United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANT ATTU'S MOTION TO
BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE
Covington 18 Partners, LLC ("Covington 18") filed
this quiet title action on January 16, 2019, seeking a
determination that four easements to a parcel of land
transferred with the title. Currently before the Court is
Plaintiffs motion for summary judgment, Dkt. No. 15, and
Defendant Attu, LLC's ("Attu") motion to strike
the motion for summary judgment, Dkt. No. 27. Having reviewed
the motions, the oppositions thereto, the record of the case,
and the relevant legal authorities, the Court will deny
Attu's motion to strike and grant Plaintiff's motion
for summary judgment.
crux of this dispute concerns four access and utility
easements which Plaintiff claims transferred with ownership
after the sale of a parcel of land in Covington, Washington.
The events leading to this dispute are described below.
and 2001, Attu purchased two adjacent parcels of land in
Covington, Washington from James Development, Inc. and
William and Shirley Stewart. Dkt. No. 1-1 at 3. The property
purchased from James Development was a large square-shaped
parcel and the property purchased from the Stewarts was a
narrow strip of land to the west of the parcel purchased from
James Development. Dkt. No. 16-8 at 4. In 2009, Attu
conducted a boundary line adjustment, which subdivided the
plot into Parcels A and B. Id. Parcels A and B are
adjoining, with Parcel A as a square plot in the northeast
corner, and Parcel B in an "L" shape bordering it.
Bonneville Power Administration ("BPA"), a United
States agency, owns the land east of Parcels A and B. Dkt.
No. 15 at 2-3. Defendant Lakeside Industries, Inc.
("Lakeside") owns the land north of Parcels A and
B. Id. BPA's land abuts a public roadway, but
Parcels A and B do not, making the properties landlocked.
Id. A map of the relevant plots, provided by
Plaintiff, is included as Exhibit A.
Creation of Easements
Attu's property access to the roadway, its neighbors
conveyed four easements between 2008 and 2009. Dkt. No. 15 at
4. First, in 2008, prior to the division of Parcels A and B,
'BPA granted Attu an easement for ingress, egress, and
utility rights over BPA's land to Covington Way SE, the
nearest public road (the "October 2008 Easement").
Dkt. No. 16-6. The deed for the October 2008 Easement states
that it "benefits the real property legally described on
attached Exhibits A and B," and Exhibit B describes, in
metes and bounds, the entirety of Attu's property as it
existed in 2008, i.e., both Parcels A and B. Dkt.
Nos. 16-2, 16-3, 16-6 at 4. The deed contains a provision
stating, "[t]his easement and the covenants herein shall
be covenants running with the land and shall be binding upon
and inure to the benefit of the successors, heirs, and
assigns of both parties hereto." Dkt. No. 16-6 at 5.
thereafter, Attu and Lakeside recorded an easement for
ingress, egress, and utilities access over their shared
border (the "Reciprocal Easement"). Dkt. No. 16-7.
The deed for the Reciprocal Easement states that Lakeside
grants a "nonexclusive, perpetual easement to Attu to
run with and benefit the Attu property" and then
describes, in metes and bounds, the entirety of Attu's
property as it existed in 2008. Dkt. Nos. 16-2, 16-3, 16-7 at
3, 13. The deed contains a provision stating, "[t]he
rights and obligations of the parties shall inure to the
benefit of and be binding upon their respective successors
and assigns." Dkt. No. 16-7 at 9.
2009, following the subdivision of the land into Parcels A
and B, BPA granted Attu an easement for access and utilities
along the entire eastern boundary of Attu's property (the
"168th Extension Easement'.'). Dkt. No. 16-9.
The deed describes the easement in metes and bounds as
touching both Parcels AandB. Dkt. Nos. 16-2, 16-3, 16-9 at 6.
The deed provides that it is granted to Attu "and its
assigns." Dkt. No. 16-9 at 3.
BPA granted Attu an easement for utilities from the southeast
corner of the 168th Easement to the road (the "Utilities
Easement"). Dkt. No. 16-10. The deed describes the
easement in metes and bounds as touching the portion of the
168th Extension Easement that is adjacent to Parcel B. Dkt.
Nos. 16-2, 16-3, 16-10 at 6. The deed provides that it is
granted to Attu "and their assigns." Dkt. No. 16-10
Covington 18's Purchase of Parcel B
2012, Plaintiff purchased Parcel B from Attu, using a
standard form Purchase and Sale Agreement ("PSA").
Dkt. No. 15 at 5. Attu alleges that it engaged in significant
negotiations with Plaintiff regarding the purchase of Parcel
B, and the easements specifically. Dkt. No. 25 at 4-6. Attu
alleges that the parties initially discussed Plaintiff
purchasing both parcels, but the cost was too high for
Plaintiff, so the parties entered an option agreement giving
Plaintiff the right to purchase Parcel A in'the next five
years, so that Plaintiff could eventually develop both
parcels. Id. The four easements were not addressed
in the PSA, option agreement, or deed for Parcel B. Dkt. No.
15 at 5.
early version of the PSA, drafted while still in
negotiations, included a "page six," which
contained a provision addressing transferal of personal
property. Dkt. Nos.' 15 at 19, 25 at 5-6. Specifically,
it provided that "[t]his sale includes all right, title
and interest of Seller to the following tangible personal
property: [None]." Dkt. No. 26-8 at 7. During the course
of negotiations for Parcel B, the parties decided to exclude
page six from the final PSA. Dkt. Nos. 15 at 19, 25 at
5-6.oThe parties agreed, however, to include the same page
six of the standard agreement in the option agreement. Dkt.
No. 25 at 6. Attu alleges that the reason for the exclusion
of page six from the PSA and its inclusion in the option
agreement was that as part of the negotiations the parties
agreed to transfer all the easements and rights of way only
when Plaintiff exercised the option to purchase Parcel A.
Id. at 6-7.
The Current Dispute
years following the purchase of the Parcel B, Plaintiff used
all four easements for access and utilities. Dkt. No. 15 at
5. In 2015, however, Attu claimed that it had not conveyed
the easements to Plaintiff and that Plaintiff did not have an
interest in them until it chose to exercise the option
agreement. Id. Around this time, Plaintiff entered
into negotiations for the sale of Parcel B to a third party,
but the third party terminated negotiations, in part,
according to Plaintiff, because of the dispute over the
easements. Dkt. No. 1-1 at 6.
2017, Attu sold Parcel A to Covington Land LLC
("Covington Land"). Dkt. No. 15 at 6-7. In the
agreement for the sale, Attu stated that the four easements
remained in Attu's interest and that Attu retained the
right to grant Parcel A's easement rights to the owner of
Parcel B. Id. After the sale of Parcel A, Attu
attempted to block Plaintiffs use of the easements by placing
a truck, trailer, and ecology blocks on the easements. Dkt.
No. 1-1 at 7-8. Attu also sought to have Covington Land block
Plaintiffs access to the easements, but Covington Land did
not comply with Attu's requests. Dkt. No. 15 at 8.
2016, Plaintiff filed a declaratory judgment suit in King
County Superior Court, seeking judgment that all four of the
easements transferred with the sale of Parcel B. Dkt. No. 15
at 6. While a decision was pending, Plaintiff voluntarily
dismissed the suit without prejudice due to the death of the
principal and managing member of the company, Laurent Girard.
Id. Attu did not file an objection to the dismissal.
Id. Discovery had taken place before dismissal,
including a deposition of Girard. Id.
years later, on January 16, 2019, Plaintiff filed this quiet
title action in King County Superior Court. Dkt. No. 1-1. On
February 21, 2019, Defendant United States, on behalf of
itself, the Department of Energy, and BPA, removed to this
Court under 28 U.S.C. § 1442(a)(1). Dkt. No. 1.
Plaintiff filed a motion for summary judgment on April 4,
2019. Dkt. No. 15. Attu subsequently filed a motion to strike
the motion for summary judgment on April 25, 2019. Dkt. No.
response to the quiet title action, several parties have
filed additional claims. Attu filed a counterclaim against
Plaintiff for tortious interference with a contractual
relationship and a crossclaim against Covington Land for
tortious interference with a business expectancy. Dkt. No.
11. Attu also filed a third-party complaint against Fidelity
National Title Insurance Company for unfair or deceptive acts
or practices in its role as an escrow and closing agent for
the Parcel B sale. Dkt. No. 41. Covington Land filed a
counterclaim against Plaintiff for quiet title to the
easements and an injunction for.trespass if the Court
concludes that the easements do not belong to Plaintiff. Dkt.
No. 20. Covington Land also filed a crossclaim against Attu
for contractual indemnity and a third-party complaint against
John Sinclair, the managing member of Attu, and Jane Doe
Sinclair, his wife, for contractual indemnity. Id.
Attu also filed a motion for leave to file a third-party
complaint, but proceeded to file the complaint without leave,
per the Court's standing order. Dkt. Nos. 31, 40.
MOTION TO STRIKE
Court will first address Attu's motion to strike the
motion for summary judgment, Dkt. No. 27, as it will
determine the Court's disposition of the motion for
filed a motion to strike the motion for summary judgment, but
does not cite a Federal Rule of Civil Procedure as a basis
for its motion. Dkt. No. 27 at 2-3. Rule 12(f) provides that
the Court may strike from the record "an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter" in a pleading. Fed.R.Civ.P. 12(f). In
its motion, however, Attu seeks something more akin to a
delay than a strike, stating that "Plaintiff brought its
motion before Attu has had time to conduct discovery on its
affirmative defenses of laches and equitable estoppel, and
before any party has conducted any discovery." Dkt. No.
27 at 2.
summary judgment is more appropriately asserted under Rule
56(d), which allows the Court to defer or deny judgment if
the nonmovant shows it "cannot present facts essential
to justify its, opposition." Fed.R.Civ.P. 56(d). Under
Rule 56(d), the party requesting a delay in summary judgment
must "show that (1) it has set forth in affidavit form
the specific facts it hopes to elicit from further discovery;
(2) the facts sought exist; and (3) the sought-after facts
are essential to oppose summary judgment." Stevens
v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018)
(quoting Family Home & Fin. Ctr., Inc. v. Fed. Home
Loan Morlg. Corp., 525 F.3d 822, 827 (9th Cir. 2008)).
The party does not have to name precisely what discovery will
reveal, but must be seeking evidence that is more than
argues that the Court should grant its motion to strike
because it has not had sufficient time to conduct discovery
on its affirmative defenses of laches and equitable estoppel,
and that it would therefore be unfair to grant summary
judgment at this point. Dkt. No. 27 at 2-3. In
"Declaration of Patrick J. Schneider," Attu's
This case was removed to this District Court by the
Bonneville Power Administration before most of the parties,
including Attu, had answered Plaintiffs Complaint. Defendant
Covington Land, LLC only filed its answer yesterday [April
24th], the day before Attu's response is due to
Plaintiffs motion for summary judgment. Covington Land
included a third-party action against ATTU and its
principals, and I will not have time to read this pleading,
let alone evaluate it, until after I respond to Plaintiffs
motion for summary judgment. ...