Custom Window Company v. 5th Avenue Partners, LLC et al

Filing 36

ORDER Dismissing Counterclaim Without Prejudice and Denying 17 22 Motions as Moot: The Counterclaim filed by 5th Avenue Partners, LLC is hereby DISMISSED WITHOUT PREJUDICE. The motions to compel arbitration filed by Counter-Defendants Highland Partnership, Inc. and Travelers Casualty and Surety Company of America are DENIED as moot. Signed by Judge M. James Lorenz on 9/9/2009. (mjj)(jrl).

1 2 3 4 5 6 7 8 9 10 11 CUSTOM WINDOW COMPANY, 12 13 v. 14 5th AVENUE PARTNERS, LLC, et al., 15 16 17 18 Defendants; _________________________________ AND RELATED COUNTERCLAIM. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Civil No. 08cv1497-L(JMA) ORDER DISMISSING COUNTERCLAIM WITHOUT PREJUDICE AND DENYING MOTIONS AS MOOT

This action arises out of a construction project for the Diegan Hotel. The court has

19 subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Defendant and Counter-Claimant 5th 20 Avenue Partners, LLC ("Fifth Avenue") is the owner and developer of the Project. Counter21 Defendant Highland Partnership, Inc. ("Highland") is the general contractor. The Project 22 involved numerous subcontractors, including Plaintiff and Counterclaim-Defendant Custom 23 Window Company ("Custom Window"). 24 On August 15, 2008 Custom Window filed the instant action against AWI, Inc., a

25 subcontractor, and Fifth Avenue for breach of contract, foreclosure of mechanic's lien and other 26 State law claims. On October 20, 2008 Fifth Avenue filed a counterclaim against Custom 27 Window, Highland, Travelers Casualty and Surety Company of America, American Window All 28 Industries, Inc. aka AWI, Inc. and TWD, LLC for breach of contract, fraud, breach of
08cv1497

1 performance and payment bonds, injunctive and declaratory relief, disgorgement and several 2 other business torts under State law ("Counterclaim"). "Prior to filing the Counterclaim, [Fifth 3 Avenue] filed an action in the San Diego Superior Court against the same parties to the 4 Counterclaim and alleging the same causes of action." (Decl. of Keli Osaki at 1.) 5 Because it appeared that the State court action was filed first, covered the same parties

6 and claims as the Counterclaim in this action, and because the State court action appeared to be 7 pending concurrently with this action, this court issued an Order to Show Cause, directing Fifth 8 Avenue to show cause why this court should not abstain pursuant to the doctrine articulated in 9 Colorado River Water Conservation District v. Untied States, 424 U.S. 800, 817-19 (1976), and 10 its progeny. 11 On September 4, 2009 Fifth Avenue responded to the Order to Show Cause and stated it

12 did not object to a dismissal without prejudice, given that an identical action was filed first in 13 State court and is pending concurrently with the Counterclaim. Although Counter-Defendants 14 were provided an opportunity to respond, they did not timely do so. The record reflects no 15 objection to dismissal of the Counterclaim without prejudice. 16 Accordingly, based on the foregoing, the Counterclaim filed by 5th Avenue Partners,

17 LLC is hereby DISMISSED WITHOUT PREJUDICE. The motions to compel arbitration 18 filed by Counter-Defendants Highland Partnership, Inc. and Travelers Casualty and Surety 19 Company of America are DENIED as moot. 20 21 22 DATED: September 9, 2009 23 24 25 26 27 28
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08cv1497

IT IS SO ORDERED.

M. James Lorenz United States District Court Judge