White v. Univ. of Wash.

• Decision Date: 22 May 2023
• Docket Number: 2:22-CV-01798-TL
• Parties: MELISSA WHITE, Plaintiffs, v. UNIVERSITY OF WASHINGTON et al, Defendants.
• Court: U.S. District Court — Western District of Washington

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MELISSA WHITE, Plaintiffs, v. UNIVERSITY OF WASHINGTON et al, Defendants.

No. 2:22-CV-01798-TL

United States District Court, W.D. Washington, Seattle

May 22, 2023

ORDER

Tana Lin United States District Judge

This is an employment discrimination case brought by Plaintiff Melissa White against her former employer, the University of Washington (the “University”), and related entities and individuals. This matter comes before the Court on various motions filed by the Parties. See Dkt Nos. 42, 44, 52. Having reviewed the relevant record, the Court rules on the pending motions as follows and LIFTS the stay in this case.

I. Background

A. Plaintiff's Allegations

Plaintiff alleges that she was formerly employed by the University at the Harborview Medical Center starting in December 2001 and throughout the COVID-19 pandemic. Dkt. No. 12 at 6 (complaint). Plaintiff alleges that, in August 2021, the University imposed a new “license/medical document” requirement on employees to ensure their continued employment. Id. at 9. Plaintiff applied for a religious exemption from the requirement, which was denied. Id. at 10. Plaintiff then applied for a Family and Medical Leave Act (“FMLA”) leave and was denied because her employment had been terminated on October 18, 2021. Id. at 13. Plaintiff primarily challenges Defendants for their denial of her religious exemption and the subsequent termination of her employment. Plaintiff brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1983 and 1985 for violations of her constitutional rights, common law conspiracy, breach of contract, violation of RCW 9A.80.010 (official misconduct), and negligent infliction of emotional stress. Id. at 24-52. Plaintiff represents that she received a notice of right to sue from the Equal Employment Opportunity Commission on September 9, 2022. Id. at 20.

B. Defendants' Response to the Complaint

Plaintiff brought suit in King County Superior Court, and Defendants removed this case to this Court on December 19, 2022. Dkt. No. 1. Defendants also filed an answer, asserting the following affirmative defenses, in full:

(1) “Plaintiff has failed to state . . . a claim, in whole or in part, upon which relief may be granted.”

(2) “Plaintiff's damages, if any, were caused by Plaintiff's own acts or omission and/or by the acts or omissions of third parties.”

(3) “The Complaint fails, in whole or in part, because some or all of the relief sought may be barred by Plaintiff's failure to mitigate damages.”

(4) “Defendant has not yet had a full opportunity to conduct discovery and, accordingly, reserves the right to assert additional affirmative defenses that may be disclosed in the course of discovery.”

Dkt. No. 19 at 24.

C. The Parties' Motions Practice & Subsequent Stay

In the three months following removal, the Parties-mostly Plaintiff-filed a flurry of motions, as summarized below:

• Plaintiff's motion to remand the case to state court. Dkt. No. 11. The Court denied the motion. Dkt. No. 65.

• Plaintiff's motions for the entry of default against Defendants UW Medicine Choice Care LLC and Timothy Dellit. Dkt. Nos. 12, 13. Plaintiff withdrew the motions two days later. Dkt. No. 17.

• Plaintiff's motion to “consider state Superior Court pending motions,” asking the Court to adopt and consider Plaintiff's motions in the King County Superior Court proceedings for the entry of default against UW Medicine Choice Care LLC and Timothy Dellit. Dkt. No. 18. Defendants opposed. Dkt. No. 27. Plaintiff withdrew the motion. Dkt. Nos. 29, 31.

• Plaintiff's motion for a more definite statement. Dkt. No. 34. Defendants opposed. Dkt. No. 38. Plaintiff withdrew the motion later that day. Dkt. No. 40.

• Plaintiff's motion to strike Defendants' affirmative defenses (the “Motion to Strike”). Dkt. No. 42 (motion); Dkt. No. 47 (reply); see also Dkt. No. 41 (Plaintiff's “reply to affirmative defenses”). Defendants oppose. Dkt. No. 46.

• Defendants' motion for sanctions against Plaintiff (the “Motion for Sanctions”). Dkt. No. 44. Plaintiff opposes. Dkt. No. 48.

• Plaintiff's motion seeking acknowledgment that Defendant Lisa Brandenburg has been served or, in the alternative, for alternative service on Ms. Brandenburg by publication (the “Motion for Service”). Dkt. No. 52. Defendants oppose as to the first part but neither join nor oppose in Plaintiff's alternative request. Dkt. No. 58.

Plaintiff also filed two declarations, each titled “Ethical Conduct Complaint,” against Defendants' counsel Jacqueline Middleton and Timothy O'Connell. Dkt. Nos. 21, 22. These appear to be copies of ethics complaints filed with the Washington State Bar Association.

Parties filed a joint status report on February 24, 2023, in which Plaintiff appears to concede that Defendant Laura Barry has not been served with process in a timely manner and may be dismissed from the action. See Dkt. No. 57 at 11. Other details regarding Plaintiff's service attempts are summarized infra, Section III.B.

On March 1, the Court instituted a stay in the action pending the resolution of the various motions. Dkt. No. 59. The Court directed that no new motions were to be filed, absent urgent or extenuating circumstances, and that Defendants' motion to dismiss the Complaint would be due 45 days after the Court's resolution of the pending motions. Id. at 4. Plaintiff subsequently filed a “request for clarification,” objecting to the Court's reliance on the Complaint's exhibits in describing Plaintiff's allegations. Dkt. No. 61 at 1.

II. Legal Standard

A. Motion to Strike

A court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). In deciding a Rule 12(f) motion to strike, a court should not resolve disputed and substantial factual or legal issues. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-75 (9th Cir. 2010) (“We . . . hold that Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law.”). “The function of a [Rule] 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial ....” Id. at 973 (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994)). Rule 12(f) motions to strike are generally disfavored because the motions may be used as delay tactics and because of the strong policy favoring resolution on the merits. E.g., Chao Chen v. Geo Grp., Inc., 297 F.Supp.3d 1130, 1132 (W.D. Wash. 2018) (citations and internal quotation marks omitted).

B. Service of Process

Under Federal Rule of Civil Procedure (“FRCP”) 4(e), an individual may be served with process within a judicial district of the United States by:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e)(2). Alternatively, service may be made by following Washington law. See id. 4(e)(1). Washington law permits service by personal delivery or “by leaving a copy of the summons at the house of [the defendant's] usual abode with some person of suitable age and discretion then resident therein.” RCW 4.28.080(16).

A complainant has 90 days after the complaint is filed to serve each defendant with process. Fed.R.Civ.P. 4(m). If service is not completed within the 90 days, “the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Id. “[I]f the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.

C. Sanctions

A court may impose sanctions on a party or its counsel by three primary means: (1) FRCP 11, which applies to signed, written filings; (2) 28 U.S.C. § 1927, which penalizes unreasonable and vexatious multiplicity of proceedings; and (3) the inherent power of the court. Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001).^[1] Under 28 U.S.C. § 1927, “[a]ny attorney or other person admitted to conduct cases . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” The imposition of sanctions under § 1927 requires a finding of recklessness or bad faith. Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001). A reckless but nonfrivolous filing may not be sanctioned unless it was intended to harass. See In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 436 (9th Cir. 1996); see also Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426, 442 (9th Cir. 2017) (“Without more, reckless, but nonfrivolous, filings may not be sanctioned.”), abrogated on other grounds by Romag Fasteners, Inc. v. Fossil, Inc., 140 S.Ct. 1492, 1497 (2020).

A court may also impose sanctions, including attorney fees, under its inherent authority for “willful disobedience of a court order . . . or when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons ....” Fink, 239 F.3d at 991 (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)); see also In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d at 436 (holding that a finding of bad faith is required to impose sanctions under a court's inherent powers).

III. Discussion

There are three pending motions before this Court. These motions as...