United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
MATTER is before the Court upon Plaintiff's Motion for
Summary Judgment, filed March 21, 2019 (Doc.
36). Having reviewed the parties' briefs and
applicable law, the Court finds that Plaintiff's motion
is well-taken and, therefore, is GRANTED.
Foremost Insurance Company Grand Rapids, Michigan
(“Foremost Insurance Company”) is currently
defending Defendants Samia, Felix, and Omar Rabadi in the
underlying suit in Second Judicial District Court, Bernalillo
County, New Mexico: Jessica and Dennis North v. Omar
Rabadi, et al., No. D-202-CV-2018-00229.
Plaintiff seeks a declaration that it is not required to
defend or indemnify Defendants in that suit, a dog bite case.
the Court notes that multiple docket entries indicate that
mail sent by the Court to Defendants has been returned. The
returned envelopes are generally marked “refused - does
not live here.” United States Magistrate Judge Laura
Fashing issued an order to show cause, directing Defendants
to supply an accurate address. Defendants responded,
asserting that the Court has the correct addresses. Moreover,
Defendants appear to be in actual receipt of each document,
because they have responded to every motion or order to show
cause and have appeared at a scheduling conference.
Therefore, there is no indication that Defendants have not
actually received all documents.
motion for summary judgment may be granted only when
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Summary judgment is
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact. Munoz v. St. Mary Kirwan Hosp.,
221 F.3d 1160, 1164 (10th Cir. 2000). When applying this
standard, the court examines the record and makes all
reasonable inferences in the light most favorable to the
non-moving party. Id. The movant bears the initial
burden of establishing that no genuine issue exists as to any
material fact. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970). Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of
Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
following material facts are undisputed and supported in the
record. Defendants generally either admitted them in their
answer to the complaint or response to the motion for summary
judgment. In the few instances Defendants did dispute a fact,
they did not support those disputes by a citation to the
seeks a declaratory judgment that it does not have a duty to
defend or indemnify Defendants in an underlying suit in the
Second Judicial District Court, Bernalillo County, filed on
January 10, 2018, by Jessica North and Dennis North against
Omar, Samia, and Felix Rabadi, in Cause No.
D-202-cv-2018-00229 (the “underlying suit”).
underlying suit alleges that “Defendant Omar Rabadi
resided in a home owned by his parents, Defendants Samia
Rabadi and Felix Rabadi, located at 9304 Macallan Road NE,
Albuquerque, New Mexico, and is within the vicinity of
Plaintiff Jessica North's home, which is located at 7305
Derickson Ave NE, Albuquerque, New Mexico.” Ex.
properties are approximately 2.7 miles apart. Jessica North
was attacked by Defendants' dogs outside her home.
Defendants dispute the exact distance between the properties,
but that is not relevant to the issues in this motion. It is
undisputed that the properties are not adjacent and are far
underlying suit alleges that Omar Rabadi owned two American
Pit Bull Terriers “commonly known for their aggression
and tenacity as guard dogs.” Ex. A. It
also alleges that “on or about December 6, 2016,
Plaintiff Jessica North was exiting her home to walk her two
leashed dogs, when two pit bulls approached Plaintiff Jessica
North and began attacking her and her two dogs just outside
her front door and within the courtyard of her
property.” Ex. A. As a result, Jessica
North sustained bodily injury. Dennis North alleges he
experienced damages in the form of the loss of consortium
with his wife arising out of the same occurrence.
underlying suit alleges negligence against all Defendants
for, among other things, the failure to properly secure the
property owned by Samia and Felix Rabadi at 9304 Macallan
Road, sufficient to restrain the pit bulls and not allow them
to exit the property. The complaint in the underlying suit
further alleges that Defendants “failed to exercise
reasonable care under the circumstances by failing to
properly secure their dangerous breed dogs” which
caused Plaintiffs to suffer damage and injuries. Doc.
A, ¶ 21, 22.
filed its complaint for declaratory relief on a
homeowner's insurance policy issued July 25, 2018. That
policy was issued to Samia Rabadi with a $300, 000 limit for
premises liability. ...