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denying a motion to dismiss and finding that a party adequately alleged damages because they "allege[d] they have suffered damages as a result of [the non-moving party's] failure to provide to them the coverage and benefits that were due under the policy."
Summary of this case from Sycks v. Transamerica Life Ins. Co.Opinion
No. 2:15-cv-00861-KJM-EFB
09-14-2015
LEXINGTON INSURANCE COMPANY, a Delaware Corporation, Plaintiff, v. ENERGETIC LATH & PLASTER, INC., a California Corporation; ENERGETIC PAINTING AND DRYWALL, INC., a California Corporation; ROBERT CIMINI, an individual; GAIL CIMINI, an individual; and DOES 1 through 20, inclusive, Defendants AND RELATED COUNTERCLAIMS
ORDER
This matter is before the court on plaintiff and counter-defendant's motion to dismiss the counter-complaint of defendants and counter-plaintiffs Robert and Gail Cimini. (ECF No. 10.) Plaintiff also moves to strike the Ciminis' affirmative defenses and requests for attorneys' fees and punitive damages. (Id.) Defendants oppose the motions. (ECF No. 25.) The court submitted the matters without oral argument. As explained below, the court GRANTS in part and DENIES in part each motion.
I. BACKGROUND
Plaintiff Lexington Insurance Company (Lexington) commenced this declaratory relief action in April 2015. (ECF No. 1.) Lexington seeks several declarations to clarify disputed rights and obligations under a number of insurance policies issued to defendants Energetic Lath & Plaster, Inc. (ELP) and Energetic Painting and Drywall, Inc. (EPD), collectively referred to as "Energetic." (Id.) Defendants Robert and Gail Cimini, as assignees of Energetic, answered on May 22, 2015, and alleged thirty-one affirmative defenses. (Answer, Third-Party Complaint, Counterclaim (CC), ECF No. 9.) Defendants also filed a counter-complaint, alleging five claims against Lexington: 1) declaratory relief; 2) breach of contract; 3) breach of the duty of good faith and fair dealing; and 5) enforcement of judgment. (Id. at 51-54.) On June 15, 2015, Lexington moved to dismiss the Ciminis' counter-claims against it as well as to strike the affirmative defenses, along with the requests for attorneys' fees and punitive damages. (Pl.'s MTD at 1-2, ECF No. 10.)
Lexington issued a number of general liability insurance policies to Energetic between June 2004 and July 2010. (Compl. ¶¶ 9-24, ECF No. 1.) These policies each contain a $25,000 self-insured retention clause (SIR). (Id. ¶¶ 23-24.) This clause provides that Lexington has no duty to investigate any "occurrence, claim or suit" until the insured has satisfied the SIR. (Id. ¶ 24.) Between March and May 2006, Energetic entered into contracts with Silverstar, a Nevada home developer, to perform construction work at Energetic's Renaissance at Montreux home development in Reno, Nevada. (Id. ¶¶ 26-29.) The Cimini Family Trust, represented here by Robert and Gail Cimini, purchased a home in the Montreux development in September 2009. (Id. ¶ 28.) On July 1, 2011, the Ciminis served Silverstar with a Chapter 40 Notice of Compliance as provided by Nevada Revised Statute (NRS) section 40.645, which alleged their home had various construction defects, including defective stucco and drywall. (Compl. ¶ 30; CC ¶ 43.) On July 11, 2011, Silverstar tendered its defense of the Chapter 40 Notice to Lexington; Lexington disclaimed any obligation for the defects because Energetic had not satisfied the SIR and because the policy did not cover the claims alleged. (Compl. ¶ 31.) On October 26, 2011, the Ciminis filed the underlying action against Silverstar in Nevada state court, captioned as Robert and Gail Cimini v. Silverstar Associates, et al., No. 11-03117 (Second Judicial District Court for the State of Nevada for the Washoe County). (Id. ¶ 25.) On January 10, 2012, Silverstar filed a third-party complaint in that action against various subcontractors, including Energetic. (Id. ¶¶ 32-34.)
Under Nevada law, before a claimant brings suit for a construction defect against a contractor, subcontractor, supplier or design professional, a claimant must give written notice to the contractor. Nev. Rev. Stat. Ann. § 40.645(1)(a). The notice must, among other things, "[i]dentify in specific detail each defect, damage and injury to each residence or appurtenance that is the subject of the claim, including, without limitation, the exact location of each such defect, damage and injury" and "[d]escribe in reasonable detail the cause of the defects if the cause is known and the nature and extent that is known of the damage or injury resulting from the defects. . . ." Nev. Rev. Stat. Ann. § 40.645(2)(b)-(c).
On July 30, 2012, Energetic defaulted on the Ciminis' Chapter 40 Notice by virtue of its non-response. (Id. ¶ 35.) Lexington maintains it was not aware of the third-party complaint against Energetic until after default was entered in the Nevada action, in July of 2012. (Pl.'s MTD at 2). On August 24, 2012, Lexington issued a Reservation of Rights Letter, advising Energetic that Lexington had no obligation to provide Energetic with a defense or indemnity until the SIR was satisfied. (Compl. ¶¶ 40-41.) In March 2013, Silverstar notified Lexington that a mandatory settlement conference was pending. (CC ¶ 76.) Although Lexington subsequently retained Ferris & Associates as counsel on Energetic's behalf, Energetic was not represented at the settlement conference. (Compl. ¶ 43; CC ¶ 81.) At the settlement conference, the Ciminis settled with Silverstar for $100,000, and Silverstar assigned its rights against Energetic to the Ciminis. (Compl. ¶ 45; CC ¶ 82.)
Lexington alleges that Silverstar's representation in the underlying action was paid for by other insurers who did not assign their rights to Silverstar. Lexington claims that Silverstar's purported assignment of its right to recover its defense fees to the Ciminis is therefore invalid "because any such rights belong to the insurer(s) who paid for Silverstar's settlement and who were neither parties in the Underlying Action nor parties [to] Silverstar's agreement with the Ciminis." (Compl. ¶¶ 49-50.)
Ferris & Associates subsequently filed a motion to set aside Energetic's default (Compl. ¶ 48), which the Nevada court denied (CC ¶¶ 95, 99). Thereafter, following a prove-up hearing, the Nevada court entered its proposed findings that Energetic was liable for the claims against it by virtue of the default; that Energetic was responsible for $404,625.11 in damages; and that the Ciminis stepped into the shoes of Silverstar as provided by the settlement agreement and were entitled to attorneys' fees and costs. (Id. ¶¶ 100-101.) Ferris unsuccessfully objected to the proposed findings, and the court approved the findings and entered judgment against Energetic. (Id. ¶¶ 104-108.) Ferris filed an appeal with the Nevada Supreme Court on Energetic's behalf on October 3, 2014. (Id. ¶¶ 113, 116.) As noted, in April 2015, Lexington filed this action for declaratory relief against the Ciminis, EPD, and ELP. (Id. ¶ 126.)
II. REQUESTS FOR JUDICIAL NOTICE
Under Federal Rule of Evidence 201(b), a court may take judicial notice of a fact that is "not subject to reasonable dispute" in that it is either (1) generally known or (2) capable of accurate and ready determination by resort to sources "whose accuracy cannot reasonably be questioned." It is the proponent's burden to show that the requested material is the proper subject ofjudicial notice. Hurd v. Garcia, 454 F. Supp. 2d 1032, 1054-55 (S.D. Cal. Sept. 28, 2006).
A. Lexington's First Request
Plaintiff requests the court take judicial notice of documents from the underlying Nevada state court action, captioned Robert and Gail Cimini v. Silverstar Associates, et al., No. CV-1103117. (RJN1.) Plaintiff specifically requests the court take notice of "Plaintiff's Opposition to [EPD's] Motion to Lift Default" (Ex. 1). Exhibit 1 is the Reservation of Rights letter sent by Lexington employee Dick Shaw to EDP on August 24, 2012. The letter includes provisions of Energetic's insurance policy. Plaintiff also requests the court take judicial notice of the exhibit list from the Nevada court prove-up hearing (Ex. 2), the Ciminis' Cost of Repair report that was admitted into evidence at the prove-up hearing (Ex. 3), "Defendant [EPD's] Motion to Lift Default and Set Aside Default Order" (Ex. 4), and "Defendant [ELP's] Motion to Lift Default and Set Aside Default Order" (Ex. 5).
Defendants object to plaintiff's request. Defendants argue the request does not comply with Federal Rule of Civil Procedure 56 and that the documents at issue contain facts subject to reasonable dispute. (Opp'n to RJN, ECF No. 26.)
"A court may take judicial notice of 'matters of public record' without converting a motion to dismiss into a motion for summary judgment." Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal citations omitted). As such, defendants' Rule 56 argument is unavailing. The court notes both that judicial notice of court records is routine, see, e.g., Rowland v. Paris Las Vegas, No. 13-02630, 2014 WL 769393, at *3 (S.D. Cal. Feb. 25, 2014), and that the court may take judicial notice of the existence of documents without taking judicial notice of the truth of the matters asserted therein, In re Bare Escentuals, Inc. Sec. Lit., 745 F. Supp. 2d 1052, 1067 (N.D. Cal. Sept. 30, 2010). Additionally, "[a] district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998).
Here, the Lexington policy provisions are relevant to the parties' claims, are not attached to the complaint, and are included in Exhibit 1 of plaintiff's requested materials. Though defendants claim that the exhibit's contents are subject to dispute, they do not question the document's authenticity. Taking judicial notice of the policy provisions, without noticing the truth of the matters asserted in Mr. Shaw's letter, is appropriate under these circumstances. See Enger v. Allstate Ins. Co., 682 F. Supp. 2d 1094, 1096 (E.D. Cal. Dec. 9, 2009), aff'd, 407 F. App'x 191 (9th Cir. 2010). Similarly, with respect to Exhibits 2 through 5, the court finds the materials are "helpful for examining the claims litigated in state court," Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1037 (9th Cir. 2005), but reiterates that the court takes judicial notice only of the materials' existence and not the veracity of their contents. The court GRANTS plaintiff's first request for judicial notice.
B. Lexington's Supplemental Request
In its July 28, 2015 supplemental request, plaintiff requests the court take judicial notice of additional documents from the underlying Nevada action: (1) the reply brief to Lexington's opposition to motion to strike (Ex. 6); (2) the transcript of the April 5, 2013 settlement conference (Ex. 7); (3) the court's findings of fact and conclusions of law (Ex. 8); (4) the defaults against EPD and ELP (Exs. 9, 10); (5) Energetic's motion for relief under Nevada Rule of Civil Procedure 60 (Ex. 11); and (6) Lexington's motion to alter or amend (Ex. 12). (ECF No. 30.) As to the settlement conference transcript, plaintiff specifically seeks judicial notice of the terms of the settlement agreement. (Id.) Defendants do not oppose the supplemental request.
Nevada Rule of Civil Procedure 60 provides grounds for relief from a judgment or order. Nev. R. Civ. P. 60.
Here, the terms of the settlement agreement, including the assignment of Silverstar's rights against EDP and ELP to the Ciminis, are essential to plaintiff's claims and are referenced in both parties' pleading papers. Though the parties dispute the validity of the settlement agreement, the parties agree about its terms. The same is true of the defaults entered against Energetic. Moreover, the filings from the underlying action are matters of public record. The court GRANTS plaintiff's supplemental request and judicially notices the existence of the documents mentioned above, but not the truth of their contents.
III. THRESHOLD ISSUES
A. Standing
Lexington argues the Ciminis' counter-complaint should be dismissed because the Ciminis allege only that they requested a judicial assignment from the Nevada state court, not that they were granted such an assignment. (MTD at 10:16-21.) Lexington also argues the Ciminis lack standing to enforce Silverstar's judgment. (Id. at 6:24-7:9).
"Standing is the threshold issue of any federal action." Employers-Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Anchor Capital Advisors, 498 F.3d 920, 923 (9th Cir. 2007). To demonstrate Article III standing plaintiffs must show they are "under threat of suffering 'injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The party invoking the court's jurisdiction bears the burden of showing standing. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Generally, a plaintiff may not assert the rights of third parties, see Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 14 (2004), but in cases of legal assignment an assignee may sue on an assigned claim in federal court based on the assignor's injuries, Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 285 (2008) ("Lawsuits by assignees . . . are 'cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.'") (internal citations omitted).
Here, the counter-complaint alleges that Silverstar assigned its rights against ELP and EPD to the Ciminis (CC ¶ 82) and that the Nevada court found that the Ciminis stepped into the shoes of Silverstar (id. ¶¶ 101, 106). Construing the counter-complaint in the light most favorable to the Ciminis, this court finds the Ciminis have adequately alleged facts demonstrating their standing to allege counter-claims against Lexington. (See also Defs.' Opp'n to Pl.'s MTD, Ex. 3, at 3 ¶¶ 1, 6, ECF No. 25.)
B. Choice of Law
In diversity actions, federal district courts apply the choice of law rules of the state in which they sit. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). California courts have used both common law and statutory choice of law rules. Compare, e.g., Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 107-08 (2006) (describing a common law "governmental interests" test) with, e.g., Frontier Oil Corp. v. RLI Ins. Co., 153 Cal. App. 4th 1436, 1459-61 (2007) (applying Cal. Civ. Code § 1646). The statutory approach is simpler and more straightforward than the common law governmental interests test: when interpreting a contract, a court first looks "to the law and usage of the place where [the contract] is to be performed," but if the contract "does not indicate a place of performance," the contract is interpreted "according to the law and usage of the place where it [was] made." Cal. Civ. Code § 1646; Frontier, 153 Cal. App. 4th at 1450. In Frontier, the California Court of Appeal thoroughly reviewed the history of both the governmental interests test and section 1646, and concluded that the California Supreme Court had not abrogated the statute, which by its own terms governs the interpretation of contracts. See 153 Cal. App. 4th at 1454-61 ("The California Supreme Court has never applied the governmental interest analysis to determine the law governing the interpretation of a contract and has never stated or suggested that section 1646 does not determine the law governing the interpretation of a contract.").
Here, this court finds that California Civil Code section 1646 governs this action's contract claims. The statute's more specific provisions and status as a legislative enactment suggest its applicability in cases of contract interpretation. By requiring the court to determine whether a contract "indicate[s] a place of performance," the statute bolsters "the fundamental goal of contract interpretation" under California law: "to give effect to the mutual intent of the parties as it existed at the time of contracting." Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012) (citations and internal quotation marks omitted). As to the non-contract claims, the governmental interests test applies as explained below.
1. Contract Claims
To begin, the parties agree the Lexington insurance policies do not specify a place of performance. (Pl.'s MTD at 5:5-6; Defs.' Opp'n to Pl.'s MTD at 3:21; see also Pl.'s MTD, Exs. A & B.) However, even absent an express specification, "[t]he parties' intention as to the place of performance sometimes can be gleaned from the nature of the contract and the surrounding circumstances." Frontier, 153 Cal. App. 4th at 1450. In Frontier, the insurance policy endorsements specifically named the City of Beverly Hills and the Department of Transportation of the City of Los Angeles as insureds. Id. at 1461. The court found, "[t]hese three endorsements clearly demonstrate that the parties intended the policy to provide coverage for the insureds' oil and gas operations in Beverly Hills . . . . We therefore conclude that California was the intended place of performance . . . and that California law governs the interpretation of the policy." Id. at 1461-62.
Here, the Lexington policy defines "coverage territory" as "The United States of America," (Pl.'s MTD, Ex. A, at LEX 20), and states that Lexington "will submit to the jurisdiction of [any] court of competent jurisdiction within the United States." (Id. at LEX 28). This court therefore concludes that the nature and surrounding circumstances of the contract cannot be determined and accordingly considers the place where the contract was made. Because the policy lists the insurance broker as "Crump E&S of San Francisco Ins." and the insured as "Energetic Painting & Drywall" with an address in North Highlands, California, (id. at LEX 122), this court concludes the contract was made in California and California law applies.
2. Non-Contract Claims
For non-contractual claims, California courts apply the "governmental interest" test, which requires a three-step analysis:
First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law "to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state" and then ultimately applies "the law of the state whose interest would be the more impaired if its law were not applied."Kearney, 39 Cal. 4th at 107-08 (citation omitted).
Here the parties agree that, as applied to most of the claims, there are not material differences between California and Nevada law. However, to the extent that the laws differ as applied to defendants' claims regarding breach of the duty of good faith and fair dealing and violation of Nevada's Unfair Trade Practices Act, it is appropriate to consider whether California or Nevada has a greater interest in application of its law. Lexington relies on the case of Axis Reinsurance Co. v. Telekenex, Inc. for its argument that California has a greater interest in applying its law to a policy negotiated and formed in California, regardless of where the loss occurred. (See Pl.'s MTD, at 6:27-7:5.) In Telekenex, an insurance company sought a judicial declaration that its insurance policy did not cover any amounts awarded to the insured, Telekenex, in an underlying action. Axis Reinsurance Co. v. Telekenex, Inc., 913 F. Supp. 2d 793, 797 (N.D. Cal. Dec. 19, 2012). The underlying action arose when one of Telekenex's competitors sued Telekenex employees in the state of Washington. Id. at 798. Telekenex was a California company and 100 percent of its employees worked in California. Id. The insurance policy was issued in San Francisco and though it did not include a choice-of-law provision, it did include a single amendatory endorsement that referred to the state of California. Id. at 805. The court found that even though the suit was "litigated in Washington, based on acts and omissions by Washington residents in Washington state, and concerned harm to [a company] which is based out of Washington," California had the greater interest because "the Policy was executed in this state and the facts suggest[ed] that the parties intended for California law to govern its application." Id. at 806.
Many insurance policies will include multiple state-specific endorsements. Thus, "where a policy insures against risks located in several states, e.g., where the policy contains amendatory endorsements for multiple states, courts will often apply the law of the state of the principal location of the particular risk involved." Telekenex, 913 F. Supp. 2d at 805.
The instant case is distinguishable from Telekenex. There, the insurance policy at issue explicitly referenced California in the amendatory endorsement. There is no such reference here. In fact, as noted above, the policy defines the coverage territory as national in scope. As such, the place of performance and location of loss holds more weight. See Stonewall Surplus Lines Ins. Co. v. Johnson Controls, Inc., 14 Cal. App. 4th 637, 648 (1993). The place of performance and location of loss is Nevada: the construction defects giving rise to the underlying action concerned a home in Nevada, and that action was litigated in Nevada state courts. Nevada has a greater interest than California in the non-contract aspects of the instant action and Nevada law should thus be applied to the good faith and fair dealing and Unfair Trade Practices claims.
IV. MOTION TO DISMISS
A. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action . . . .'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court "must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply to "a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286 (1986), quoted in Twombly, 550 U.S. at 555, to "allegations that contradict matters properly subject to judicial notice," or to material attached to or incorporated by reference into the complaint, Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)
B. Ciminis' Declaratory Relief Claim
The Ciminis seek judicial determination of their rights and duties, as well as Lexington's rights and duties, under the Lexington insurance policy. (CC ¶ 130.) Lexington argues the Ciminis' declaratory claim should be dismissed because it is duplicative of the other claims and seeks only to redress past wrongs. (Pl.'s MTD at 7:20-21.)
Under the Declaratory Judgment Act, 28 U.S.C. § 2201, a court may "declare the rights and other legal relations" of the parties to an actual controversy. It is "an enabling Act, which confers discretion on the courts rather than an absolute right upon a litigant." Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (internal quotation marks omitted). In its discretionary consideration of whether to award declaratory relief, a court is guided by two criteria: (1) whether the judgment will serve a useful purpose in clarifying and settling the legal relations at issue, and (2) whether the judgment will afford relief from the uncertainty, insecurity and controversy giving rise to the proceeding. McGraw-Edison Co. v. Preformed Line Products Company, 362 F.2d 339, 342 (9th Cir. 1966). Declaratory relief "operates prospectively . . . ." Amaral v. Wachovia Mortgage Corp., 692 F. Supp. 2d 1226, 1235 (E.D. Cal. 2010) (internal quotation marks omitted, collecting cases). "A declaratory relief action serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them." Id. (internal quotation marks omitted).
Here, it is unclear from the Ciminis' allegations whether a basis for a declaratory relief exists. Specifically, it is unclear whether the declaratory relief sought would resolve only past wrongs or whether it would likely impact future conduct. See Khalsa v. Hali, No. 13-03575, 2014 WL 3883713, at *2 (N.D. Cal. Aug. 6, 2014) (noting "no basis for declaratory relief exists where only past wrongs are involved"). Accordingly, the court GRANTS the motion to dismiss defendants' declaratory relief claim with leave to amend if defendants can do so consonant with Rule 11.
C. Ciminis' Breach of Contract Claim
Lexington makes three arguments in support of its motion to dismiss the Ciminis' breach of contract claim. First, Lexington alleges that its policies are subject to an unsatisfied SIR (Pl.'s MTD at 8); second, Lexington argues the allegations are for defective work, which does not constitute "property damage" under the insurance policy (id. at 9); and finally, Lexington argues Energetic breached the notice requirements under the policy, relieving Lexington as the insurer of liability (id. at 11).
In California, a breach of contract claim includes four elements: (1) the contract; (2) the plaintiff's performance or excuse of non-performance; (3) the defendant's breach of contract; and (4) damages resulting from the defendant's breach. San Mateo Union High Sch. Dist. v. Cnty. of San Mateo, 213 Cal. App. 4th 418, 439 (2013). Here, the court finds the Ciminis' allegations are sufficient to state a claim for breach of contract. First, the existence of a contract is uncontested; Lexington acknowledges that an insurance policy was issued to Energetic and that the Ciminis now stand in the shoes of Energetic. (Compl. ¶ 53.) Second, the Ciminis allege that they have performed all conditions of the insurance policy required to be performed (CC ¶ 134), thus satisfying the performance element. Third, the Ciminis allege Lexington breached the provisions of the insurance contract by failing to adequately investigate, evaluate, process and settle their claim. (CC ¶ 139.) Finally, the Ciminis allege they have suffered damages as a result of Lexington's failure to provide to them the coverage and benefits that were due under the policy. (Id. ¶¶ 138-140.) At this stage of the litigation, these allegations are sufficient to provide sufficient notice to Lexington of the nature of defendants' breach of contract claim. The court DENIES Lexington's motion to dismiss this claim.
D. Ciminis' Breach of the Duty of Good Faith and Fair Dealing Claim
Plaintiff argues defendants' breach of the duty of good faith and fair dealing claim should be dismissed for two independent reasons: first, it cannot proceed without a valid breach of contract claim, and second, the allegations do not show "conscious and deliberate wrongdoing." (ECF No. 10 at 15-17.) Defendants counter a breach of contract claim is not a requirement to bringing a breach of the duty of good faith and fair dealing claim and the factual allegations are adequately pled. (ECF No. 25 at 11-12.)
As noted above, Nevada law governs the breach of the duty of good faith and fair dealing claim. "Nevada law recognizes the existence of an implied covenant of good faith and fair dealing in every contract." Pemberton v. Farmers Ins. Exch., 109 Nev. 789, 792-93 (1993). "An insurer fails to act in good faith when it refuses without proper cause to compensate the insured for a loss covered by the policy." Id. at 793. "Such conduct gives rise to a breach of the covenant of good faith and fair dealing." Id. "This breach or failure to perform constitutes 'bad faith' where the relationship between the parties is that of insurer and insured." Id. "Bad faith involves an actual or implied awareness of the absence of a reasonable basis for denying benefits of the policy." Am. Excess Ins. Co. v. MGM Grand Hotels, Inc., 102 Nev. 601, 605 (1986).
Here as well, the allegations are sufficient to survive plaintiff's motion to dismiss. Specifically, defendants' counter-complaint alleges that plaintiff breached the covenant of good faith and fair dealing by, among other things, "(a) refusing, without proper basis, to recognize its coverage obligations; (b) failing to make a timely determination of coverage; (c) failing to properly investigate [their claims]; [and] (d) failing to inform [them] of what [plaintiff] needed [defendants] to do and to provide to [plaintiff] so that [plaintiff] could promptly and timely adjust [defendants'] claim . . . ." (CC ¶ 144.) These allegations show that defendants have stated a claim for breach of the duty of good faith and fair dealing. See Turk v. TIG Ins. Co., 616 F. Supp. 2d 1044, 1054 (D. Nev. 2009).
E. Ciminis' Unfair Trade Practices Claim
Plaintiff argues the unfair trade practices claim should be dismissed because the allegations are conclusory and lack factual support. (ECF No. 10 at 13-14.) Defendants counter their allegations are sufficient to survive plaintiff's motion to dismiss. (ECF No. 25 at 15.)
Defendants' claim is based on Nevada Revised Statutes section 686A.310. (CC ¶ 152.) The Title of that section reads "unfair practices in settling claims; LIABILITY OF INSURER for damages." See Nev. Rev. Stat. Ann. § 686A.310. The section itself supplies a list of acts deemed to be unfair practices. Nev. Rev. Stat. Ann. § 686A.310(1)(a)-(p). Each act is accompanied by its own required standard of conduct. But no section contains "a mens rea of knowing or reckless intent . . . ." Pioneer Chlor Alkali Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 863 F. Supp. 1237, 1243 (D. Nev. 1994) (emphasis in original). Some of the provisions involve a reasonableness standard. Id. (citing NRS §§ 686A.310(c), (d), (e), and (n) (involving questions as to the promptness of an insurer's actions)).
Here, defendants' counter-complaint alleges the following instances of wrongful conduct: (1) "misrepresenting pertinent facts and insurance policy provisions relating to coverages at issue"; (2) "failing to effectuate a prompt, fair and equitable settlement of plaintiffs' claim"; (3) "compelling the plaintiffs to institute litigation to recover amounts due under the insurance policy"; (4) "compelling plaintiffs to institute litigation to enforce the terms of the insurance policy"; (5) "failing to provide a reasonable explanation of the basis for denying and/or offering to settle or compromise the plaintiffs' claim"; (6) "failing to provide promptly to the plaintiffs a reasonable explanation of the basis in the insurance policy, with respect to the facts of the insured's claim and the applicable law, for the denial of this claim or for an offer to settle or compromise this claim"; (7) "failing to retain, train and supervise competent adjusters to conduct prompt, thorough and impartial investigations to promptly determine the true facts of this claim"; (8) "misrepresenting the law applicable to the policy and its claims handling"; (9) "carrying out unfair and deceptive trade practices in the business of insurance"; and (10) other wrongful conduct. (CC, ECF No. 9 at 54 ¶ 155.) These allegations by themselves cannot survive the motion to dismiss because they merely recite various unidentified subsections of the Nevada statute. And it is unclear how the cited paragraphs of the counter-complaint actually support the above legal conclusions. Stacey v. Mercury Cas. Co., No. 14-814, 2014 WL 3816513, at *3 (D. Nev. Aug. 4, 2014); Ruggieri v. Hartford Ins. Co. of the Midwest, No. 13-00071, 2013 WL 2896967, at *4 (D. Nev. June 12, 2013) ("Because reciting the elements of a cause of action is insufficient to state a claim, [the plaintiff's] Unfair Trade Practices Act claim must be dismissed."). Accordingly, the court DISMISSES the Unfair Trade Practices Act claim, with leave to amend if amendment is possible.
F. Ciminis' Enforcement of Judgment Claim
Plaintiff argues the Ciminis' enforcement of judgement claim cannot proceed for three reasons: (1) the Nevada judgment has not been domesticated in California as required under California Insurance Code section 11580; (2) the Nevada judgment is not for "property damage," rather it represents indemnity for lost money; and (3) the enforcement of judgment claim should be dismissed if the breach of contract claim is dismissed. (ECF No. 10 at 14-15.) The Ciminis counter their claim is a compulsory counterclaim that "must be brought in this forum." (ECF No. 25 at 16.)
Here, the allegations are insufficient to survive plaintiff's motion to dismiss. Specifically, the claim's allegations are as follows: "Plaintiffs have the legal right to enforce the Judgment entered by the Second Judicial District Court [of Nevada] against Defendants Lexington," (CC ¶ 159), and "[t]he Plaintiffs are entitled to this Court's Order confirming their right to execute on the entire Judgment against the Policy and against Defendant Lexington" (id. ¶ 160). However, these allegations do not inform the court of the bases of the claim. The court is left to guess under what authority the Ciminis bring the claim and what relief they seek. Cf. In re Computer Sciences Corp. Derivative Litig., 244 F.R.D. 580, 588 (C.D. Cal. 2007). The court GRANTS the motion to dismiss as to the enforcement of judgment claim with leave to amend if the Ciminis can do so consonant with Rule 11.
V. MOTION TO STRIKE
A. Legal Standard
Rule 12(f) authorizes courts to "strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). A "redundant" matter is defined as the needless repetition of allegations or the inclusion of allegations that "are foreign to the issue." Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005). An "immaterial" matter has no essential or important relationship to the claim for relief being pleaded. Id. An "impertinent" matter does not pertain and is unnecessary to the issues in question. Id. Finally, a "scandalous" matter is that which improperly casts a derogatory light on a party to the action. Id.
The function of a Rule 12(f) motion is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (internal quotation marks omitted). Despite this salutary function, motions to strike are viewed with disfavor because they too are often used as delaying tactics and because of the general policy favoring resolution of cases on the merits. See Sliger v. Prospect Mortgage, LLC, 789 F. Supp. 2d 1212, 1216 (E.D. Cal. 2011). Indeed, a motion to strike will be granted only if "it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Rosales v. FitFlop USA, LLC, 882 F. Supp. 2d 1168, 1179 (S.D. Cal. 2012) (internal quotation marks omitted).
Moreover, in ruling on a motion to strike, a "court[] may not resolve disputed and substantial factual or legal issues . . . ." Whittlestone, 618 F.3d at 973 (internal quotation marks omitted). As with a motion to dismiss, courts view the challenged pleading in the light most favorable to the non-moving party. Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 930 (N.D. Cal. 2013). Ultimately, the decision whether to strike a matter lies within the sound discretion of a district court. Whittlestone, 618 F.3d at 974.
B. Attorneys' Fees and Punitive Damages
Plaintiff seeks to strike defendants' request for attorneys' fees and punitive damages. (ECF No. 10 at 18-19.)
Here, plaintiff has not met its burden under Rule 12(f) to show the Ciminis' request for attorneys' fees and punitive damages should be stricken. "For the purposes of a motion to strike, where a plaintiff has met the basic pleading requirements under the Federal Rules, a plaintiff's damages claim is not immaterial, because whether these damages are recoverable relates directly to the plaintiff's underlying claim for relief [and] is not impertinent, because whether these damages are recoverable pertains directly to the harm being alleged." Rees v. PNC Bank, N.A., No. 14-05232, 2015 WL 1548952, at *5 (N.D. Cal. Apr. 7, 2015) (internal quotation marks omitted). The Ninth Circuit has provided clear guidance in saying that Rule 12(f) does not authorize a district court to strike "a claim for damages on the basis that it is precluded as a matter of law." Ferretti v. Pfizer Inc., 855 F. Supp. 2d 1017, 1029 (N.D. Cal. 2012). Hence, any argument that defendants' request for attorneys' fees in the prayer for relief section of the counter-complaint should be stricken as a matter of law is unavailing, as such an argument does not satisfy Rule 12(f). Id. (reaching the same conclusion under similar circumstances).
As to the request for punitive damages, "in federal court, a plaintiff may include a short and plain prayer for punitive damages that relies entirely on unsupported and conclusory averments of malice or fraudulent intent." Id. at *6. Defendants have done so here, in saying: "Defendant Lexington acted fraudulently, oppressively, and in malicious disregard of the rights of Plaintiffs. Plaintiffs, therefore, seek punitive damages by way of punishment and deterrence in an amount to be determined at trial." (CC ¶ 148.) Plaintiff's motion to strike defendants' request for attorneys' fees and punitive damages is DENIED.
C. Affirmative Defenses in General
Plaintiff also argues defendants' affirmative defenses should be dismissed for lack of factual support. (ECF No. 10 at 20.) Defendants respond plaintiff has not met its burden under Rule 12(f). (ECF No. 25 at 18-20.)
A motion to strike provides an early challenge to a particular defense's legal sufficiency. State of Cal. ex rel. State Lands Comm'n v. United States, 512 F. Supp. 36, 38 (N.D. Cal. 1981). "An affirmative defense, under the meaning of Federal Rule of Civil Procedure 8(c), is a defense that does not negate the elements of the plaintiff's claim, but instead precludes liability even if all of the elements of the plaintiff's claim are proven." Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1173 (N.D. Cal. 2010). "It is a defense on which the defendant has the burden of proof." Id. at 1174. On the other hand, "[a] defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense." Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). While courts rarely grant Rule 12(f) motions to strike affirmative defenses, if an affirmative defense is a negative defense and should instead be included as a denial in the answer, the motion to strike will be granted. See Barnes, 718 F. Supp. 2d at 1173.
A Rule 12(f) motion is proper where a defense is either (1) insufficient as a matter of law or (2) insufficient as a matter of pleading. Dodson v. Strategic Restaurants Acquisition Co. II, LLC, 289 F.R.D. 595, 603 (E.D. Cal. 2013). An affirmative defense is legally insufficient when "it lacks merit under any set of facts the defendant might allege." Id. An affirmative defense is insufficient as a matter of pleading if it fails to give plaintiff "fair notice." "The 'fair notice' required by the pleading standards only requires describing the defense in 'general terms.'" Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1274 (3d ed. 1998)).
1. First and Twenty-Eighth Affirmative Defenses: Failure to State a Claim
Defendants' first affirmative defense provides: "Defendant alleges that the Complaint, and each and every claim for relief stated therein fails to state facts sufficient to constitute a claim for relief as against Defendant." (ECF No. 9 at 26.) Defendants' twenty-eighth affirmative defense provides essentially the same: "Plaintiff has failed to plead the causes of action against Defendants with particularity and plausibility . . . ." (Id. at 30.) Failure to state a claim is not an affirmative defense; rather it is an assertion of a defect in a plaintiff's prima facie case. See Joe Hand Promotions, Inc. v. Estradda, No. 10-02165, 2011 WL 2413257, at *2 (E.D. Cal. June 8, 2011); see also Barnes, 718 F. Supp. 2d at 1174. Accordingly, defendants' first and twenty-eighth affirmative defenses are STRICKEN.
2. Second Affirmative Defense: Laches
Defendants' second affirmative defense provides:
Plaintiff's claims are barred by the doctrine of laches in that it delayed in bringing this action for almost four years after it received notice of the claim; almost two years after the trial on the merits of the damages; seven months after the order of judgment and damages issued by the Second Judicial District Court; and almost six months after Lexington's captive counsel invited the Ciminis to execute on the assets of ELP and/or EPD.(ECF No. 9 at 26.)
To establish the defense of laches, "a defendant must allege neglect or delay in bringing suit to remedy an alleged wrong, which taken together with lapse of time and other circumstances, causes prejudice to the adverse party and operates as an equitable bar." Desert European Motorcars, Ltd. v. Desert European Motorcars, Inc., No. 11-197, 2011 WL 3809933, at *3 (C.D. Cal. Aug. 25, 2011) (internal quotation marks omitted). Here, the allegations of the second affirmative defense do not set forth facts to show prejudice. Hence, the court STRIKES the second affirmative defense.
The court however grants leave to amend because defendants, in their opposition brief, set forth facts that may satisfy the requirement of pleading prejudice. See Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137 (9th Cir. 2001) (noting "new" facts in a plaintiff's opposition papers can be considered by courts in deciding whether to grant leave to amend). For example, defendants assert, "[h]ad Lexington brought its declaratory relief suit in a timely manner, the Ciminis would have been able to make a decision as to whether to accept Silverstar's assignment with actual knowledge of Lexington's positions on coverage that were not disclosed until Lexington filed this action. Thus, the delay by Lexington clearly and unequovically [sic] caused prejudice to the Ciminis." (ECF No. 25 at 19.)
3. Third Affirmative Defense: Mitigation of Damages
Defendants' third affirmative defense provides: "[Lexington] has failed to mitigate its damages, if any there may be." (ECF No. 9 at 26.)
"[C]ourts have held that a generalized statement meets defendant's pleading burden with respect to the affirmative defense of damage mitigation." Bd. of Trs. of San Diego Elec. Pension Trust v. Bigley, Elec., Inc., No. 07-634, 2007 WL 2070355, at *3 (S.D. Cal. July 12, 2007). While this affirmative defense contains a generalized statement, defendants have met their burden here. See Desert European Motorcars, Ltd., 2011 WL 3809933, at *2. The motion to strike it is DENIED.
4. Fifteenth Affirmative Defense: Waiver
Defendants claim "by providing a defense to ELP/EPD, [Lexington] has waived its arguments that there is no potential for a defense and/or indemnity under the policy." (ECF No. 9 at 28.)
"A defense of [w]aiver focuses on intent. If an individual intentionally relinquishes a known right, either expressly or by conduct inconsistent with an intent to enforce that right, he has waived it." Ganley v. Cnty. of San Mateo, No. 06-3923, 2007 WL 902551, at *6 (N.D. Cal. Mar. 22, 2007) (internal quotation marks omitted, alteration in original); see also Waller v . Truck Ins. Exch., Inc., 11 Cal. 4th 1, 31-34 (1995), as modified on denial of reh'g (Oct. 26, 1995). "The courts have repeatedly held that an insurer does not waive or relinquish any coverage defenses it fails to assert at the time of its acceptance of a tender of defense, even when it does not make any express and full reservation of rights for a substantial period of time after the defense has been accepted." Ringler Associates Inc. v. Maryland Cas. Co., 80 Cal. App. 4th 1165, 1189 (2000); see also Waller, 11 Cal. 4th at 31-34. At this stage of litigation, it appears it is a factual question whether this defense is viable, and hence, the determination of its viability is not appropriately resolved on a motion to strike. Cf. Ringler, 80 Cal. App. 4th at 1189 (finding "no evidence respondents ever made any intentional relinquishment of their coverage defenses at any point, despite initially accepting Ringler's tender of defense and funding that defense for two years" (emphasis in original)). The motion to strike this defense is DENIED.
5. Twenty-First Affirmative Defense: Unclean Hands
Defendants allege plaintiff "has engaged in inequitable conduct by, among other things, making factual allegations in the Second Judicial District Court" that were false. (ECF No. 9 at 29.)
The doctrine of unclean hands stems from the legal maxim that one who comes to court seeking equity must do so with clean hands. Blain v. Doctor's Co., 222 Cal. App. 3d 1048, 1059 (1990). "The [unclean hands] doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim." Brown v. Grimes, 192 Cal. App. 4th 265, 282 (2011) (internal quotation marks omitted, alteration in original). As an affirmative defense, unclean hands can be invoked where a plaintiff has engaged in inequitable conduct in connection with the matter in controversy. Dickson, Carlson & Campillo v. Pole, 83 Cal. App. 4th 436, 446 (2000). But even then, it applies "only where it would be inequitable to grant the plaintiff any relief." Id. at 447. "As a general rule, the application of the doctrine of unclean hands is primarily a question of fact." Ins. Co. of N. Am. v. Liberty Mut. Ins. Co., 128 Cal. App. 3d 297, 306 (1982).
Here, at the stage of this litigation, the allegations provide fair notice of the bases of the defense. Defendants allege, among other things, plaintiff made false factual statements during the underlying Nevada proceedings, did not defend and indemnify ELP and EPD as required, and denied ELP and EPD's claims for "improper purpose." (ECF No. 9 at 29.) The court DENIES plaintiff's motion to strike this defense.
The court notes that in finding so, it does not make a final determination that the defense is legally applicable to the facts of this case. See Lovett v. Carrasco, 63 Cal. App. 4th 48, 55 (1998) (the findings of fact on which a court may rely in determining whether the unclean hands doctrine applies must be supported by substantial evidence).
6. Twenty-Second Affirmative Defense: Estoppel
Defendants allege plaintiff is "estopped from bringing this action due to its prior positions taken in the underlying . . . case." (ECF No. 9 at 29.)
"Estoppel is an equitable doctrine invoked to avoid injustice in particular cases." Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 59 (1984). "To establish a defense of estoppel, a party must show that the adverse party, either intentionally or under circumstances that induced reliance, engaged in conduct upon which [the relying party] relied and that the relying party acted or changed [its] position to [its] detriment." Desert European Motorcars, Ltd. v. Desert European Motorcars, Inc., No. 11-197, 2011 WL 3809933, at *3 (C.D. Cal. Aug. 25, 2011) (internal quotation marks omitted, alteration in original). "[T]he party claiming the estoppel must have relied on its adversary's conduct in such a manner as to change his position for the worse[,] and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary's conduct was misleading." Heckler, 467 U.S. at 59.
Here, the allegations are not sufficient to provide fair notice to plaintiff. Defendants allege, "Plaintiff, through its captive counsel, made statements that led to the taking of default and by the Ciminis' seeking to execute upon the assets of ELP and EPD." (ECF No. 9 at 30.) "Lexington knew that . . . the statements made by its captive counsel were false and/or were detrimental to the interests of its insureds." (Id.) And based on those statements, the Ciminis "relied upon the assertions made by Lexington's captive counsel to their detriment." (ECF No. 9 at 30.) Because, however, the allegations do not set forth any facts to indicate what those alleged statements entailed, the allegations do not provide fair notice. Desert European Motorcars, Ltd., 2011 WL 3809933, at *3. Accordingly, the court GRANTS plaintiff's motion to strike defendants' estoppel affirmative defense, with leave to amend if defendants can do so consonant with Rule 11.
7. Fourth through Fourteenth, Sixteenth through Twentieth, Twenty-Third to Twenty-Seventh, and Twenty-Ninth through Thirtieth Affirmative Defenses
As to these affirmative defenses, plaintiff argues, "[t]he vast majority are no more than a formulaic recitation of the elements and all should be struck on this basis." (ECF No. 10 at 20.) Defendants base their opposition on only four defenses, characterizing Lexington's motion as "attempt[ing] to strike four affirmative defenses . . . ." (ECF No. 25 at 18.) Those defenses are: laches, waiver, unclean hands, and estoppel. (Id. at 18-20.)
"Courts will not grant motions to strike unless convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the claim or defense succeed." Novick v. UNUM Life Ins. Co. of Am., 570 F. Supp. 2d 1207, 1208 (C.D. Cal. 2008) (internal quotation marks omitted). This court must "view the pleading under attack in the light most favorable to the pleader." Id. (internal quotation marks omitted). The burden is on the moving party to show a particular matter should be stricken. New York City Employees' Ret. Sys. v. Berry, 667 F. Supp. 2d 1121, 1128 (N.D. Cal. 2009).
Here, plaintiff has not met its burden. Plaintiff makes no specific argument as to why defendants' remaining affirmative defenses should be stricken; rather, it merely makes the one-sentence conclusory argument as noted above. Based on that argument, this court is not convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defenses succeed. The court DENIES plaintiff's motion to strike defendants' fourth through fourteenth, sixteenth through twentieth, twenty-third through twenty-seventh, and twenty-ninth through thirtieth affirmative defenses.
8. Thirty-First Affirmative Defense: Unstated Affirmative Defenses
Defendants' thirty-first affirmative defense alleges that "all possible affirmative defenses may not have been alleged . . . as sufficient facts were not available after reasonable inquiry and upon filing this answer to the complaint, and therefore, [d]efendants reserve the right to amend their answer to allege additional affirmative defenses, if subsequent investigation warrants." (ECF No. 9 at 31.)
"An attempt to reserve affirmative defenses for a future date is not a proper affirmative defense in itself. Instead, if at some later date defendants seek to add affirmative defenses, they must comply with Rule 15 of the Federal Rules of Civil Procedure." Solis v. Zenith Capital, LLC, No. 08-4854, 2009 WL 1324051, at *7 (N.D. Cal. May 8, 2009). Accordingly, defendants' motion to strike the thirty-first affirmative defense is GRANTED.
VI. CONCLUSION
For the foregoing reasons, the court GRANTS in part and DENIES in part each motion. Defendants' amended counter-complaint and answer consistent with this order are due within twenty-one days of the date of this order. This order resolves ECF No. 10.
IT IS SO ORDERED. DATED: September 14, 2015.
/s/_________
UNITED STATES DISTRICT JUDGE