3:08-cv-05754

W.D. Wash.

Sep 2, 2016

BRENDAN MCKOWN, Plaintiff, v. SIMON PROPERTY GROUP and IPC INTERNATIONAL CORPORATION, Defendants.

CASE NO. C08-5754BHS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

September 2, 2016

ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT WITHOUT PREJUDICE

This matter comes before the Court on Defendants Simon Property Group, Inc. (“Simon“) and IPC International Corporation‘s (“IPC“) (collectively “Defendants“) motions for summary judgment (Dkts. 139, 163). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies the motions without prejudice for the reasons stated herein.

I. PROCEDURAL HISTORY

On November 12, 2008, Plaintiff Brendan McKown (“McKown“) filed a complaint against Defendants in Pierce County Superior Court for the State of Washington. Dkt. 2. McKown asserts causes of action against Defendants for premises liability, negligent failure to provide adequate security, negligent performance of duty, negligent hiring and/or failure to provide security personnel, and breach of contract. Id. On December 17, 2008, Defendants removed the matter to this Court. Dkt. 1.

After the entry of summary judgment, an appeal, and the Washington Supreme Court answering certified questions, the Ninth Circuit remanded the matter for further proceedings. See McKown v. Simon Prop. Grp., Inc., 182 Wn.2d 752 (2015); Dkt. 114.

On May 5, 2016, Simon filed a motion for summary judgment. Dkt. 139. On June 15, 2016, IPC filed a motion for summary judgment. Dkt. 163. On July 7, 2016, the Court granted McKown‘s motion to compel and extended discovery. Dkt. 172.

II. DISCUSSION

If facts are unavailable to the nonmovant, the Court may deny a motion for summary judgment. Fed. R. Civ. P. 56(d)(1).

In this case, Defendants’ motions are based on McKown‘s failure to produce sufficient evidence. Under the Court‘s interpretation of McKown, the Court granted McKown‘s motion to compel the production of potentially relevant evidence. Dkt. 172 (“the scope of relevant evidence has been broadened to include evidence of Simon‘s past experience, the place of the business, and the character of the business.“). As such, the Court concludes that facts are unavailable to McKown to justify an opposition on the issue of duty. Therefore, the Court denies Defendants’ motions without prejudice. At the appropriate time, Defendants may either renote their motions or file new motions.

III. ORDER

Therefore, it is hereby ORDERED that Defendants’ motions for summary judgment (Dkts. 139, 163) are DENIED without prejudice.

Dated this 2nd day of September, 2016.

BENJAMIN H. SETTLE

United States District Judge