Fireman's Fund Insurance Company v. Oberndorf Properties et al

Filing 81

ORDER by Chief Judge Philip A. Brimmer on 10/25/2023, re: 78 Plaintiff Fireman's Fund Insurance Company's Motion to Reopen Case is GRANTED. ORDERED that this case shall be reopened.(jtorr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-01005-PAB-SKC
FIREMAN’S FUND INSURANCE COMPANY, a California corporation,
Plaintiff,
v.
STEELE STREET LIMITED II, a Colorado limited partnership,
Defendant.
ORDER
This matter is before the Court on Plaintiff Fireman’s Fund Insurance Company’s
Motion to Reopen Case [Docket No. 78]. The Court has jurisdiction pursuant to 28
U.S.C. § 1332. The Court finds that Fireman’s Fund Insurance Company has shown
good cause to reopen the case.
I.

BACKGROUND
This case arises out of an insurance dispute related to a hailstorm in 2015.

Docket No. 1 at 6 ¶ 18. Plaintiff Fireman’s Fund Insurance Company (“Fireman’s
Fund”) initiated this action against defendant Steele Street Unlimited II (“Steele Street”)
on April 21, 2017, seeking a declaratory judgment that it was not required to undergo an
appraisal process before denying Steele Street’s claims. Id. at 1–2. Fireman’s Fund
argued that appraisal was not required because the dispute was not over the “amount of
loss” caused by the hailstorm, but whether the loss was covered under the insurance
policy. Docket No. 35 at 6–8. On February 13, 2019, the Court ruled on the parties’

cross motions for summary judgment on the appraisal issue. Docket No. 55. The Court
determined that, in order to reach its conclusion that no “physical loss” or “damage”
occurred under the policy, Fireman’s Fund made a causation determination – whether
the hailstorm caused flaking or other damage to the brick facade. Id. at 6. This
causation analysis was of the type contemplated by the appraisal process and
Fireman’s Fund was therefore required to participate in an appraisal. Id. The Court
also determined that Steele Street was required to submit to an Examination Under
Oath (“EUO”) at the request of Fireman’s Fund. Id. at 8. Fireman’s Fund appealed the
Court’s order on the cross motions for summary judgment, Docket No. 57. The Tenth
Circuit affirmed the Court’s ruling on January 5, 2022. Docket No. 76.
On January 26, 2022, counsel for Fireman’s Fund sent counsel for Steele Street
a notice that it would like to schedule Steele Street’s EUO. Docket No. 78 at 2.
Fireman’s Fund followed up with a letter requesting documents related to the appraisal
process on June 9, 2022. Docket No. 79 at 2. Fireman’s Fund received no response its
notice or letter. Id. at 3. One year later, Fireman’s Fund notified Steele Street that it
would seek a motion to reopen this case, citing Steele Street’s noncooperation and
delay. Docket No. 79-1 at 4. On June 20, 2023, Steele Street sent Fireman’s Fund
possible dates for an EUO. Id. at 2. Fireman’s Fund seeks to reopen the case so that it
may file a dispositive motion. 1
II.

DISCUSSION

To the extent that Fireman’s Fund ask for permission to file a particular motion,
the Court declines to address the issue. Rather, the parties should seek leave to file
any dispositive motion so that a briefing schedule may be established.
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A district judge may order that a civil action be administratively closed, subject to
reopening for good cause. D.C.COLO.LCivR 41.2. “Use of the administrative-closure
mechanism allows district courts ‘to remove from their pending cases suits which are
temporarily active elsewhere (such as before an arbitration panel) or stayed (such as
where a bankruptcy is pending).’” Patterson v. Santini, 631 F. App'x 531, 534 (10th Cir.
2015) (unpublished) (citing Mire v. Full Spectrum Lending Inc., 389 F.3d 163, 167 (5th
Cir. 2004)). Administrative closure is a way for the court to manage its docket by
“shelving pending, but dormant, cases without a final adjudication.” Shat Acres
Highland Cattle, LLC v. Am. Highland Cattle Ass'n, No. 21-cv-01348-WJM-NYW, 2021
WL 5067034, at *1 (D. Colo. July 21, 2021) (alternations and quotations omitted) (citing
Lehman v. Revolution Portfolio LLC, 166 F.3d 389, 392 (1st Cir. 1999)). The good
cause standard is not “onerous.” Patterson, 631 F. App'x at 534. “[G]ood cause to
reopen exists where the parties wish to litigate the remaining issues that have become
ripe for review.” Id. (citation and quotations omitted).
Reopening of an administratively closed case is often sought after the parallel
process for which the case was closed as been completed. Id. Issues may have been
further developed by this process, making them ripe for judicial review. Id. In the
instant case, the grounds for reopening are not that the parties have completed the
appraisal process. Instead, Fireman’s Fund claims that Steele Street has not
cooperated in setting an EUO. The Court finds that the year and a half long delay
between Fireman’s Fund first pursuing an EOU and Steele Street’s proposal of EOU

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dates serves as good cause to reopen the case. Therefore, the Court grants Fireman’s
Fund’s motion to reopen.
IV.

CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff Fireman’s Fund Insurance Company’s Motion to Reopen

Case [Docket No. 78] is GRANTED. It is further
ORDERED that this case shall be reopened.

DATED October 25, 2023.
BY THE COURT:
________________
______
PHILIP A. BRIMMER
Chief United States District Judge

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