1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 JEFFREY JOHNSON, Case No.2:22-CV-532 JCM (DJA)

8 Plaintiff(s), ORDER 9 v.

10 USAA CASUALTY INSURANCE COMPANY, 11 Defendant(s). 12

13 Presently before the court is plaintiff Jeffrey Johnson’s motion for partial summary 14 judgment. (ECF No. 171). Defendant filed a response (ECF No. 176), to which plaintiff replied 15 (ECF No. 178). 16 Also before the court is plaintiff’s motion to remand to state court.1 (ECF No. 182). 17 Defendant filed a response (ECF No. 188), to which plaintiff replied (ECF No. 190). 18 I. BACKGROUND 19 This case involves an insurance coverage dispute. The parties are familiar with the facts 20 of this case, and the court does not recite them herein. (See ECF No. 179). Plaintiff moves for 21 summary judgment as to defendant’s alleged cooperation defense. (ECF No. 171). Specifically, 22 he argues that defendant voluntarily withdrew this affirmative defense in its amended answer filed 23 on May 31, 2024. (Id.). 24 . . . 25 26 27 1 Given the denial of plaintiff’s motion to amend his complaint, (ECF No. 201), plaintiff’s motion to remand (ECF No. 182) is denied as moot. 28 1 II. LEGAL STANDARD 2 The Federal Rules of Civil Procedure allow summary judgment when the pleadings, 3 depositions, answers to interrogatories, and admissions on file, together with the affidavits (if any), 4 show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment 5 as a matter of law.” Fed. R. Civ. P. 56(a). Information may be considered at the summary 6 judgment stage if it would be admissible at trial. Fraser v. Goodale,

, 1036 (9th Cir. 7 2003) (citing Block v. Los Angeles,

, 418–19 (9th Cir. 2001)). A principal purpose 8 of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. 9 v. Catrett,

, 323–24 (1986). 10 In considering evidence at the summary judgment stage, the court does not make credibility 11 determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most 12 favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809

, 630–31 (9th Cir. 1987). 14 When the non-moving party bears the burden of proof at trial, the moving party can meet 15 its burden on summary judgment in two ways: (1) by presenting evidence to negate an essential 16 element of the non-moving party’s case; or (2) by demonstrating that the non-moving party failed 17 to make a showing sufficient to establish an element essential to that party’s case on which that 18 party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving 19 party fails to meet its initial burden, summary judgment must be denied, and the court need not 20 consider the non-moving party’s evidence. See Adickes v. S.H. Kress & Co.,

, 159– 21 60 (1970). 22 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 23 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith 24 Radio Corp.,

(1986). To establish the existence of a factual dispute, the 25 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 26 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 27 versions of the truth at trial.” T.W. Elec. Serv., Inc., 809 F.2d at 630. 28 . . . 1 However, the nonmoving party cannot avoid summary judgment by relying solely on 2 conclusory allegations that are unsupported by factual data. See Taylor v. List,

, 3 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the 4 pleadings and set forth specific facts by producing competent evidence that shows a genuine issue 5 for trial. See Celotex,

. If the nonmoving party’s evidence is merely colorable or 6 is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, 7 Inc.,

, 249–50 (1986). 8 III. DISCUSSION 9 As an initial matter, noncooperation is an affirmative defense that must be raised in a 10 responsive pleading, or it is otherwise waived. See Corcoran v. Am. Fam. Mut. Ins. Co. S.I., 634

(W.D. Wash. 2022); see also Matchniff v. Great Nw. Ins. Co.,

(D. Or. 2016). 13 Here, defendant alleged a noncooperation defense in its April 2022 answer to plaintiff’s 14 complaint. (ECF No. 6). However, defendant omitted this affirmative defense from its May 2024 15 amended answer. (ECF No. 133). 16 Thus, plaintiff argues that defendant abandoned this defense. Defendant opposes, arguing 17 that it asserted the cooperation defense in its amended answer by alleging that “[p]laintiff’s claims 18 for relief are barred or reduced by the terms, provisions, limitations, and exclusions in the 19 [p]olicy.” (ECF No. 133; ECF No. 176). This argument is unavailing. 20 “The key to determining the sufficiency of pleading an affirmative defense is whether it 21 gives plaintiff fair notice of the defense.” Wyshak v. City Nat’l Bank,

(9th Cir. 22 1979). While fair notice does not require a detailed statement of facts, it does mandate a defendant 23 state the nature and grounds for an affirmative defense. See Conley v. Gibson,

, 47– 24 48 (1957). The court finds that the alleged cooperation defense asserted in defendant’s amended 25 answer provides inadequate notice. 26 Moreover, on May 16, 2024, Magistrate Judge Albregts held a hearing on defendant’s 27 motion for protective order, where defense counsel confirmed that they would not proceed with a 28 cooperation defense. (ECF No. 134 at 8). Thus, given defendant’s abandonment of its affirmative 1 defense and its explicit representation that the defense would not be pursued, summary judgment 2 is appropriate. 3 IV. CONCLUSION 4 Accordingly, 5 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s motion for 6 partial summary judgment (ECF No. 171) be, and the same hereby is, GRANTED. 7 IT IS FURTHER ORDERED, ADJUDGED, and DECREED that plaintiff’s motion to 8 remand (ECF No. 182) be, and the same hereby is, DENIED.

9 DATED July 23, 2025. 10

11 ______________________________________ 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28