trial will proceed as scheduled. Unless Dvojack indicates that this Order will 19 20 21 22 3 What is not new, unfortunately, is Dvojack’s strident, accusatory tone. The Court has addressed this issue before, as well. See Dkt. #35 at note 1. Adjectives and invective are not a substitute 24 for evidence, authority, or sound legal reasoning. 23 ORDER - 5 1 be the subject of an interlocutory appeal, the Court will issue an Order on that disputed discovery 2 by May 21. 3 IT IS SO ORDERED. 4 Dated this 14th day of May, 2014. 6 A 7 RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER - 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
