Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Liberty Mutual Insurance Company v. Frank Coluccio Construction Co., Inc.

United States District Court, W.D. Washington, Seattle

November 7, 2019

LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff,
v.
FRANK COLUCCIO CONSTRUCTION CO., INC., Defendant.

          ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Plaintiff's Motion for a Temporary Restraining Order. (Dkt. No. 6.) Having considered the Motion, the Response (Dkt. No. 11), and all related papers, the Court DENIES Plaintiff's Motion.

         Background

         Plaintiff Liberty Mutual Insurance Company (“Liberty Mutual”) brings suit against Defendant Frank Coluccio Construction Company (“Coluccio”) for indemnity, breach of contract, specific performance, and injunctive relief and moves for a TRO to stop Coluccio from selling its assets without the prior consent of Liberty Mutual. (See Dkt. No. 6; Dkt. No. 1 (“Compl.”).)

         In January 2015 Coluccio was selected to perform the work on King County's North Creek Interceptor Sewer Improvement Project. (Compl., ¶¶ 3.5-6.) Liberty Mutual issued the performance bond for Coluccio's work on the Project, in the penal sum of $29, 933, 000 and Liberty Mutual and Coluccio entered into an indemnity agreement. (Id., ¶¶ 3.1-3.3, 3.7, 3.9.) Coluccio proceeded with the Project work but encountered substantial difficulties that Coluccio attributes to King County's project specifications. (Id., ¶ 3.9.)

         King County terminated Coluccio on December 21, 2016, alleging Coluccio was in material default. (Id., ¶ 3.11.) The same month, King County filed a complaint against Coluccio for breach of contract and money damages; this suit remains pending in King County Superior Court. (Id., ¶ 3.3.15.) In April 2017, Liberty Mutual elected to take over and complete all remaining work on the Project. (Id., ¶ 3.16.) But King County rejected Liberty Mutual's offer and amended its Superior Court complaint, alleging that Liberty Mutual had violated its bond obligations. (Dkt. No. 6 at 3.)

         In early 2017 Coluccio informed Liberty Mutual that it had a net value of $28, 000, 000.00. (Dkt. No. 6 at 4.) Liberty Mutual claims that since that time, Coluccio has discontinued operations, while selling assets and making distributions to shareholders. (Id.) Liberty Mutual filed a UCC Financing Statement on July 23, 2017 but contends that Coluccio has continued to liquidate assets while failing to inform Liberty Mutual of these sales. (Compl., ¶ 3.17; Dkt. No. 6 at 5.) Coluccio, on the other hand, contends that Liberty Mutual has been receiving regular reports about the asset sales, which were conducted in the ordinary course of business. (Dkt. No. 11 at 9; Dkt. No. 13, Declaration of Joseph J. Coluccio (“Coluccio Decl”), ¶¶ 3-8, 10.)

         On June 5, 2019, Liberty Mutual filed a complaint against Coluccio in King County Superior Court that is markedly similar to the Complaint here. (See Dkt. No. 14, Declaration of Malaika M. Eaton (“Eaton Decl.”), Ex. 1.) On October 11, 2019, Liberty Mutual's Superior Court action was “linked” with King County's pending lawsuit against Coluccio and Liberty Mutual. (Id. Ex. 11.) Liberty Mutual voluntarily dismissed its Superior Court complaint on October 14 and filed the present action on October 16, 2019. (Id., Ex. 12; Dkt. No. 1.)

         Liberty Mutual now seeks a TRO from this Court preventing Coluccio from selling its assets without the prior consent of Liberty Mutual. (Dkt. No. 6.)

         Discussion

         I. Jurisdiction

         As a preliminary matter, Coluccio contends that the Court lacks subject matter jurisdiction because Liberty Mutual's dismissal of the King County Superior Court complaint was “procedurally improper.” (Dkt. No. 11 at 13.) But Coluccio cites to no rule that prohibits a plaintiff from dismissing its own claims, nor does Coluccio explain how this Court sits in review of the procedural propriety of Liberty Mutual's actions in Superior Court. (Dkt. No. 11 at 2.) Because the Complaint here sufficiently alleges diversity between Liberty Mutual, a Massachusetts corporation, and Coluccio, a Washington Corporation, and the amount in controversy exceeds $75, 000, exclusive of costs and interest, the Court finds it has diversity jurisdiction pursuant to 8 U.S.C. § 1446. (Compl., ¶ 2.1); Kang v. Marathon Funding Servs., Inc., No. C19-0829-JCC, 2019 WL 2952958, at *2 (W.D. Wash. July 9, 2019).

         II. Temporary Restraining Order

         A plaintiff seeking preliminary relief is required to demonstrate that irreparable injury is likely in the absence of an injunction. Winter v. Nat. Res. Def. Council, Inc., 555 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.