Lister v. Hyatt Corp., CASE NO. C18-0961JLR

• Decision Date: 15 October 2019
• Docket Number: CASE NO. C18-0961JLR
• Court: U.S. District Court — Western District of Washington
• Parties: KATHRYN LISTER, Plaintiff, v. HYATT CORPORATION, Defendant.

KATHRYN LISTER, Plaintiff, v. HYATT CORPORATION, Defendant.

CASE NO. C18-0961JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

October 15, 2019

ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES 1, 2, AND 4-12

I. INTRODUCTION

Before the court is Plaintiff Kathryn Lister's motion for summary judgment on or to strike Defendant Hyatt Corporation's ("Hyatt") affirmative defenses 1, 2, and 4-12. (See Mot. (Dkt. # 22).) Hyatt opposes the motion. (See Resp. (Dkt. # 24).) The court has considered the motion, the submissions filed in support of and in opposition to the

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// motion, the relevant portions of the record, and the applicable law. Being fully advised,¹ the court DEFERS RULING in part and DENIES in part Ms. Lister's motion. The court DIRECTS the Clerk to renote Ms. Lister's motion for fourteen (14) days from the filing date of this order.

II. BACKGROUND

This matter arises from Ms. Lister's alleged 2017 slip and fall at the Hyatt Regency Bellevue. (See Compl. (Dkt. # 1-2) ¶¶ 2.1-2.8.) Ms. Lister alleges that on June 15, 2017, she slipped and fell in vomit near the entrance to the women's restroom next to the Hyatt Regency Bellevue's lobby. (See id.) Ms. Lister alleges she incurred injuries from the fall. (See id. ¶ 3.4.)

Hyatt states that the identity of the person who vomited is unknown. (See Resp. at 2.) Hyatt further states that no one reported the vomit prior to Ms. Lister's fall or asked Hyatt to clean it up. (See id. (citing Skinner Decl. (Dkt. # 25) ¶ 2, Ex. 1 ("Hugo-Taggart Dep.") at 30:19:31:1, 47:15-48:18, 76:16-77:18).) However, the deposition testimony that Hyatt cites does not necessarily support this conclusion. In her deposition, Ms. Roxanne Hugo-Taggart testifies as follows:

Q: Did anybody tell you about the spill on the floor of the bathroom?

A: I don't remember being reported the spill. But once I looked at my emails, it was - I had written that the 13 Coins hostess had informed me.

Q: Okay. Do you know what time that was?

A: I didn't write in the email what time it was. Again, I would have to speculate exactly what I wrote down. But, you know, in the following email chains, I said before midnight.

Q: Do you know when Kathryn fell, what time?

A: I would have to speculate . . . exactly what time, but I wrote around midnight, I think I wrote 12:05ish.

Q: Do you know where you got that time from?

A: Looking at the time on the computer and writing it down on a note.

Q: Do you know whether that the time would have been when you learned about from the person from 13 Coins?

A: I don't remember.

Q: Do you know what time Kathryn fell?

A: No.

(Hugo-Taggart Dep. at 30:22-31:19.) Although Ms. Hugo-Taggart's testimony is not completely clear, it can be interpreted as supporting the notion that Hyatt received notice of vomit on the floor prior to Ms. Lister's alleged fall.

Hyatt filed an amended answer to Ms. Lister's complaint and asserted 12 affirmative defenses. (See Am. Answer (Dkt. # 11) at 3-6.) Ms. Lister served the following interrogatory inquiring as to Hyatt's factual basis, if any, for each of its affirmative defenses:

INTERROGATORY NO. 1: State the facts upon which you base any affirmative defense to this lawsuit including the identities of any non-parties you allege may be liable for [Ms. Lister's] damages.

(See Mot. at 3.)² Hyatt responded to the interrogatory. (See id. at 3-5.) The court will address Hyatt's response to the interrogatory, as necessary, in its analysis of eachchallenged affirmative defense below. Following receipt of Hyatt's response to her interrogatory, Ms. Lister filed the present motion. (See Mot.) The court now addresses Ms. Lister's motion.

III. ANALYSIS

A. Legal Standards

Ms. Lister brings her motion primarily as one for partial summary judgment under Federal Rule of Civil Procedure 56. (See Mot. at 6 (reciting the summary judgment standard).) Although courts sometimes construe motions for partial summary judgment on affirmative defenses as motions to strike under Federal Rule of Civil Procedure 12(f), see Kerzman v. NCH Corp., No. C05-1820JLR, 2007 WL 765202 at *7 (W.D. Wash. Mar. 9, 2007), Rule 56(a) expressly states that a party may move for summary judgment on a "claim or defense," see Fed. R. Civ. P. 56(a). Further, the Ninth Circuit has at least implicitly endorsed such motions. See Moore v. Safeco Ins. Co. of Am., 549 F. App'x 651, 654 (9th Cir. 2013) (stating that "the district court did not abuse its discretion in denying the [plaintiff's] initial motion for partial summary judgment on [the defendant's] fifth affirmative defense pending the completion of reasonable discovery pursuant to Federal Rule of Civil Procedure 56(d)"); see also Ackerson v. City of White Plains, 702 F.3d 15, 21 (2d Cir. 2012), as amended (Dec. 4, 2012) (stating that "the district court should have granted [the plaintiff's] motion for partial summary judgment on [the defendant's] probable cause affirmative defense"). The court, therefore, applies asummary judgment standard to portions of Ms. Lister's motion as described in the court's analysis section below.

Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates "that 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. "If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact, the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment[, but instead] must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (internal citations and quotation marks omitted). The court is "required to view the facts and draw reasonable inferences in the light most favorable to the [non-moving] party." Scott v. Harris, 550 U.S. 372, 378 (2007).

Ms. Lister also cites Federal Rule of Civil Procedure 12(f), which states that "[t]he court may strike from a pleading an insufficient defense . . . ." (See Mot. at 1 (citing Fed.

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//R. Civ. P. 12(f)).)³ As discussed below in the analysis section of this order, the court applies Rule 12(f) to portions of Ms. Lister's motion. Rule 12(f) authorizes the court to strike from any pleading "any redundant, immaterial, impertinent, or scandalous matter."⁴ Fed. R. Civ. P. 12(f). A party may bring a motion to strike within 21 days after the filing of the pleading under attack. Fed. R. Civ. P. 12(f)(2). The court, however, may make appropriate orders to strike under Rule 12(f) at any time on its own initiative. See Fed. R. Civ. P. 12(f)(1). Thus, the court may "consider untimely motions to strike and to grant them if doing so seems proper." 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1380 (3d ed. 1998). When considering a motion to strike, the court must viewthe pleadings in the light most favorable to the pleading party. See, e.g., In re 2TheMart.com Secs. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).

In general, courts disfavor motions to strike, given the strong policy preference for resolving issues on the merits. See, e.g., Chao Chen v. Geo Grp., Inc., 297 F. Supp. 3d 1130, 1132 (W.D. Wash. 2018); see also Capella Photonics, Inc. v. Cisco Sys., Inc., 77 F. Supp. 3d 850, 858 (N.D. Cal. 2014) ("Motions to strike are regarded with disfavor because of the limited importance of pleadings in federal practice and because they are often used solely to delay proceedings.") (quotation marks and alterations omitted). Nonetheless, "where [a] motion [to strike] may have the effect of making the trial of the action less complicated, or have the effect of otherwise streamlining the ultimate resolution of the action, the motion to strike will be well taken." California v. United States, 512 F. Supp. 36, 38 (N.D. Cal. 1981). Indeed, the function of Rule 12(f) is "to avoid the expenditure of time and money that must arise from litigating spurious issues by disposing of those issues prior to trial. . . . ." Whittlestone, Inc. 618 F.3d at 973 (quoting Fantasy, Inc., 984 F.2d at 1527). Whether to grant a motion to strike lies within the discretion of the district court. Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1032 (C.D. Cal. 2002).

B. Affirmative Defense 1: Failure to State a Claim

Hyatt's first affirmative defense is that Ms. Lister "fails to state a claim upon which relief can be granted." (Am. Answer at 3.) Ms. Lister asks the court to grant summary judgment against Hyatt on this affirmative defense on ground that it "'is not a proper affirmative defense.'" (See Mot. at 7-8 (quoting Powell v. Union Pac. R.R. Co.,864 F. Supp. 2d 949, 962-63 (E.D. Cal. 2012)).) The court declines to do so. Several district courts in the Ninth Circuit have concluded that "failure to state a claim" is not technically an affirmative defense, but rather asserts a defect in the plaintiff's prima facie case. See, e.g., Savage v. Citibank, N.A., No. 14-cv-03633-BLF, 2015 WL 4880858, at *4 (N.D. Cal. Aug. 14, 2015) ("[F]ailure to state a claim . . . may not technically be [an] affirmative defense[] . . . ."); Jackson v. Persolve, LLC, No. 14-CV-00725-LHK, 2014 WL 4090809, at 86 (N.D. Cal. Aug. 19, 20140 ("The Court agrees with Plaintiff that failure to state a cause of action is not an affirmative defense."); Incase Designs, Inc. v. Marware, Inc., No....