Osborne Construction Company v. Zurich American Insurance Company

Filing 25

ORDER denying Defendant's 22 Motion to Continue Plaintiff Osborne's Motion for Summary Judgment signed by U.S. District Judge John C Coughenour. (TH)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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OSBORNE CONSTRUCTION
COMPANY,

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CASE NO. C18-0349-JCC
ORDER

Plaintiff,

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v.

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ZURICH AMERICAN INSURANCE
COMPANY,

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Defendant.

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This matter comes before the Court on Defendant’s motion to continue Plaintiff’s motion

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for partial summary judgment (Dkt. No. 22). Having thoroughly considered the Plaintiff’s

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motion and the relevant record, the Court finds oral argument unnecessary and hereby DENIES

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the motion for the reasons explained herein.

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I.

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BACKGROUND
This case involves a dispute over insurance coverage. (See Dkt. No. 1.) In late 2017,

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Defendant denied Plaintiff, a general contractor, coverage as an additional insured under a

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subcontractor’s insurance policy. (Id. at 4–5.) Plaintiff filed this lawsuit on March 7, 2018,

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seeking declaratory and compensatory relief. (Id. at 8–9.) On October 18, 2018, Plaintiff moved

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for partial summary judgment. (Dkt. No. 19.) It seeks a ruling that, as a matter of law, Defendant

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owed it a duty to provide a defense under the terms of the insurance policy, that Defendant’s
ORDER
C18-0349-JCC
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denial of coverage was in bad faith, and that as a result, Defendant is estopped from now denying

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coverage. (Id. at 21.)

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Plaintiff’s motion for partial summary judgment was originally noted for November 9,

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2018. (Dkt. No. 19 at 1.) Defendant moves to continue the noting date by three weeks to

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accommodate the deposition of Daniel Jacobson. (Dkt. No. 22.) Mr. Jacobson is one of

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Plaintiff’s directors, and sent Defendant the letter initially requesting coverage. (Id.) In a

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declaration, defense counsel states that she attempted to arrange a time to depose Mr. Jacobson

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before Plaintiff filed its motion for partial summary judgment, but that Plaintiff’s counsel was

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uncooperative. (Dkt. No. 23 at 2–3.) Mr. Jacobson is now scheduled to be deposed on November

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1, 2018. (Id. at 3.) Defense counsel states that she “determined that [Mr. Jacobson] . . . is a

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material witness,” and told Plaintiff that Defendant “need[s] Mr. Jacobson’s testimony before [it]

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can respond” to the motion for partial summary judgment. (Id. at 2–3.) Plaintiff refused

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Defendant’s request to withdraw the motion to allow time for the deposition, but voluntarily re-

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noted the motion for one week later, on November 16, 2018. 1 (Dkt. No. 24.)

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II.

DISCUSSION

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A.

Legal Standard

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The Court may continue a motion for summary judgment to permit additional discovery

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if the non-movant shows that it lacks specific facts essential to opposing the motion. Fed. R. Civ.

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P. 56(d)(2). The party requesting a continuance must show: “(1) that they have set forth in

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affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts

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sought exist, and (3) that these sought-after facts are ‘essential’ to resist the summary judgment

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motion.” California ex rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772,

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779 (9th Cir. 1998).

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It appears to the Court that Plaintiff’s decision to re-note its motion was an effort to allow
Defendant to incorporate Mr. Jacobson’s deposition testimony into its response.

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B.

Defendant’s Motion to Continue

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Defense counsel’s affidavit does not specify what facts Defendant hopes to obtain from

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Mr. Jacobson’s deposition, nor explain how his testimony is essential to its ability to respond to

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Plaintiff’s motion for partial summary judgment. Defendant merely states that Mr. Jacobson is a

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“material witness,” that it “need[s] [his] testimony before [it] can respond to [Plaintiff’s] motion

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[for partial summary judgment],” and that a transcript of the deposition will not be available in

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time to incorporate the testimony into its response. (Dkt. No. 23 at 2–3.) To justify continuing

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Plaintiff’s motion, Defendant has the burden to first identify “specific facts that [it] hope[s] to

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elicit from further discovery,” and then to demonstrate how those facts are essential to its ability

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to respond to Plaintiff’s motion for partial summary judgment. Campbell, 138 F.3d at 779

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(emphasis added). Defendant has failed to identify any facts it hopes to elicit from Mr. Jacobson,

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much less provide a compelling justification for why it needs those facts to fully respond to

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Plaintiff’s motion. Thus, Defendant has failed to provide a sufficient justification for continuing

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Plaintiff’s motion for partial summary judgment.

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III.

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CONCLUSION
For the foregoing reasons, Defendant’s motion to continue plaintiff’s motion for partial

summary judgment (Dkt. No. 22) is DENIED.
DATED this 2nd day of November 2018.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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