Paul Evert's RV Country, Inc. et al v. Universal Underwriters Insurance Company

Filing 27

ORDER signed by Senior Judge William B. Shubb on 3/10/2016 re 20 Plaintiffs'/Cross-Defendants' Motion to Strike, or alternatively, to Dismiss Cross-Complaint: IT IS ORDERED that plaintiffs' motion to strike defendant's counte rclaim for declaratory relief be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that plaintiffs' motion to dismiss be, and the same hereby is, DENIED without prejudice to plaintiffs' right to file their motion to dismiss the new counterclaim if the court grants defendant's motion to file it. Defendant has filed a 22 Motion for Leave to File a New Counterclaim, which is set for hearing on 4/4/2016. The court has not yet ruled on that motion. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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PAUL EVERT’S RV COUNTRY,
INC.; PAUL EVERT; and CHARLES
CURTIS,

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CIV. NO. 1:15-00124 WBS SKO
ORDER

Plaintiffs,
v.
UNIVERSAL UNDERWRITERS
INSURANCE COMPANY,
Defendant.

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Plaintiffs Paul Evert’s RV Country Inc., Paul Evert,

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and Charles Curtis initiated this suit against defendant

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Universal Underwriters Insurance Company alleging a breach of

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defendant’s duty to defend.

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the court is plaintiffs’ motion to strike defendant’s

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counterclaim for declaratory relief as untimely pursuant to

(Docket No. 1.)

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Presently before

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Federal Rule of Civil Procedure 12(f) and motion to dismiss

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defendant’s counterclaim for failure to state a claim pursuant to

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Rule 12(b)(6).

(Docket No. 20.)

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Defendant admits that it improperly filed its

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counterclaim without first obtaining leave of court and therefore

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does not oppose plaintiffs’ motion to strike.

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at 1 (Docket No. 24).)

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file a new counterclaim, which is set for hearing on April 4,

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2016.

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(Docket No. 22.)

(Def.’s Non-Opp’n

Defendant has filed a motion for leave to

The court has not yet ruled on that

motion.

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IT IS THEREFORE ORDERED that plaintiffs’ motion to

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strike defendant’s counterclaim for declaratory relief be, and

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the same hereby is, GRANTED.

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plaintiffs’ motion to dismiss be, and the same hereby is, DENIED

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without prejudice to plaintiffs’ right to file their motion to

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dismiss the new counterclaim if the court grants defendant’s

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motion to file it.

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Dated:

IT IS FURTHER ORDERED that

March 10, 2016

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