Paul v. State of Washington et al, No. 2:2019cv00129 - Document 10 (E.D. Wash. 2019)
Court Description: ORDER DENYING PLAINTIFFS MOTION TO DISMISS COUNTERCLAIM; MOTION TO STRIKE AFFIRMATIVE DEFENSES. Plaintiff Melissa Pauls Motion to Dismiss Defendants Counterclaim ECF No. 3 is DENIED.Plaintiff Melissa Pauls Motion to Strike Defendants Affirmative Defenses ECF No. 4 is DENIED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Paul v. State of Washington et al Doc. 10 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MELISSA PAUL, NO. 2:19-CV-0129-TOR Plaintiff, 8 9 10 v. STATE OF WASHINGTON, et al., 11 ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM; MOTION TO STRIKE AFFIRMATIVE DEFENSES Defendants. 12 13 BEFORE THE COURT is Plaintiff Melissa Paul’s Motion to Dismiss 14 Defendants’ Counterclaim (ECF No. 3) and Motion to Strike Defendants’ 15 Affirmative Defenses (ECF No. 4). The Motions were submitted for consideration 16 without a request for oral argument. The Court has reviewed the record and files 17 herein, and is fully informed. For the reasons discussed below, the Motions (ECF 18 Nos. 3; 4) are denied. 19 20 ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 1 Dockets.Justia.com 1 BACKGROUND 1 2 The instant case arises out of a tragic accident. On January 1, 2017, at 3 approximately 4:05 a.m., Plaintiff Melissa Paul struck and killed a bicyclist on the 4 side of the road. ECF No. 1-3 at 4-5, ¶ 16-17. Washington State Patrol Trooper 5 Leibrecht arrived on the scene at approximately 4:40 a.m. and contacted Plaintiff. 6 ECF No. 1-3 at 5, ¶ 20. Apparently, Plaintiff fled the scene of the accident, but her 7 car become inoperable thereafter and the police found her at that location. See 8 ECF No. 6 at 7. After locating and speaking with Plaintiff, “Trooper Leibrecht 9 thought that he might have smelled alcohol in the vehicle but [was] not sure where 10 it was coming from”; Plaintiff’s passenger advised the trooper that he had been 11 drinking and that Plaintiff was his designated driver. ECF No. 1-3 at 5, ¶ 20. 12 Between approximately 4:54 a.m. and 5:01 a.m., Trooper Leibrecht 13 performed the standardized field sobriety tests (FST) on Plaintiff; according to 14 Plaintiff, Trooper Liebrecht reported “that [n]o obvious signs of impairment were 15 observed[.]”. ECF No. 1-3 at 5, ¶¶ 21-22. According to Plaintiff, “[a]t 16 approximately 5:03 a.m., . . . [t]he troopers decided that based on the lack of 17 18 19 1 20 fact. The background is provided for context and does not constitute findings of ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 2 1 impairment, that a Portable Breath Test (PBT) would not be administered.” ECF 2 No. 1-3 at 5-6, ¶ 23. 3 “At approximately 6 a.m., Sgt Davis arrived at Plaintiff’s location and 4 instructed Trooper Spencer to perform FST’s [sic] on Plaintiff again.” ECF No. 1- 5 3 at 6, ¶ 25. According to Plaintiff, “[a]fter Plaintiff successfully and satisfactorily 6 completed the FST’s [sic] for the second time, Trooper Spencer approached 7 [Plaintiff] with a Portable Breath Test (PBT) and instructed her to blow. The PBT 8 was .067, which is below the legal limit of alcohol influence in Washington.” ECF 9 No. 1-3 at 7, ¶ 27. 10 Apparently, Plaintiff was not given any explanation that the PBT was 11 voluntary or what the test was for, as required under Washington Administrative 12 Code 448-15-030. ECF No. 1-3 at 7, ¶ 28. “Following the PBT, Sgt. Davis 13 instructed Trooper Spencer to apply for a blood warrant to take Plaintiff’s blood. 14 Trooper Spencer submitted an affidavit for a blood warrant which was signed by 15 Spokane County Superior Court Judge Annette Plese based on Trooper Spencer’s 16 sworn affidavit.” ECF No. 1-3 at 7, ¶ 31. “Plaintiff was arrested and charged with 17 vehicular homicide and booked into the Spokane County Jail[.]” ECF No. 1-3 at 18 10, ¶ 37. 19 20 On or about December 19, 2017, the State of Washington stipulated to certain findings of fact, including: ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 3 1 2 3 4 5 (1) The PBT is inadmissible for purposes of obtaining a search warrant for blood because the required protocols under WAC 448-15-030 were not followed when administering the test to Ms. Paul. (2) The facts provided in the probable cause affidavit are not supported by the conversations between the officers on the scene, as contained and readily observable in the dash camera videos. (3) Absent the PBT result, the facts supporting probable cause do not rise to the level of impairment. (4) Because impairment cannot be established by the probable cause affidavit, the warrant for blood is therefore invalid. 6 7 ECF No. 1-3 at 10, ¶ 38. The criminal charges were then dismissed with prejudice. 8 ECF No. 1-3 at 11, ¶ 39. 9 Plaintiff brought suit against Defendants in Spokane County Superior Court 10 on February 28, 2019 asserting claims for (1) unlawful seizure / false arrest under 11 the Fourth Amendment and state law; (2) false imprisonment under the Fourth 12 Amendment and state law; (3) Malicious prosecution under the Fourth Amendment 13 and state law; (4) excessive force under the Fourth Amendment; (5) supervisor 14 liability against Sgt. Davis; (6) civil conspiracy against Sgt. Davis and Troopers 15 Leibrecht and Spencer; (7) infliction of emotional distress; (8) assault and battery; 16 (9) and negligence. ECF No. 1-3 at 11-19, ¶¶ 41-96. Defendants subsequently 17 removed the case to this Court. ECF No. 1. 18 In response to Plaintiff’s suit, Defendants filed a “counter-claim based on 19 RCW 4.24.350” alleging that “Plaintiff’s current civil action was instituted by 20 Plaintiff with knowledge that the same was false, unfounded, malicious and ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 4 1 without probable cause in the filing of such action.” ECF No. 2 at 18. Defendants 2 also asserted several affirmative defenses. ECF No. 2 at 17-18. 3 Plaintiff now requests the Court dismiss Defendants’ counterclaim pursuant 4 to Federal Rule of Civil Procedure 12(b)(6), asserting the counterclaim is not a 5 cognizable legal theory and that Defendants have otherwise failed to allege facts 6 sufficient to support the counterclaim. ECF No. 3 at 2. Plaintiff also requests the 7 Court strike certain affirmative defenses and “Defendants’ improper request for 8 relief”. ECF No. 4 at 2. These Motions are now before the Court. 9 10 DISCUSSION A. Motion to Dismiss Counterclaim 11 Plaintiff asserts that Defendant’s counterclaim lacks a cognizable legal 12 theory and fails to allege facts sufficient to support the counterclaim. ECF No. 3 at 13 2. However, as Defendants correctly note, malicious prosecution is a cognizable 14 legal theory in Washington. See RCW 4.24.350 (“In any action for damages, 15 whether based on tort or contract or otherwise, a claim or counterclaim for 16 damages may be litigated in the principal action for malicious prosecution on the 17 ground that the action was instituted with knowledge that the same was false, and 18 unfounded, malicious and without probable cause in the filing of such action, or 19 that the same was filed as a part of a conspiracy to misuse judicial process by filing 20 an action known to be false and unfounded.”). Plaintiff otherwise asserts that ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 5 1 “Defendants lack a cognizable legal theory . . . because Plaintiff has conclusive 2 probable cause to bring her lawsuit alleging no probable cause for arrest in the 3 criminal proceeding.” ECF No. 3 at 6. However, this simply goes to the merits of 4 the counterclaim, rather than demonstrating the theory is not legally cognizable. 5 Further, in context, the Defendants allegations are sufficient to put Plaintiff 6 on notice of the substance of the counterclaim. The crux of Plaintiff’s Complaint 7 is that Defendants lacked probable cause to arrest Plaintiff because (1) she did well 8 on the FSTs and (2) the PBT (which indicated she had consumed alcohol) was 9 improperly administered. Defendants, in turn, allege that Plaintiff instituted the 10 action “with knowledge that the same was false, unfounded, malicious and without 11 probable cause in the filing of such action.” ECF No. 2 at 18. In Defendants’ 12 Answer, Defendants specifically note that the PBT Test “result was .067, despite 13 Plaintiff’s prior statement that she had not been drinking” and that “[a]t this time, 14 approximately 2 hours had elapsed since the collision.” ECF No. 2 at 7, ¶ 27. 15 With this, along with the dispute regarding Plaintiff’s actual performance on the 16 FSTs, ECF No. 2 at 6, ¶ 26, Plaintiff is on notice of Defendants intent and the 17 allegations in context give rise to a reasonable inference that Plaintiff’s claims are 18 unfounded and that Plaintiff is aware of such. Plaintiff’s argument that there was 19 no probable cause for her arrest gets to the merits of the action, and resolution of 20 merits questions are not proper at this stage of litigation. ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 6 1 B. Motion to Strike Affirmative Defense 2 Plaintiff “moves the Court to strike Defendants’ affirmative defense number 3 2 (INTOXICATION), affirmative defense number 3 (COMPARATIVE FAULT), 4 and affirmative defense number 8 (COMMISSION OF A FELONY)” and 5 “Defendants’ improper request for relief under F.R.C.P. 11 in their ‘prayer for 6 relief’.” ECF No. 4 at 2 (citing ECF No. 2 at 18). Notably, Plaintiff fails to argue 7 the latter point regarding the “improper request for relief”; thus, the Court will not 8 address that issue. 9 “The court may strike from a pleading an insufficient defense or any 10 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12. The 11 purpose of a motion to strike is to “avoid the expenditure of time and money that 12 must arise from litigating spurious issues by dispensing with those issues prior to 13 trial.” Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 14 While fair notice is required for pleading affirmative defenses, this “only requires 15 describing the defense in ‘general terms.’” Kohler v. Flava Enters., Inc., 779 F.3d 16 1016, 1019 (9th Cir. 2015) (citing 5 Pleading Affirmative Defenses, 5 Fed. Prac. 17 & Proc. Civ. § 1274 (3d ed.)). 18 Plaintiff asserts that affirmative defense 2, 3, and 8 must be stricken because 19 they do not apply to all of the claims. ECF No. 4 at 4, 6, 8. This is not correct. 20 The affirmative defenses need only apply to some of the claims. See Fed. R. Civ. ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 7 1 P. 8 (In responding to a pleading, a party must affirmatively state any avoidance or 2 affirmative defense . . . .” (emphasis own)). Moreover, Plaintiff is on sufficient 3 notice as to what claims they do and do not apply to. See ECF No. 7 at 2. 4 As to affirmative defense 8, Plaintiff asserts that “there is no factual 5 contention in Defendants’ Answer that Plaintiff was engaged in felonious actions 6 when she was wrongfully arrested.” ECF No. 4 at 8 (emphasis own). Plaintiff 7 assumes the language in the statute at issue – “that the person injured . . . was 8 engaged in the commission of a felony at the time of the occurrence causing the 9 injury . . . .” – requires the felony be committed contemporaneously with the 10 complained of arrest. However, it is not clear whether this is the case or whether 11 the language “time of the occurrence” could be read more broadly to include 12 felonious acts occurring before, but leading to, the occurrence. The Court declines 13 to address the merits of this argument at this time, especially given the dearth of 14 briefing on the issue. See McElmurry v. Ingebritson, 2017 WL 9486190, at *1 15 (E.D. Wash. Aug. 14, 2017) (“motions to strike are generally denied unless the 16 moving party shows there are no questions of fact, that any questions of law are 17 clear and not in dispute, and that under no set of circumstances could the defense 18 succeed.” (internal citations and quotations omitted)). 19 // 20 // ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 8 1 2 3 4 5 6 7 8 ACCORDINGLY, IT IS HEREBY ORDERED: 1. Plaintiff Melissa Paul’s Motion to Dismiss Defendants’ Counterclaim (ECF No. 3) is DENIED. 2. Plaintiff Melissa Paul’s Motion to Strike Defendants’ Affirmative Defenses (ECF No. 4) is DENIED. The District Court Executive is directed to enter this Order and furnish copies to counsel. DATED July 15, 2019. 9 10 THOMAS O. RICE Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM: MOTION TO STRIKE AFFIRMATIVE DEFENSES ~ 9
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