Leishman v. Washington Attorney General's Office et al, No. 2:2020cv00861 - Document 195 (W.D. Wash. 2023)
Court Description: ORDER granting Defendants' 148 Motion to Dismiss. The Court DISMISSES all of Leishman's claims against the Ogden Murphy Defendants with prejudice and without leave to amend. Signed by Judge Jamal N Whitehead. (SB)
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Leishman v. Washington Attorney General&#039;s Office et al Doc. 195 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 ROGER A. LEISHMAN, 8 9 10 11 12 13 14 15 CASE NO. 2:20-cv-861 Plaintiff, v. WASHINGTON ATTORNEY GENERAL’S OFFICE; SHANE ESQUIBEL; ELIZABETH CHRISTINA BEUSCH; ALLYSON JANAY FERGUSON; KARI HANSON; SUZANNE LIABRAATEN; VALERIE PETRIE; KATHRYN NADINE REYNOLDS; WESTERN WASHINGTON UNIVERSITY; BRUCE SHEPARD; OFFICE OF THE GOVERNOR; OGDEN MURPHY WALLACE, PLLC; KAREN SUTHERLAND; and PATRICK PEARCE, 16 ORDER GRANTING OGDEN MURPHY WALLACE, PLLC, KAREN SUTHERLAND, AND PATRICK PEARCE’S MOTION TO DISMISS Defendants. 17 18 19 1. INTRODUCTION Defendant Ogden Murphy Wallace, PLLC, and two of its lawyers who are 20 also named as defendants, move to dismiss Plaintiff Roger Leishman’s case. They 21 argue, among other things, that Leishman is barred from suing them now because 22 23 OR DE R - 1 Dockets.Justia.com 1 he has already sued them in state court on the same claims and lost. As explained 2 more fully below, the Court agrees and GRANTS their motion. 2. BACKGROUND 3 4 2.1 5 6 7 8 9 10 11 12 On July 14, 2015, the Attorney General’s Office hired Leishman to serve as the Chief Legal advisor to Western Washington University. Dkt. No. 133 at 5. Shortly after he began working, Leishman disclosed to the Attorney General’s Office that he was experiencing “serious Body-Focused Repetitive Behaviors (including trichotillomania), anxiety, bruxism, insomnia, and other physical and mental symptoms.” Id. Leishman’s physician later diagnosed him with Post-Traumatic Stress Disorder and serious codependency. Id. at 6. His symptoms affected his behavior at work, including his interactions with his coworkers. Id. at 6–7. 13 14 15 16 17 18 19 20 21 22 Leishman’s underlying employment dispute and Ogden Murphy’s investigation. In late January 2016, Leishman submitted a formal workplace disability accommodation request, but the Attorney General’s Office denied his request. Id. at 9, 11. About a month later, and separate from his accommodation request, Leishman filed a formal sexual orientation discrimination complaint. Id. at 12. He alleged that his supervisor had made “homophobic allegations” against him and wrongfully withheld a $3,000 raise, as “part of a pattern of implicit and explicit workplace homophobia.” Id. at 12. Several days after submitting his discrimination complaint, the Attorney General’s Office placed Leishman on home assignment effective immediately and 23 OR DE R - 2 1 without any warning or explanation. Id. at 14. He was told that someone would 2 contact him about his sexual orientation discrimination complaint. Id. at 15. 3 The Attorney General’s Office retained Seattle law firm Defendant Ogden 4 Murphy Wallace to investigate Leishman’s discrimination complaint. Id. at 20. 5 Ogden Murphy attorney Defendant Patrick Pearce, interviewed Leishman twice. Id. 6 at 20–21. Pearce represented to Leishman that Ogden Murphy’s investigation was 7 limited to Leishman’s sexual orientation complaint. Id. at 20–21. No one told 8 Leishman, but by that time, the Attorney General’s Office had expanded the scope 9 of Ogden Murphy’s investigation to include “separate secret complaints” about 10 11 Leishman’s workplace conduct. Id. at 24. Around the same time, Leishman retained private counsel “in connection 12 with all issues related to his employment dispute, with the sole exception of 13 Leishman’s pending sexual orientation discrimination complaint.” Id. at 22. Ogden 14 Murphy interviewed Leishman outside the presence of his attorney. Id. at 23, 27. 15 On April 29, 2016, Pearce forwarded his finished report to the Attorney 16 General’s Office. Id. at 27. About two weeks later, at a meeting on May 9, 2016, the 17 Attorney General’s Office terminated Leishman’s employment by providing him and 18 his attorney with a one-sentence termination letter. Id. at 31. The Attorney 19 General’s Office also gave Leishman a copy of Ogden Murphy’s investigative report 20 at the meeting. Id. at 31. When Leishman reviewed the report, he learned that his 21 workplace conduct was also at issue. See id. at 26. 22 23 OR DE R - 3 1 2.2 2 3 4 5 6 7 8 On May 10, 2017, Leishman sued Ogden Murphy and Pearce in King County Superior Court, alleging negligence, violation of the Consumer Protection Act, negligent misrepresentation, fraud, and discrimination. Dkt. Nos. 133 at 37; 149-1. Ogden Murphy and Pearce moved for judgment on the pleadings under Washington Civil Rule 12(c), arguing RCW 4.24.510 rendered them immune from liability for their communications and investigative report about Leishman to the Attorney General’s Office. Dkt. No. 149-4. Leishman opposed their motion. Dkt. No. 149-2. 9 10 11 12 13 14 15 16 17 18 19 20 21 Leishman sues Ogden Murphy and Pearce in state court and his case reaches final judgment. The trial court heard oral argument from the parties and granted the motion, dismissing Leishman’s claims on November 3, 2017. Dkt. No. 149-5. Leishman moved for reconsideration, but the trial court denied his request. Dkt. Nos. 149-6; 149-7. Leishman appealed the trial court’s dismissal to the Washington Court of Appeals. The Court of Appeals reversed the trial court, holding that RCW 4.24.510 did not immunize Ogden Murphy and Pearce because they fell outside the protections of the statute. Leishman v. Ogden Murphy Wallace PLLC, 451 P.3d 1101, 1106–07 (Wash. Ct. App. 2019). The Washington Supreme Court had the final say on the matter. The court “reverse[d] the Court of Appeals and reinstate[d] the trial court’s grant of judgment on the pleadings.” Leishman v. Ogden Murphy Wallace, PLLC, 479 P.3d 688, 695 (2021), reconsideration denied (Aug. 19, 2021), as amended (Aug. 19, 2021). 22 23 OR DE R - 4 1 Ultimately, the court remanded the case to the trial court for further proceedings on 2 a single issue. Id. at 696. On remand, the trial court concluded that none of Leishman’s claims 3 4 “survived this [trial court’s] prior decision and the decision of the Washington 5 Supreme Court in Leishman v. Ogden Murphy Wallace, PLLC, 196 Wn.2d 898, 479 6 P.3d 688 (Wash. 2021).” Dkt. No. 149-12 at 9. Rather than appealing this order, 7 Leishman moved the Washington Supreme Court to recall its mandate remanding 8 the case to the trial court. On June 8, 2022, the court denied Leishman’s request. 9 Dkt. Nos. 149-14; 149-13. 10 2.3 11 12 13 14 15 Leishman amends his complaint to name Ogden Murphy, Pearce, and Sutherland as Defendants in this action. On October 3, 2022, Leishman amended his complaint in this matter for a third time to name Ogden Murphy, Pearce, and Karen Sutherland (together, “Ogden Murphy Defendants”) as defendants. He alleges claims against them for negligence, violation of the Consumer Protection Act, negligent misrepresentation, fraud, and discrimination—the same claims he raised in his prior state court action. 16 17 18 19 20 21 22 3. DISCUSSION 3.1. Legal standards. 3.1.1. Rule 12(b)(6) standard. The Court will grant a motion to dismiss only if the complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 23 OR DE R - 5 1 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 2 556 U.S. 662, 678 (2009) (citations omitted). The plausibility standard is less than 3 probability, “but it asks for more than a sheer possibility” that a defendant did 4 something wrong. Id. (citations omitted). “Where a complaint pleads facts that are 5 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between 6 possibility and plausibility of ‘entitlement to relief.’’” Id. (quoting Twombly, 550 U.S. 7 at 557). A plaintiff must have pled “more than an unadorned, the-defendant- 8 unlawfully-harmed-me accusation.” Id. 9 When considering a motion to dismiss, the Court accepts factual allegations 10 pled in the complaint as true and construes them in the light most favorable to the 11 plaintiff. Lund v. Cowan, 5 F.4th 964, 968 (9th Cir. 2021). But courts “do not 12 ‘assume the truth of legal conclusions merely because they are cast in the form of 13 factual allegations.’” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citations 14 omitted). Thus, “conclusory allegations of law and unwarranted inferences are 15 insufficient to defeat a motion to dismiss.” Id. (internal quotation marks omitted). 16 3.1.2. Judicial Notice. 17 Typically, courts are confined to the contents of the complaint when 18 considering a Rule 12(b)(6) motion. But judicial notice under Federal Rule of 19 Evidence 201 is an exception to this rule. Khoja v. Orexigen Therapeutics, Inc., 899 20 F.3d 988 (9th Cir. 2018). Courts may take judicial notice of facts that are “not 21 subject to reasonable dispute.” Fed. R. Evid. 201(b). Courts may also take notice of 22 “proceedings in other courts, both within and without the federal judicial system, if 23 those proceedings have a direct relation to matters at issue.” U.S. ex rel. Robinson OR DE R - 6 1 Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 2 (internal quotation marks omitted). Accordingly, the Court may take notice of the 3 state court proceedings involving Leishman, Ogden Murphy, and Pearce. 4 3.2. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The doctrine of Res Judicata bars Leishman’s claims against the Ogden Murphy Defendants. The Ogden Murphy Defendants argue that Leishman’s claims asserted against them in his Third Amended Complaint are barred by the doctrine of res judicata because they were already litigated to final judgment in state court. Leishman insists that res judicata does not apply because his previous lawsuit involved different subjects, causes of action, and parties, and because dismissal of his federal case would generally “work an injustice.” A defendant may raise res judicata, or claim preclusion, as a defense in a motion to dismiss under Rule 12(b)(6). New York Life Ins. Co. v. Gunwall, No. C19226RSL, 2023 WL 3722233, at *3 (W.D. Wash. May 30, 2023) (citing Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984)). “When considering the preclusive effect of a state court decision, this Court must give the same preclusive effect to [that] judgment as another court of that State would give, meaning that we apply res judicata as adopted by that state.” Id. (internal quotation marks omitted). Thus, Washington laws of preclusion will apply. “Under Washington law, claim preclusion means ‘a plaintiff is not allowed to recast his claim under a different theory and sue again . . . . [A]ll issues which might have been raised and determined are precluded.’” Feminist Women’s Health Ctr. v. Codispoti, 63 F.3d 863, 867 (9th Cir. 1995) (quoting Shoemaker v. City of 23 OR DE R - 7 1 Bremerton, 745 P.2d 858, 860 (Wash. 1987)). “[F]or the doctrine to apply, a prior 2 judgment must have a concurrence of identity with a subsequent action in (1) 3 subject matter, (2) cause of action, and (3) persons and parties, and (4) the quality of 4 the persons for or against whom the claim is made.” Loveridge v. Fred Meyer, Inc., 5 887 P.2d 898, 900 (Wash. 1995). When these requirements are met, all matters that 6 were litigated or could have been litigated in the prior action, cannot support a later 7 action. Id. 8 Because they are all contested, the Court analyzes each element below. 9 3.2.1. 10 Identity of subject matter? Washington law does not specify how precisely the subject matter in the first 11 and second suit must align to have identity of subject matter. Eugster v. Wash. 12 State Bar Ass’n, 397 P.3d 131, 146 (Wash. Ct. App. 2017). But the Washington 13 Supreme Court has observed that ‘“[t]he critical factors seem to be the nature of the 14 claim or cause of action and the nature of the parties.”’ Hayes v. City of Seattle, 934 15 P.2d 1179, 1182 (Wash. 1997) (quoting Philip A. Trautman, Claim and Issue 16 Preclusion in Civil Litigation in Washington, 60 Wash. L. Rev. 805, 812-13 (1985)). 17 Leishman argues the subject matter of this case is distinct from his state 18 court action: he says he sued Ogden Murphy and Pearce in state court about his 19 “termination by Defendant AGO based on the flawed investigation prepared by 20 Defendant Pearce,” but he contends this action is about “government contract 21 procurement fraud, the deprivation of civil rights, and subsequent attempts at 22 concealment.” Dkt. No. 154 at 20. 23 OR DE R - 8 1 Leishman’s argument is unconvincing. Although he includes more factual 2 details about the Ogden Murphy Defendant’s supposed wrongdoing in his federal 3 complaint, the subject matter of Leishman’s claims remains the same: Ogden 4 Murphy and Pearce’s workplace investigation. There is no getting around the fact 5 that, at bottom, the investigation is the central issue in both actions. Nor that the 6 nature of Leishman’s claims, sounding in tort and statutory violations, are nearly 7 identical between his two actions. See Rains v. State, 674 P.2d 165, 168 (Wash. 8 1983) (finding identity of subject where both cases alleged deprivation of 9 constitutional rights); see also infra Section 3.2.2. And to the extent his causes of 10 action differ even slightly, they were all “ripe” at the time of his previous lawsuit 11 because the injury causing conditions had already occurred and were known to 12 Leishman then. Cf. Weaver v. City of Everett, 450 P.3d 177, 185 (Wash. 2019) 13 (declining to find identity of subject matter because the cause of action in the second 14 suit did not exist at time of the former judgment). This is important, of course, 15 because res judicata precludes claims that were brought or that could have been 16 brought in a prior action. Id. at 186. 17 3.2.2. Identity of cause of action or claims? 18 Whether causes of action are sufficiently identical ‘“‘cannot be determined 19 precisely by mechanistic application of a simple test,’” but Washington courts 20 generally consider the following criteria relevant: “(1) [W]hether rights or interests 21 established in the prior judgment would be destroyed or impaired by prosecution of 22 the second action; (2) whether substantially the same evidence is presented in the 23 two actions; (3) whether the two suits involve infringement of the same right; and OR DE R - 9 1 (4) whether the two suits arise out of the same transactional nucleus of facts.” Rains 2 v. State, 674 P.2d at 168 (quoting Constantini v. Trans World Airlines, 681 F.2d 3 1199, 1201–02 (9th Cir.1982)). The relevant factors are closely related and 4 necessarily overlap, but the last criteria is perhaps the most important. Feminist 5 Women’s Health Ctr., 63 F.3d at 867–68 (analyzing Rains). Leishman contends that 6 none of the Rains factors are met, but the Court finds otherwise. 7 The first element is easily satisfied: Ogden Murphy and Pearce obtained a 8 final ruling in Leishman’s state court action that they were immune from his 9 claims, so allowing Leishman to relitigate previously extinguished claims in federal 10 court would obviously “destroy or impair” Ogden Murphy’s and Pearce’s settled 11 rights or interests. 12 As for the second element, Leishman would have to produce and rely on 13 substantially the same evidence to sustain either case. Leishman argues that his 14 latest lawsuit is based on new evidence, but this misses the point as “some 15 difference in the evidence between cases is not dispositive.” Marshall v. Thurston 16 Cnty., 267 P.3d 491, 496 (Wash. Ct. App. 2011) (emphasis in original). The relevant 17 inquiry is whether the evidence is substantially the same, not whether it is 18 identical. Id. Moreover, Leishman’s claim about having new or additional evidence 19 is not the same as disclaiming substantial reliance on the same evidence as before. 20 And there is bound to be substantial overlap in evidence given Leishman alleges the 21 same claims of negligence, violation of the Consumer Protection Act, negligent 22 misrepresentation, and discrimination in both actions against the Ogden Murphy 23 Defendants. OR DE R - 10 1 The third and fourth factors may be analyzed together. See Mellor v. 2 Chamberlin, 673 P.2d 610, 612 (1983) (“It has been said that the claim is the same 3 if the same primary right is violated by the same wrong in both actions, or if the 4 evidence needed to support the second action would have sustained the first 5 action.”) (citation omitted). Both cases arise from Ogden Murphy and Pearce’s 6 investigation—this is the undeniable, factual predicate for the Ogden Murphy 7 Defendants’ involvement in Leishman’s employment dispute and the jumping off 8 point for his claims against them. Leishman tries to avoid this conclusion by 9 arguing that he’s proceeding against the Ogden Murphy Defendants under a new 10 case theory, but the harms he alleges are substantially the same and “intimately 11 related in time, origin, and motivation” to the harms alleged in his state court 12 action because “they arise out of the same interactions” between Leishman and the 13 Ogden Murphy Defendants. Hadley v. Cowan, 804 P.2d 1271, 1276 (Wash. Ct. App. 14 1991). And as noted earlier, the claims he alleges are nearly identical in both suits. 15 In other words, although the legal window dressing might be different, the cases 16 have the same factual nucleus and a common grievance. Feminist Women’s Health 17 Ctr., 63 F.3d at 868 (pursuing different legal remedies under a new legal theory in 18 subsequent suit did not destroy identity of cause of action or claim for purposes of 19 res judicata). 20 3.2.3. Identity and quality of parties? 21 The general rule is that a judgment is res judicata, and therefore binding, on 22 all parties to the original litigation, plus all persons in privity with such parties. 23 Eugster, 397 P.3d at 146. The identity-of-parties requirement does not mean OR DE R - 11 1 “identical” parties, but it focuses instead on whether they are “qualitatively” the 2 same. Rains, 674 P.2d. at 169. When making this inquiry, courts should not place 3 form over substance. Id. 4 Leishman, Pearce, and Ogden Murphy were all parties to the state court 5 action. Sutherland—a “member” of Ogden Murphy—is the only newcomer. 6 Leishman argues that her presence dooms the application of res judicata, but this 7 goes against the weight of Washington authority holding that (1) nominally 8 different defendants in separate suits are the same so long as they are in privity, 9 and (2) an employer/employee relationship is one category that will suffice. See 10 Eugster, 397 P.3d at 146 (analyzing res judicata and identity of parties; finding 11 privity between employer sued in first lawsuit and employees sued in second 12 lawsuit); Kuhlman v. Thomas, 897 P.2d 365, 368–69 (Wash. Ct. App. 1995) (same). 13 As a member of Ogden Murphy, Sutherland is in privity with the firm. Suing 14 Sutherland in her personal capacity for actions she allegedly took on behalf of the 15 firm is a suit against the firm. 16 Leishman’s argument that the Washington Rules of Professional Conduct 17 somehow change the nature of her relationship with the firm are conclusory and not 18 supported by Washington authority. 19 3.2.4. 20 Leishman argues that applying res judicata to bar his second lawsuit against 21 the Ogden Murphy Defendants would be an inequitable result. But setting aside the 22 “many test” to determine when a prior judgment will have preclusive effect, “[i]t has 23 been said that the claim is the same if the same primary right is violated by the OR DE R - 12 Equitable concerns. 1 same wrong in both actions, or if the evidence needed to support the second action 2 would have sustained the first action[.]” Mellor, 673 P.2d at 612 (citation omitted). 3 Here, Leishman’s Third Amended Complaint makes plain that the Ogden Murphy 4 investigation animates his claims against the firm and its lawyers. He already 5 litigated his claims to final judgment once—it would be inequitable to allow him to 6 litigate his case again. Holding otherwise would endorse claim-splitting, a practice 7 the res judicata doctrine was designed to prevent. 8 3.2.5. Res judicata bars Leishman’s federal civil rights claims, too. 9 Leishman argues that res judicata cannot bar his federal civil rights claims 10 against the Ogden Murphy Defendants because he did not litigate these claims in 11 his previous state court action. Leishman is wrong. 12 As noted earlier, if “the prior proceeding culminated in a final judgment, a 13 matter may not be relitigated, or even litigated for the first time, if it could have 14 been raised, and in the exercise of reasonable diligence should have been raised, in 15 the prior proceeding.” Kelly-Hansen v. Kelly-Hansen, 941 P.2d 1108, 1112 (Wash. 16 Ct. App. 1997). 17 Whether an afterthought or an oversight, Leishman did not sue the Ogden 18 Murphy Defendants for federal civil rights violations; these claims should have been 19 raised as an exercise of reasonable diligence when Leishman filed his state court 20 action in May 2017. Id. at 1113–14. Consider the following: Leishman’s Section 21 1983 claim is based on Ogden Murphy and Pearce’s workplace investigation in April 22 2016, which he alleges deprived him of equal protection under the law based on his 23 sexual orientation and disability status, and also deprived him of due process when OR DE R - 13 1 he wasn’t allowed to respond to the finished investigative report; similarly, his 2 Section 1985 claim alleges Ogden Murphy and Pearce joined a conspiracy in March 3 2016 to unlawfully terminate his employment. So Leishman had the facts necessary 4 to include his Section 1983 and 1985 claims in his earlier action, but he did not, and 5 he offers no valid reasons now for failing to bring these claims earlier. 6 Thus, Leishman is precluded from litigating his federal civil rights claims 7 against the Ogden Murphy Defendants. See Mir v. Little Co. of Mary Hosp., 844 8 F.2d 646, 651–52 (9th Cir. 1988) (holding res judicata barred plaintiff from 9 relitigating issues that were raised or could have been raised in his state court 10 action, including newly asserted Section 1983, 1985, and 1986 claims). The Ogden Murphy Defendants raise other grounds to dismiss Leishman’s 11 12 complaint, but the Court declines to reach these other arguments since all of 13 Leishman’s claims are dismissed under the doctrine of res judicata or claim 14 preclusion. 15 3.3. Leave to amend is futile. 16 Ordinarily, when a court dismisses a pro se plaintiff’s complaint for failure to 17 state a claim, it must grant leave to amend even when no request to amend is made. 18 Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017). But leave to amend may be 19 denied where amendment would be futile. Flowers v. First Hawaiian Bank, 295 20 F.3d 966, 976 (9th Cir. 2002). And district courts have “particularly broad” 21 discretion in denying amendment when leave to amend has previously been 22 granted. Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1117 (9th Cir. 23 OR DE R - 14 1 2014) (“[T]he district court’s discretion in denying amendment is ‘particularly broad’ 2 when it has previously given leave to amend.”). 3 Leishman is a licensed attorney and he has already amended his complaint 4 several times. The court concludes that further amendment as to the Ogden 5 Murphy Defendants would be futile because Leishman’s claims against them are 6 barred by the doctrine of res judicata. 7 4. CONCLUSION 8 In sum, the Court GRANTS the Ogden Murphy Defendants’ motion to dismiss 9 10 and DISMISSES all of Leishman’s claims against them with prejudice and without leave to amend. 11 Dated this 31st day of October, 2023. 12 13 A 14 Jamal N. Whitehead United States District Judge 15 16 17 18 19 20 21 22 23 OR DE R - 15
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