Ziegler v. Ziegler

• Decision Date: 24 September 1998
• Docket Number: No. CS-97-0467-WFN.,CS-97-0467-WFN.
• Citation: 28 F.Supp.2d 601
• Parties: Michele J. ZIEGLER, and her adult children, Luke Ziegler and Journee Ziegler, Plaintiffs, v. Reid T. ZIEGLER, Defendant. United States of America, Intervener.
• Court: U.S. District Court — District of Washington

28 F.Supp.2d 601

Michele J. ZIEGLER, and her adult children, Luke Ziegler and Journee Ziegler, Plaintiffs, v. Reid T. ZIEGLER, Defendant.

United States of America, Intervener.

No. CS-97-0467-WFN.

United States District Court, E.D. Washington.

September 24, 1998.

Order Denying Reconsideration, November 5, 1998.

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Richard C. Eymann, John David Allison, Feltman Gebhardt Eymann & Jones, Spokane, WA, Katrin E. Frank, Seattle, WA, Andrea Brenneke, Northwest Women's Law Center, McDonald Hoague & Bayless, Seattle, WA, for Michelle J. Ziegler, Luke Ziegler, Journee Ziegler.

Mary Elizabeth Schultz, Mary E. Schultz & Associates, PS, Spokane, WA, for Reid T. Ziegler.

Karen Linda Sayre, Sayre & Sayre PS, Spokane, WA, Andrea B. Williams, Martha F. Davis, Legal Defense and Education Fund, New York City, Elizabeth A. Billowitz, Foley Hoag & Eliot L.L.P., Boston, MA, for Now Legal Defense and Education Fund.

James P. Connelly, James Richard Shively, U.S. Attorney's Office, Spokane, WA, John R. Tyler, Marcia K. Sowles, Frank W. Hunger, U.S. Attorney General, Department of Justice, Civil Division Fed. Programs Branch, Washington, DC, for USA.

ORDER

NIELSEN, Chief Judge.

A hearing was held July 21, 1998 on Defendant's Motion to Dismiss (Ct.Rec.6). Defendant was represented by Mary Schultz; Plaintiffs were represented by Richard Eymann, Andrea Brenneke and John Allison; and the Intervener, United States, was represented by Marcia Sowles.

The Court took the Motion under advisement. In addition to oral argument, the Court considered the briefing and attached exhibits.¹ For the reasons stated below, the Motion to Dismiss is denied in part and the Court reserves ruling in part.

I. BACKGROUND

Michelle Ziegler [hereinafter Plaintiff] brings an Amended Complaint against Reid Ziegler under the civil enforcement provision of the Gender-Motivated Violence Act [GMVA], 42 U.S.C. § 13981, as well as state law claims of: malicious harassment, tort of domestic violence, outrage, assault and battery, and defamation. Luke Ziegler and Journee Ziegler join their mother as Plaintiffs on the state law claim of outrage. The Amended Complaint alleges some ten years of spousal and gender-motivated violence against Plaintiff by Defendant.

Defendant asserts that the Amended Complaint fails to state a claim upon which relief can be granted. Defendant also challenges the constitutionality of the GMVA on its face and as applied. Finally, Defendant asserts that the state law claims are barred by the statute of limitations; that the tort of domestic violence does not exist as a cause of action in Washington State; and/or that the Court should decline to exercise supplemental jurisdiction over the state claims.

The Government has intervened pursuant to 28 U.S.C. § 2403(a) and argues in support of the constitutionality of the GMVA. The National Organization of Women Legal Defense and Education Fund [NOW] was granted leave to file an amicus brief and also argues in support of the constitutionality of the GMVA.

II. FAILURE TO STATE A CLAIM

Defendant's Motion to Dismiss for failure to state a claim pursuant to Fed. R.Civ.P. 12(b)(6) must be considered prior to reaching any constitutional questions. Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (before reaching a constitutional question, federal courts are required to consider non-constitutional grounds for decision). Fed.R.Civ.P. 12(b)(6) provides for dismissal of causes of action for "failure to state a claim upon which relief can be granted." The issue is not whether Plaintiff is likely to succeed on the merits, but only if the Amended Complaint is legally sufficient to entitle Plaintiff to proceed beyond the pleadings and attempt to establish her claim. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978). Plaintiff's allegations must be accepted as true and the Amended Complaint is construed in the light most favorable to her. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989). This Court should grant the Motion to Dismiss "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

42 U.S.C. § 13981 sets forth a cause of action under the GMVA as follows:

A person ... who commits a crime of violence motivated by gender and thus deprives another of the right [to be free from crimes of violence motivated by gender] shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and other relief as a court may deem appropriate.

42 U.S.C.S. 13981(c) (1997). To state a claim under the GMVA, Plaintiff must allege she was a victim of (1) a crime of violence that (2) was motivated by gender. Crisonino v. New York City Housing Authority, 985 F.Supp. 385, 391 (S.D.N.Y.1997).

Element One — Crime of Violence: A crime of violence means:

an act or series of acts that would constitute a felony against the person ... if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in § 16 of title 18, United States Code, whether or not those act have actually resulted in criminal charges, prosecution, or conviction....

42 U.S.C.S. § 13981(d)(2)(A) (1997). In addition, the statute provides that "[n]othing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action...." 42 U.S.C.S. § 13981(e)(2) (1997).

18 U.S.C. § 16 defines crime of violence as

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (West 1998).

Defendant does not dispute that the violent acts alleged by Plaintiff in the Amended Complaint satisfy the first element of a cause of action under the GMVA. Alleged crimes of violence occurring on at least five occasions after the effective date of the GMVA, September 13, 1994, would constitute state felony crimes that include as an element the use, attempted use or threatened use of physical force.²

Element Two — Crime Motivated by Gender: The GMVA requires that the crime of violence be committed

because of gender or on the basis of gender, and due in part, to an animus based on the victim's gender.

42 U.S.C.S. § 13981(d)(1) (1997). The statute specifically precludes a cause of action

for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender (within the meaning of subsection (d)).

42 U.S.C.S. § 13981(e)(1) (1997).

Gender motivation is to be determined from the totality of the circumstances as it is for race or sex discrimination and it can be proven by circumstantial evidence. S.REP. No. 102-197, at 50 (1991). The GMVA definition of gender-motivated crime is based on Title VII which prohibits gender-based employment discrimination. Congress intends that Title VII cases provide substantial guidance in assessing whether the alleged violence is based on gender. S.REP. No. 103-138, at 52-53 (1993). Generally accepted guidelines for identifying hate crimes may also be useful in assessing whether the circumstances show gender-motivation. S.REP. No. 102-197, at 50, n. 72 (1991).

Here evidence of gender motivation includes:

(a) At least one incident of rape, Amended Compl. ¶ 26, and numerous incidents of violence associated with sexual issues. Amended Compl. ¶¶ 24, 25 and 29. Nichols v. Frank, 42 F.3d 503, 510 (9th Cir.1994) ("Nothing is more destructive of human dignity than being forced to perform sexual acts against one's will. Rape is still the ultimate violation"); (b) Gender-specific epithets by Defendant against the Plaintiff. Amended Compl. ¶ 30. Harris v. Forklift Systems, Inc., 510 U.S. 17, 19, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (president insulted plaintiff because of her gender, stating she was a "dumb ass woman" and "you're a woman, what do you know.");

(c) Acts that perpetuated stereotype of submissive role for Plaintiff by, e.g., Defendant controlling all of the family's financial information and documents, Amended Compl ¶ 37; holding all her personal documents, including her passport, Amended Comp. ¶ 38; not placing her name on title documents, Amended Compl. ¶ 40; not disclosing insurance information to her, Amended Compl. ¶ 41; and being angry if she questioned him about the family affairs, Amended Compl. ¶ 42. Price Waterhouse v. Hopkins, 490 U.S. 228, 235-37, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (sexual stereo-typing occurred when promotion was denied to a woman on the basis of a partner's comment that the woman was too aggressive for a woman, was macho, and needed to be more feminine in appearance);

(d) Severe and excessive attacks on the Plaintiff, Amended Compl. ¶ 27, especially during her pregnancy, Amended Compl. ¶¶ 17-19. S.REP. No. 102-197, at 50 n. 72 (1991) (consider severity of attack in assessing whether crime is bias related); and

(e) The alleged violence was often without provocation and specifically at times when the Plaintiff asserted her independence. Amended Comp. ¶ 26. S.REP. No. 102-197, at 50 n. 72 (1991) (consider lack of provocation in assessing whether crime is bias related).

The Defendant is undoubtedly correct that there may be many causes of violence within a marital relationship. Here, the alleged facts however, present more than conclusory allegations and could reasonably result in an inference of gender-motivated violence. Senator Biden is quoted by the Defendant as saying that ...