Bacon et al v. Woodward et al, No. 2:2021cv00296 - Document 78 (E.D. Wash. 2022)

Court Description: ORDER granting Defendants' 70 71 Motions for Judgment on the Pleadings and denying 74 Motion to Strike. Signed by Judge Thomas O. Rice. (BF, Paralegal)

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Bacon et al v. Woodward et al Doc. 78 Case 2:21-cv-00296-TOR ECF No. 78 filed 06/30/22 PageID.3816 Page 1 of 13 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 MICHAEL BACON, et al., NO. 2:21-CV-0296-TOR Plaintiffs, 8 9 10 v. NADINE WOODWARD, et al., 11 12 13 14 ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE Defendants, JAY INSLEE, et al., Intervenor-Defendants. BEFORE THE COURT are Defendants’ Motion for Judgment on the 15 Pleadings (ECF No. 70) and Expedited Motion to Strike Declaration of Howarth 16 (ECF Nos. 74, 75). These matters were submitted for consideration without oral 17 argument. The Court has reviewed the record and files herein, the completed 18 briefing, and is fully informed. For the reasons discussed below, Defendants’ 19 Motion for Judgment on the Pleadings (ECF No. 70) is GRANTED and 20 Defendants’ Expedited Motion to Strike is DENIED. ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 1 Dockets.Justia.com Case 2:21-cv-00296-TOR filed 06/30/22 PageID.3817 Page 2 of 13 BACKGROUND 1 2 ECF No. 78 This matter concerns the vaccination requirement imposed by Defendant 3 City of Spokane (the “City”), pursuant to Proclamation 21-14 et seq. (the 4 “Proclamation”), issued by Intervenor-Defendant Governor Inslee. ECF No. 54-2 5 at 2, at 16. Plaintiffs allege the Proclamation violates a variety of state and federal 6 laws. ECF No. 1. The claims presented in this case are similar to those presented 7 in Wise, et al., v. Inslee, et al., No. 2:21-CV-0288-TOR, 2021 WL 4951571 (E.D. 8 Wash. Oct. 25, 2021), which contains a more detailed factual background of the 9 Proclamation and its applicability. The factual background of this case is 10 discussed in the Court’s Order Denying Motion for Temporary Restraining Order. 11 ECF No. 63. 12 Defendants Woodward, Schaeffer, and the City of Spokane (collectively, 13 “City Defendants”) move for judgment on the pleadings, arguing Plaintiffs have 14 failed to state claims upon which relief may be granted. ECF No. 70. Plaintiffs 15 oppose the motion and request an opportunity to amend their pleadings. ECF No. 16 72. Additionally, City Defendants move to strike the Declaration of Howarth 17 (ECF No. 73), filed concurrently with Plaintiffs’ Response, and seek expedited 18 review of the motion. ECF Nos. 74, 75. Intervenor-Defendants Governor Inslee 19 and Attorney General Ferguson (collectively, “State Defendants”) join City 20 Defendants in the Motion for Judgment on the Pleadings. ECF No. 71. ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 2 Case 2:21-cv-00296-TOR filed 06/30/22 PageID.3818 Page 3 of 13 DISCUSSION 1 2 ECF No. 78 I. 3 Motion to Strike City Defendants move to strike the Declaration of Howarth (ECF No. 73) 4 filed concurrently with Plaintiffs’ Response, arguing the information contained 5 therein is redundant and immaterial. ECF No. 74. Plaintiffs did not respond to the 6 motion. On a motion pursuant to Rule 12(b)(6) or 12(c), the inclusion of materials 7 8 outside the pleadings that are not excluded by the court convert the motion to one 9 for summary judgment. Fed. R. Civ. P. 12(d). The decision to exclude the 10 materials is within the court’s discretion. See Hamilton Materials, Inc. v. Dow 11 Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). 12 The Court finds exclusion of the Declaration of Howarth is appropriate, as it 13 does not provide any additional information that is not already included in the 14 Complaint, and it has no bearing on the outcome of the motion for judgment on the 15 pleadings. Because exclusion is within the Court’s discretion, it is unnecessary to 16 strike the Declaration from the record; the Court simply will not consider it to 17 avoid converting Defendants’ Rule 12(c) motion to a motion for summary 18 judgment. City Defendants’ expedited Motion to Strike Declaration is denied. 19 II. 20 Motion for Judgment on the Pleadings “After the pleadings are closed—but early enough not to delay trial—a ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 3 Case 2:21-cv-00296-TOR ECF No. 78 filed 06/30/22 PageID.3819 Page 4 of 13 1 party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). In 2 reviewing a 12(c) motion, the court “must accept all factual allegations in the 3 complaint as true and construe them in the light most favorable to the non-moving 4 party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “Analysis under 5 Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under 6 both rules, a court must determine whether the facts alleged in the complaint, taken 7 as true, entitle the plaintiff to a legal remedy.” Chavez v. United States, 683 F.3d 8 1102, 1108 (9th Cir. 2012) (internal quotation marks and citation omitted). “A 9 judgment on the pleadings is properly granted when, taking all the allegations in 10 the non-moving party’s pleadings as true, the moving party is entitled to judgment 11 as a matter of law.” Marshall Naify Revocable Trust v. United States, 672 F.3d 12 620, 623 (9th Cir. 2012) (quoting Fajardo v. Cty. of Los Angeles, 179 F.3d 698, 13 699 (9th Cir. 1999)). 14 “Federal pleading rules call for ‘a short and plain statement of the claim 15 showing that the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do 16 not countenance dismissal of a complaint for imperfect statement of the legal 17 theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 18 10, 11 (2014) (citation omitted). 19 20 Federal Rule of Civil Procedure 15(a) provides that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave,” ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 4 Case 2:21-cv-00296-TOR ECF No. 78 filed 06/30/22 PageID.3820 Page 5 of 13 1 which “[t]he court should freely give . . . when justice so requires.” Fed. R. Civ. P. 2 15(a)(2). The Ninth Circuit has directed that this policy be applied with “extreme 3 liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 4 2003) (citation omitted). In ruling upon a motion for leave to amend, a court must 5 consider whether the moving party acted in bad faith or unduly delayed in seeking 6 amendment, whether the opposing party would be prejudiced, whether an 7 amendment would be futile, and whether the movant previously amended the 8 pleading. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). 9 “Absent prejudice, or a strong showing of any of the remaining [ ] factors, there 10 exists a presumption under Rule 15(a) in favor of granting leave to amend.” C.F. 11 ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 (9th Cir. 2011) 12 (citation omitted) (emphasis in original). 13 14 A. Procedural Due Process City Defendants and Intervenor-Defendants (collectively, “Defendants”) 15 move to dismiss Plaintiffs’ procedural due process claim, arguing the claim fails as 16 a matter of law because Plaintiffs were not entitled to pre-disciplinary Loudermill 17 hearings. ECF No. 72 at 5. The Complaint asserts Plaintiffs were denied 18 procedural due process as required by state law. ECF No. 1 at 9, ¶¶ 55–61. 19 20 As this Court indicated in the Order Denying Temporary Restraining Order, Plaintiffs were not entitled to greater notice than what was provided in the ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 5 Case 2:21-cv-00296-TOR ECF No. 78 filed 06/30/22 PageID.3821 Page 6 of 13 1 Proclamation itself. ECF No. 63 at 7–8. Nonetheless, City Defendants gave 2 Plaintiffs advance notice of the vaccination requirement, invited Plaintiffs to 3 provide additional information for the City’s consideration, offered Plaintiffs the 4 opportunity to participate in Loudermill hearings, then communicated the results of 5 those hearings along with proposed alternative accommodations. Id. at 8. 6 Plaintiffs simply disagreed with the City’s available accommodations. Id. 7 In response to the present motion, Plaintiffs argue they should be granted 8 leave to amend their Complaint because some Plaintiffs have now “lost their jobs 9 without due process.” ECF No. 72 at 15. Plaintiffs have not advanced any 10 arguments as to why they were entitled greater process than what was provided or 11 required by law. 12 Plaintiffs commenced this action on October 14, 2021 and sought a 13 Temporary Restraining Order the same day. ECF Nos. 1, 2. The Court denied the 14 motion on November 8, 2021, outlining the deficiencies with Plaintiffs’ claims. 15 ECF No. 63. Since then, Plaintiffs have had ample time to review their claims and 16 seek leave to correct the deficiencies in their Complaint, or to dismiss the claims 17 and seek relief in state court. They have done neither. Accordingly, the Court 18 finds Plaintiffs have unduly delayed seeking amendment and Defendants would be 19 prejudiced at this stage in the litigation. Moreover, amendment would be futile, as 20 Plaintiffs’ procedural due process claim fails as a matter of law. ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 6 Case 2:21-cv-00296-TOR 1 ECF No. 78 filed 06/30/22 PageID.3822 Page 7 of 13 B. Free Exercise 2 Defendants move for judgment on the pleadings on Plaintiffs’ free exercise 3 claim, arguing the Proclamation is constitutional under the applicable standard of 4 review. ECF No. 70 at 6–8. Plaintiffs allege the City has refused to accommodate 5 their sincerely held religious beliefs. ECF No. 1 at 10, ¶¶ 62–67. 6 The Court previously held the Proclamation survives rational basis review, 7 which is the applicable standard for facially neutral and generally applicable 8 regulations that allow for religious and medical exemptions. ECF No. 63 at 10–13. 9 In response to the present motion, Plaintiffs appear to resurrect the same arguments 10 asserted in their Motion for Temporary Restraining Order. ECF No. 72 at 7–12. 11 Because Plaintiffs do not advance any new arguments that would alter the Court’s 12 prior analysis and have failed to correct the deficiencies in the Complaint that led 13 to the Court’s denial of the Temporary Restraining Order, it is unnecessary to 14 revisit the issue here. Plaintiffs have failed to state a claim upon which relief may 15 be granted and Defendants are entitled to judgment on the pleadings. The Court 16 finds amendment would be futile, as Plaintiffs’ free exercise claim fails as a matter 17 of law. See ECF No. 63 at 10–13. 18 19 20 C. Equal Protection Defendants move for judgment on the pleadings on Plaintiffs’ equal protection claim, arguing the Proclamation satisfies rational basis review. ECF ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 7 Case 2:21-cv-00296-TOR ECF No. 78 filed 06/30/22 PageID.3823 Page 8 of 13 1 No. 70 at 8–9. Plaintiffs allege they are being treated differently than other 2 firefighters and EMS workers who are employed by other municipalities. ECF 3 Nos. 1 at 10–11, ¶¶ 68–74; 72 at 13. 4 If there is no suspect class at issue, a government policy “need only 5 rationally further a legitimate state purpose to be valid.” Minn. State Bd. For 6 Cmty. Colls. v. Knight, 465 U.S. 271, 291 (1984). Where the policy contains 7 classifications that are not based on suspect classes, “[t]he Equal Protection clause 8 will be satisfied [if] there is a plausible policy reason for the classification, the 9 government decisionmaker relied on facts that may have been considered to be 10 true, and the relationship of the classification to its goal is not so attenuated as to 11 render the distinction arbitrary or irrational.” Williams v. Brown, 567 F. Supp. 3d 12 1213, 1228 (D. Or. 2021) (quoting Nordlinger v. Hahn, 505 U.S. 1, 11 (1992)) 13 (internal quotations omitted). Plaintiffs did not pursue their equal protection claim 14 in their Motion for Temporary Restraining Order. Additionally, their present 15 responsive briefing lacks any cognizable legal arguments or citations to legal 16 authority. See ECF No. 72 at 13. In any event, Plaintiffs’ claim fails as a matter of 17 law as they have failed to allege membership in a suspect class; therefore, rational 18 basis is the applicable standard and the Proclamation survives that standard of 19 review. 20 ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 8 Case 2:21-cv-00296-TOR 1 ECF No. 78 filed 06/30/22 PageID.3824 Page 9 of 13 While the Proclamation differentiates between vaccinated and unvaccinated 2 employees, the classifications serve a legitimate government purpose, which is to 3 slow the spread of COVID-19, and the classifications are not arbitrary or irrational. 4 Moreover, the Proclamation applies with equal force to all City employees. 5 Plaintiffs cannot overcome the Proclamation’s legitimate purpose with complaints 6 that the availability of accommodations within the City of Spokane differ from 7 those available elsewhere. Plaintiffs have failed to allege a cognizable equal 8 protection claim and Defendants are entitled to judgment on the pleadings. 9 Amendment would be futile, as Plaintiffs’ claim fails as a matter of law. 10 11 D. Americans with Disabilities Act (ADA) Defendants seek judgment on the pleadings as to Plaintiffs’ ADA claim on 12 the grounds that Plaintiffs failed to exhaust their administrative remedies. ECF 13 No. 70 at 10. The Complaint alleges some Plaintiffs were denied accommodations 14 as required by the ADA. ECF No. 1 at 12–13, ¶¶ 75–91. 15 At the time this action was commenced, Plaintiffs had not exhausted their 16 administrative remedies; therefore, the Court found their ADA claim was unlikely 17 to succeed on the merits. ECF No. 63 at 8–10. Strangely, Plaintiffs continue to 18 argue they are entitled to ADA accommodations, despite providing no indication 19 they have since exhausted the administrative process. As such, Plaintiffs’ ADA 20 claim fails as a matter of law and Defendants are entitled to judgment on the ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 9 Case 2:21-cv-00296-TOR ECF No. 78 filed 06/30/22 PageID.3825 Page 10 of 13 1 pleadings. Amendment would be futile because Plaintiffs have not exhausted their 2 administrative remedies. 3 4 E. Due Process Plaintiffs allege a second due process claim as their Fifth Cause of Action. 5 ECF No. 1 at 13–14, ¶¶ 92–94. It is unclear what legal theory Plaintiffs are 6 attempting to advance with this claim; the Complaint simply alleges City 7 Defendants were “hiding behind the Governor’s Mandate and Mandate 8 Amendment,” and thus, Plaintiffs were denied due process. Id. at ¶ 94. In their 9 present Response, Plaintiffs appear to reassert the argument that they were denied 10 Loudermill due process hearings. ECF No. 72 at 14–15. The Court has already 11 dismissed Plaintiffs’ procedural due process claim. Accordingly, Defendants are 12 entitled to judgment on the pleadings regarding Plaintiffs’ Fifth Cause of Action. 13 Leave to amend is denied, as it would be futile, and Plaintiffs have unduly delayed 14 seeking leave to amend. 15 16 F. Contracts Clause Defendants move for judgment on the pleadings as to Plaintiffs’ Contracts 17 Clause claim on the grounds that Plaintiffs have failed to allege a specific contract 18 that has been interfered with by the Proclamation. ECF No. 70 at 11–12. 19 Plaintiffs’ claim is primarily based on Washington state law and only cursorily 20 references the Contracts Clause. ECF No. 1 at 14, ¶¶ 97–101. Plaintiffs did not ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 10 Case 2:21-cv-00296-TOR ECF No. 78 filed 06/30/22 PageID.3826 Page 11 of 13 1 cite to any facts, evidence, or caselaw to support this claim in their Motion for 2 Temporary Restraining Order and cite only to state law in their current responsive 3 briefing. Consequently, it appears Plaintiffs have abandoned the claim premised 4 on federal law. Accordingly, Defendants are entitled to judgment on the pleadings 5 as to the federal Contracts Clause claim. Leave to amend is denied, as it would be 6 futile and has been unduly delayed. 7 G. State Law Claims 8 Plaintiffs allege state law claims for wrongful termination, breach of 9 contract, infliction of emotional distress, and infringement of privacy rights. ECF 10 No. 1 at 14–15, ¶¶ 95–110. A federal court has supplemental jurisdiction over 11 pendent state law claims to the extent they are “so related to claims in the action 12 within [the court’s] original jurisdiction that they form part of the same case or 13 controversy . . . .” 28 U.S.C. § 1367(a). “A state law claim is part of the same 14 case or controversy when it shares a ‘common nucleus of operative fact’ with the 15 federal claims and the state and federal claims would normally be tried together.” 16 Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (citation omitted). 17 Once the court acquires supplemental jurisdiction over state law claims, § 1367(c) 18 provides that the court may decline to exercise jurisdiction if (1) the claim raises a 19 novel or complex issue of State law, (2) the claim substantially predominates over 20 the claim or claims over which the district court has original jurisdiction, (3) the ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 11 Case 2:21-cv-00296-TOR ECF No. 78 filed 06/30/22 PageID.3827 Page 12 of 13 1 district court has dismissed all claims over which it has original jurisdiction, or (4) 2 in exceptional circumstances, there are other compelling reasons for declining 3 jurisdiction. 28 U.S.C. § 1367(c). Indeed, “[i]n the usual case in which all federal- 4 law claims are eliminated before trial, the balance of factors . . . will point toward 5 declining to exercise jurisdiction over the remaining state-law claims.” Carnegie– 6 Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), superseded on other grounds 7 by statute as stated in Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 8 2010); see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en 9 banc). 10 Having dismissed all federal law claims asserted against Defendants, the 11 Court declines to exercise jurisdiction over the remaining state law claims. 28 12 U.S.C. § 1367(c)(3); Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (finding that 13 a district court did not abuse its discretion by declining to exercise supplemental 14 jurisdiction over the remaining state law claims when federal claims were 15 dismissed). The parties will not be prejudiced by the Court’s decision to decline 16 jurisdiction. Formal discovery in this federal case has not begun, so if Plaintiffs 17 choose to refile their state law claims in state court, they will not be prejudiced. 18 Further, the period of limitation for Plaintiffs’ remaining state law claims is tolled 19 for thirty days after the claims are dismissed unless Washington law provides for a 20 longer tolling period. See 28 U.S.C. § 1367(d). ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 12 Case 2:21-cv-00296-TOR 1 2 3 ECF No. 78 filed 06/30/22 PageID.3828 Page 13 of 13 ACCORDINGLY, IT IS HEREBY ORDERED: 1. Defendants’ Motion to Strike (ECF No. 74) and Motion to Expedite the same (ECF No. 75) are DENIED. 4 2. Defendants’ Motion for Judgment on the Pleadings (ECF Nos. 70, 71) is 5 GRANTED. The federal claims asserted against Defendants Nadine 6 Woodward, Briand Schaeffer, and City of Spokane, and Intervenor- 7 Defendants Governor Jay Inslee and Attorney General Robert Ferguson, 8 are DISMISSED with prejudice. 9 3. Any remaining state law claims are DISMISSED without prejudice. 10 The District Court Executive is directed to enter this Order and Judgment 11 12 accordingly, furnish copies to counsel, and CLOSE the file. DATED June 30, 2022. 13 14 THOMAS O. RICE United States District Judge 15 16 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS’ EXPEDITED MOTION TO STRIKE ~ 13

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