Little Butte Prop. Owners Water Ass'n v. Bradley, : 2:17-CV-162-RMP

• Court: United States District Courts. 9th Circuit. Eastern District of Washington
• Citation: 332 F.Supp.3d 1289
• Decision Date: 30 July 2018
• Docket Number: NO: 2:17-CV-162-RMP,: 2:17-CV-162-RMP
• Parties: LITTLE BUTTE PROPERTY OWNERS WATER ASSOCIATION, a Washington nonprofit corporation, Plaintiff/Counterclaim-Defendant, v. Ken B. BRADLEY, an individual, Defendant/Counterclaimant, Ken B. Bradley, Third-Party Plaintiff, v. Chelan County; Chelan County Sheriffs Office; Officer Dominic Mutch; Officer Chris Eakle; Officer Mike Lamon; and Jane and or John Doe Officers 1-10, Third-Party Defendants.

332 F.Supp.3d 1289

LITTLE BUTTE PROPERTY OWNERS WATER ASSOCIATION, a Washington nonprofit corporation, Plaintiff/Counterclaim-Defendant,
v.
Ken B. BRADLEY, an individual, Defendant/Counterclaimant,

Ken B. Bradley, Third-Party Plaintiff,
v.
Chelan County; Chelan County Sheriffs Office; Officer Dominic Mutch; Officer Chris Eakle; Officer Mike Lamon; and Jane and or John Doe Officers 1-10, Third-Party Defendants.

NO: 2:17-CV-162-RMP

United States District Court, E.D. Washington.

Signed July 30, 2018

332 F.Supp.3d 1293

Honea Lee Lewis, IV, Jeffers Danielson Sonn & Aylward PS, Wenatchee, WA, for Plaintiff/Counterclaim-Defendant.

Drew Douglas Dalton, The Ford Law Offices, Spokane Valley, WA, for Defendant/Counterclaimant.

ORDER GRANTING SUMMARY JUDGMENT MOTIONS

ROSANNA MALOUF PETERSON, United States District Judge

BEFORE THE COURT are motions for summary judgment from Plaintiff and

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Counterclaim Defendant Little Butte Property Water Association ("Little Butte"), ECF No. 40, and from Third Party Defendants Chelan County, Chelan County Sheriff's Office, and individually named Chelan County Sheriff's Deputies Mike Lamon, Chris Eakle, and Dominic Mutch (the "Chelan County Defendants"), ECF No. 57. Little Butte seeks summary judgment in its favor for injunctive relief and damages against Defendant and Counterclaimant Ken Bradley. ECF No. 40. The Chelan County Defendants seek an order of dismissal with prejudice of Mr. Bradley's counterclaims against Little Butte. ECF No. 57.

Although Mr. Bradley requested oral argument for Little Butte's summary judgment motion, the Court finds that it would not be assisted by oral argument from the parties on the matters raised by that motion and declines to schedule the matter for argument.¹ Consequently, having reviewed all submitted documents related to the motions, and the relevant law, the Court grants both motions for summary judgment, and enters judgment for the Chelan County Defendants and Little Butte.

BACKGROUND

Mr. Bradley's Failure to File Controverting Statements of Facts

The Chelan County Defendants request that the Court accept as undisputed their statement of facts in support of their motion for summary judgment because Mr. Bradley did not file an opposing statement of material fact as required by Local Rule 56.1, nor any exhibits to rebut the Chelan County Defendants' statement of material facts. Similarly, Little Butte argues that the two unsigned, undated, and unsworn declarations that Mr. Bradley submitted with his response to Little Butte's summary judgment motion, one from Mr. Bradley and the other from his counsel, do not comply with 28 U.S.C. § 1746, and do not provide any admissible evidence to controvert Little Butte's statement of material facts in support of its motion for summary judgment.

A party must support an assertion that a fact is genuinely disputed by citation to particular materials in the record, including pleadings, discovery, and affidavits. Fed. R. Civ. P. 56(c).

Rule 56(e), Fed. R. Civ. P., provides:

If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support address the fact;

(2)consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or

(4) issue any other appropriate order.

In addition, Local Rule ("LR") 56.1(b) provides:

Any party opposing a motion for summary judgment must file with its responsive memorandum a statement in the form prescribed in (a), setting forth the specific facts which the opposing party asserts establishes a genuine issue of material fact precluding summary judgment. Each fact must explicitly identify any fact(s) asserted by the moving

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party which the opposing party disputes or clarifies. (E.g.: ‘Defendant's fact # 1: Contrary to plaintiff's fact # 1, ....’) Following the fact and record citation, the opposing party may briefly describe any evidentiary reason the moving party's fact is disputed. (E.g.: "Defendant's supplemental objection to plaintiff's fact # 1: hearsay.")

LR 56.1(d) further provides: "In determining any motion for summary judgment, the Court may assume that the facts as claimed by the moving party are admitted to exist without controversy except as and to the extent that such facts are controverted by the record set forth in (b)."

A court resolving a motion for summary judgment "may substitute an unsworn declaration for a sworn affidavit if the declaration complies with 28 U.S.C. § 1746." United States v. Ritchie , 342 F.3d 903, 909 (9th Cir. 2003). Pursuant to 28 U.S.C. § 1746, the declaration must be signed under penalty of perjury. The declarations submitted by Mr. Bradley in support of his response to Little Butte's summary judgment motion, ECF Nos. 66-1 and 66-2, are not signed or dated. In addition, the declarations refer to exhibits that were not attached or otherwise filed, and the declarations themselves do not provide the information necessary to determine whether the declarations were made on Mr. Bradley's and his counsel's personal knowledge. See Fed. R. Civ. 56(c)(4).

There has been no request from Mr. Bradley to supplement the record, and the Court finds no justifiable reason to extend Mr. Bradley an opportunity to do so, particularly given that the Court granted him an extended opportunity to respond to the Chelan County Defendants' motion for summary judgment. See ECF No. 68. Therefore, the Court deems the facts as presented by the Chelan County Defendants and Little Butte to be undisputed.

Outset of Dispute

Little Butte delivers potable water to 32 residential "user members" and "a few nonmember residential users," as well as two commercial establishments. ECF No. 46 at 2.

Mr. Bradley owns residential property outside of Chelan. The previous owners of the property sought a judicial determination of the property's relationship with the Little Butte water system. See ECF No. 46 at 2, 7–10. The result of that litigation was a judgment, issued in 1982, finding that Little Butte is obligated to provide water to the residential property and, in return, the property owners are required to pay the fees and assessments associated with water service from Little Butte. Id.

Little Butte's potable water delivery system was developed in approximately 1960 and involves pumping water from Lake Chelan through "a pipeline easement that runs over 3000 linear feet ... to the [Little Butte] pump station, water filtration plant, and storage tanks." ECF No. 46 at 2. Mr. Bradley's property is subject to a portion of that pipeline easement.

By summer 2013, the Little Butte water system had begun to deteriorate and fail, including a leak around July 2013 that caused mud to run onto a local highway. On or around September 21, 2013, Little Butte determined that it would need to replace portions of the system.

The replacement work was scheduled to begin on October 4, 2013, with an anticipated nineteen work days needed to complete the project. However, Mr. Bradley inhibited Little Butte's contractor's access to his property on October 4. In a letter that indicates on its face that it was emailed to Little Butte on October 4, Mr. Bradley listed fifteen items that would be required for him to allow access to his

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property for the work on the pipeline. ECF No. 46 at 12. On October 8, 2013, Mr. Bradley conveyed to Little Butte, through a representative, that he would allow access to his property once he received proof of insurance and a copy of the easement from Little Butte. ECF No. 46 at 3. Little Butte asserts that it provided that documentation to Mr. Bradley on October 10, 2013. ECF Nos. 46 at 3; 50 at 2. However, Mr. Bradley did not allow access, and work on the pipeline replacement stopped on October 8, 2013. ECF No. 46 at 4. Contractor Elite Excavation & Services notified Little Butte that while standing by waiting to complete the work on the pipeline, the company would bill the water association for the costs associated with retaining the specialty equipment in the area. ECF No. 54 at 3.

On approximately October 22, 2013, Little Butte filed a lawsuit against Mr. Bradley in Chelan County Superior Court, and, on October 24, 2013, the court issued a temporary restraining order ("TRO") authorizing immediate access for Little Butte and its contractor to the pipeline and directing removal of "any obstructions such as vehicles, locks or other objects that may interfere with the replacement of that pipeline." ECF No. 42-3 at 2.

The same day that the restraining order was entered, Elite Excavation "re-mobilized" its crews to restart the pipeline. ECF No. 54 at 3. The contractor built an access road along the route of the pipeline across Mr. Bradley's property to facilitate access to a location between Mr. Bradley's property and the shoreline of Lake Chelan, where Elite Excavation was constructing a booster pump. ECF...