Harper Construction Company, Inc. et al v. National Union Fire Insurance Company of Pittsburgh, PA et al

Filing 66

ORDER Granting (1)Joint Stipulation (ECF No. 61 ); and (2) Joint Motion for Entry of Judgment Under Rule 54(B) and for Stay of Action (ECF No. 65 ). Signed by Judge Cynthia Bashant on 9/18/20. (jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HARPER CONSTRUCTION
COMPANY, INC.; HARPER
MECHANICAL CONTRACTORS, LLC,

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Case No. 18-cv-00471-BAS-NLS
ORDER GRANTING:

Plaintiffs,

(1) JOINT STIPULATION (ECF
No. 61); and

v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Defendant.

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(2) JOINT MOTION FOR ENTRY OF
JUDGMENT UNDER RULE 54(B)
AND FOR STAY OF ACTION (ECF
No. 65)

AND RELATED COUNTERCLAIM

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This action arises from an insurance coverage dispute between the Plaintiffs-

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insureds and Defendant-insurer. In the Order dated March 28, 2019, the Court granted

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Defendant-insurer’s motion for partial summary judgment, finding that Defendant owed

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no duty to defend or indemnify Plaintiffs under the primary commercial general liability

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insurance policy at issue. (ECF No. 30.) The parties filed a joint stipulation (ECF No. 61)

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and moved for an entry of final judgment under Fed. R. Civ. P. 54(b) as to the Court’s

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March 28, 2019 Order. (ECF No. 65.)
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Plaintiffs seek to voluntarily dismiss with prejudice their remaining claims—

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intentional misrepresentation, negligent misrepresentation, promise without intent to

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perform, and reformation based on fraud—and appeal the Court’s March 28, 2019 Order.

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(ECF No. 61 at 3.) The parties stipulate that the Court’s ruling that Defendant lacked a

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duty to defend or indemnify Plaintiffs made most of Defendant’s counterclaims moot, apart

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from its third counterclaim on the wrap-up exclusion.1 (ECF No. 65 at 5.) In that claim,

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Defendant argues that the absolute wrap-up exclusion to the primary policy applies to

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nullify any duty to defend or indemnify that may exist under the primary insurance policy.

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Parties agree that the sole remaining counterclaim would also be made moot if, on appeal,

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the Court’s March 28, 2019 Order is affirmed. (Id.)

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“[T]he court may direct entry of a final judgment as to one or more, but fewer than

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all, claims or parties only if the court expressly determines that there is no just reason for

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delay.” Fed. R. Civ. P. 54(b). The court “must take into account judicial administrative

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interests” in ruling on the Rule 54(b) motion. Curtiss-Wright Corp. v. Gen. Elec. Co., 446

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U.S. 1, 8 (1980). Here, the equities do not show a just reason for delay, and it is in the

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interest of sound judicial administration for the Court to direct an entry of final judgment

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as to the Court’s March 28, 2019 Order. Plaintiffs have stipulated to voluntarily dismiss

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the remainder of their claims. For the Court to reach the third counterclaim would be to

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issue an advisory opinion, as it is unnecessary to rule on whether some exclusion applies

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to a duty that the Court has found not to exist. In other words, there is nothing left for the

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Court to do, other than to clear the way for the appeal.

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Having so found, the joint stipulation (ECF No. 61) and the joint motion (ECF No.

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65) are GRANTED. In addition, the Court STAYS this action as to all parties and claims

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pending resolution of the appeal.

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//

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//

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Defendant refers to this claim as its “Third Cause of Action (Declaratory Relief Regarding the
Absolute Wrap Exclusion).” (ECF No. 4 at 21–22.)
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Accordingly, the Court directs the clerk to:

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1. Dismiss with prejudice Plaintiffs’ claims for Intentional Misrepresentation,

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Negligent Misrepresentation, Promise Without Intent to Perform, and

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Reformation;

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2. Enter final judgment in favor of Defendant pursuant to Fed. R. Civ. P. 54(b) as

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to the Court’s March 28, 2019 Order granting Defendant’s motion for partial

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summary judgment (ECF No. 30); and

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3. Administratively close the present action pending appeal. See Dees v. Billy, 394

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F.3d 1290, 1294 (9th Cir. 2005) (holding that “[a]n order administratively closing

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a case is a docket management tool that has no jurisdictional effect” and is not

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appealable).

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IT IS SO ORDERED.

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DATED: September 18, 2020

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