Diamond Concrete LLC et al v. Pacific Northwest Regional Council of the United States Brotherhood of Carpenters and Joinders of America et al, No. 3:2011cv05360 - Document 27 (W.D. Wash. 2011)
Court Description: ORDER granting in part and denying in part 18 Motion for Partial Summary Judgment. Signed by Judge Benjamin H. Settle. (MGC)
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Diamond Concrete LLC et al v. Pacific Northwest Regional Council...ers and Joinders of America et al Doc. 27 1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 DIAMOND CONCRETE, LLC, a Washington corporation; et. al., CASE NO. C11-5360BHS 7 Plaintiffs, 8 9 10 v. PACIFIC NORTHWEST REGIONAL COUNCIL OF CARPENTERS; et. al., Defendants. 11 12 13 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BASED ON THE APPLICABLE STATUTE OF LIMITATION PERIOD This matter comes before the Court on Defendants’ motion for partial summary 14 judgment on Plaintiffs’ defamation and Section 303 claims (Dkt. 18). The Court has 15 reviewed the briefs filed in support of and in opposition to the motion and the remainder 16 of the file and hereby grants in part and denies in part Defendants’ motion as discussed 17 herein. 18 19 20 I. FACTUAL AND PROCEDURAL HISTORY This matter arises out of Plaintiffs’ dispute with a labor union. See generally Dkt. 1 (Complaint). On May 10, 2011, Plaintiffs commenced this action and alleged, among 21 other things, that Defendants made defamatory statements about Plaintiffs and violated 22 23 24 25 26 27 the laws on secondary boycotts under Section 303 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 187. See Complaint. On June 7, 2011, Defendants moved for partial summary judgment on Plaintiffs’ defamation and § 303 claims. Dkt. 18. On June 27, 2011, Plaintiffs responded in opposition to Defendants’ motion for partial summary judgment. Dkt. 19. On July 1, 28 ORDER - 1 Dockets.Justia.com 1 2011, Defendants replied. Dkt. 23. The instant motion concerns whether or not the 2 applicable statutes of limitation bar Plaintiffs’ allegations of defamation and their Section 3 303 claim. 4 5 6 7 8 II. DISCUSSION A. Summary Judgment Standard Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 9 The moving party is entitled to judgment as a matter of law when the nonmoving party 10 11 12 13 14 fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. 15 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must 16 present specific, significant probative evidence, not simply “some metaphysical doubt”). 17 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if 18 there is sufficient evidence supporting the claimed factual dispute, requiring a judge or 19 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 20 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 21 626, 630 (9th Cir. 1987). 22 23 24 25 26 The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial -, e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically 27 attested by that party contradict facts specifically attested by the moving party. The 28 ORDER - 2 1 nonmoving party may not merely state that it will discredit the moving party’s evidence at 2 trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. 3 Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, 4 nonspecific statements in affidavits are not sufficient, and missing facts will not be 5 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990). 6 7 8 B. Defamation The parties agree that defamation claims filed in Washington are generally subject to a two-year statute of limitations period. See RCW 4.16.100(1) (two years applies to 9 defamation claims). The parties also agree that the allegations of defamation existing in 10 11 12 13 14 15 paragraphs preceding 41 in Plaintiffs complaint pertain to matters published prior to May 10, 2009. Compare Dkts. 18 & 23 with 19. In other words, absent some exception, Plaintiffs’ claims for defamatory statements made prior to May 10, 2009 are time barred because Plaintiffs did not file their complaint alleging defamation for such statements until more than two years later on May 10, 2011. Dkt. 1. 16 In opposition to Defendants’ statute of limitations argument, Plaintiffs argue that 17 the doctrine of continuing torts applies in their case. Dkt. 19 at 4 (collecting cases). It is 18 true that 19 20 21 22 23 24 Washington recognizes the theory of continuing torts. See Island Lime Co. v. Seattle, 122 Wn. 632 (1922) (nuisance); Doran v. City of Seattle, 24 Wn. 182, 183 (1901) (negligence); Fradkin v. Northshore Util. Dist., 96 Wn. App. 118 (1999) (trespass). When a tort is continuing, the “statute of limitations runs from the date each successive cause of action accrues as manifested by actual and substantial damages.” Fradkin, 96 Wn. App. at 125. A tort is continuing if the intrusive condition is reasonably abatable and not permanent. Id. The tort continues until the intrusive substance is removed. Bradley v. Am. Smelting & Refining Co., 104 Wn. 2d 677, 693 (1985). 25 Pac. Sound Res. v. B.N.S.F. Ry., 130 Wn. App. 926, 941 (2005) (emphasis added). In 26 urging the Court to apply the doctrine of continuing torts, Plaintiffs argue that their 27 28 ORDER - 3 1 defamation claim stems from certain of Defendants’ statements made in or around June 2 2008 until the present. Dkt. 19 at 5. 3 However, Plaintiffs cite to no case, and this Court has found no case wherein a 4 Washington court or a federal court applying Washington law has applied the doctrine of 5 continuing torts to defamation claims. As discussed above, the cases are typically ones of 6 7 8 nuisance and trespass. But see LaMon v. Butler, 112 Wn.2d 193, 196-197 (holding that the two-year statute of limitations period barred five articles published two years prior to the LaMons complaint). Notably, the LaMon court did not apply the doctrine of 9 continuing torts to include five articles previously published notwithstanding the fact that 10 11 12 13 14 a sixth article containing identical misstatements was published within the statute of limitations period and, therefore, not barred. The holding in LaMon cuts directly against Plaintiffs’ position. Moreover, in tracing back the applicability of the continuing tort doctrine, the 15 Fradkin case is instructive. See 96 Wn. App. at 124. In Fradkin, the court explained that 16 the continuing tort doctrine applies to instances in which the “the intrusive condition is 17 reasonably abatable and not permanent.” Id. at 125 (citing the 1901 case of Doran, 24 18 Wn. 182). Put otherwise, the continuing damage can be stopped and the damages already 19 inflicted are able to be undone. 20 Here, it may be that Defendants have published defamatory statements within the 21 two-year limitations period beginning on May 10, 2009 (two years from the date of the 22 complaint). However, in Plaintiffs’ case, any statements published prior to that time are 23 not abatable, permanent, or both, which is unlike a particulate matter case (nuisance) that 24 25 26 can be stopped (abated) and the damage reversed (not permanent). In short, Plaintiffs have not provided adequate authority for the proposition that they may seek redress for allegedly defamatory statements made by Defendants that precede May 10, 2009 (i.e., the 27 allegations complained of in their Complaint preceding paragraph 41). Nor have Plaintiffs 28 ORDER - 4 1 sufficiently articulated with any persuasiveness how Defendants’ alleged prior 2 defamatory statements could actually be abated or are not permanent. Logically, while 3 future statements could be discontinued and are not yet permanent, the same cannot be 4 said for past statements that have already been published. 5 6 7 8 Therefore, the Court grants Defendants’ motion for partial summary judgment as to the defamation claims arising from Plaintiffs allegations of defamation that precede paragraph 41 in their Complaint. See Dkt. 1.1 C. Section 303 9 Defendants move to dismiss on summary judgment Plaintiffs’ § 303 claims based 10 11 12 13 14 on a two-year statute of limitations period. Dkt. 23 at 6 (citing RCW 4.16.130, Washington’s “catch-all” limitations statute). In opposition, Plaintiffs argue that their § 303 claims are subject to a three-year statute of limitations period under RCW 4.16.080(2). Dkt. 19 at 5. While the parties agree that Washington law provides the 15 applicable statutory limitations period, they dispute which time period applies to 16 Plaintiffs’ instant § 303 claims. See International Union of Operating Engineers, etc. v. 17 18 19 20 21 22 23 24 25 26 27 28 1 To the extent Plaintiffs could make a different argument for the allegations in paragraphs 21-24 of their Complaint (currently not identified with a date of publication), they have failed to provide competent evidence that these allegedly defamatory statements were made after May 10, 2009. See Complaint at ¶¶ 21-24 (not providing dates of publication). Additionally, Defendants correctly point out that Plaintiffs may not rely on a declaration made without personal knowledge to support evidence produced. Here, Plaintiffs supply the declaration of their counsel to support their position that the defamatory statements have continued. See Dkt. 19 (relying on the Declaration of Sok-Khieng Lim). Although Plaintiffs’ counsel did supply documents that are purported to be defamatory publications occurring after March of 2009, the Court cannot tell from the documents whether or not they were in fact published after such date. Further still, the documents would need to have been published after May of 2009, the two year cutoff date based on the applicable statute of limitations discussed above. Plaintiffs, in any event, failed submit competent evidence supported by the declaration of someone with personal knowledge to this effect; Plaintiffs’ counsel’s declaration, on its own, fails to meet this requirement. Therefore, the Court’s order on summary judgment herein as to defamation applies to the allegations in ¶¶ 2124 of Plaintiffs’ complaint. ORDER - 5 1 Fischbach & Moore, Inc., 350 F.2d 936, 939 (9th Cir. 1965) (holding that a state’s most 2 analogous statute of limitations period applies to § 303 claims). 3 Defendants first argue that RCW 4.16.080(2) cannot apply to § 303 claims because 4 that limitations statute is applied only to issues involving personal rights rather than the 5 rights of an entity. Dkt. 23 at 7. However, while Defendants supply authority wherein a 6 7 8 court applied RCW 4.16.080(2) to such personal rights cases (e.g., car accidents), they do not supply authority for the proposition that the statute does not apply to entity rights. As such, the argument is unpersuasive. 9 Defendants next oppose Plaintiffs’ claim that § 303 claims are subject to the three10 11 12 13 14 15 16 year limitations period in RCW 4.16.080(2) because courts have applied that period to § 301 cases and other courts have held that § 301 and § 303 claims are subject to the same limitations period. Compare Dkt. 19 at 6 with Dkt. 23 at 7. For its position, Plaintiffs rely on § 303(b), which provides that suits under § 303 are “subject to the limitations period of § 301.” See Dkt. 19 at 6 (quoting 29 U.S.C. § 187(b)). In opposition, Defendants argue that such argument “has been expressly rejected 17 by courts out of recognition that the two sections were enacted for different reasons.” Dkt. 18 23 at 8 (citing BE & K Constr. Co. v. Will & Grundy Counties Bldg. Trades Council, 156 19 F.3d 756, 762 (7th Cir. 1998)). Defendants’ interpretation of BE & K Constr. Co. is not 20 entirely on point because, while that opinion is instructive to this case, it did not expressly 21 reject Plaintiffs’ position that § 303 claims and § 301 claims are treated the same for 22 purposes determining which limitations period applies to such claims in Washington. BE 23 & K Const. Co. involved the question of whether a six-month limitation period applied to 24 25 26 § 301 claims. In rejecting the six-month limitations period for straightforward § 301 claims, the Seventh Circuit held that an exception to the limitations language in § 301 (referencing § 303) exists whereby § 301 claims are subject to a six-month rather than 27 three-year limitations period when a court is presented with a hybrid case involving a § 28 ORDER - 6 1 301 claim mixed with a duty of fair representation action. See BE & K Constr. Co., 156 2 F.3d at 762-63 (rejecting the hybrid limitations period of six months as the period 3 applicable to straightforward § 301 claim or a § 303 unfair labor practices claim cases). 4 Thus, in contrast to Defendants’ position, the Seventh Circuit expressed that the 5 rule on hybrid cases (six-month limitations period) “should not be taken as a departure 6 7 8 from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere.” Id. (citation omitted). Further, in BE & K Constr. Co., the Seventh Circuit did not reject the statutory language in § 301 that expressly provides that the same 9 limitations apply to § 301 claims applies equally to § 303 cases. Id. 10 11 12 13 14 To support its position that a three-year limitations period applies, Plaintiffs rely on Washington v. Northland Marine Co., Inc., 681 F.2d 582 (9th Cir. 1982). In Northland, the Ninth Circuit held that Washington’s three-year statute of limitation period rather than the two-year “catch-all” statute applied to § 301 claims. Id. at 586-87. 15 Defendants contend that Northland does not apply because it was a hybrid case, which 16 requires a six-month limitations period. Dkt. 23 at 8 (relying on BE & K Constr. Co., 156 17 F.3d at 762). Although Defendants are correct about Northland being a hybrid case, their 18 arguments on this issue miss a critical distinction in the cases coming after Northland. See 19 Scoggins v. Boeing Co., Inc., 742 F.2d 1225, 1227-1228 (9th Cir. 1984). 20 21 22 23 24 25 26 27 In Scoggins, the Ninth Circuit reviewed the cases following Northland and their impact going forward: Prior to the U.S. Supreme Court’s decision in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 (1981), the statute of limitations for hybrid Section 301 actions in Washington was three years. Christianson v. Pioneer Sand & Gravel Co., 681 F.2d 577 (9th Cir. 1982) (three year statute of limitations for suits against employers); Washington v. Northland Marine Co., 681 F.2d 582 (9th Cir. 1982) (three year statute of limitations for suits against unions). In Mitchell, the Supreme Court held that a state limitation period for vacation of an arbitral award controlled the employee’s Section 301 action against his employer Mitchell, 451 U.S. at 64. In Washington, this period is three months. See Wash. Rev. Code § 7.04.180 (1974). The Mitchell opinion, however, invited a square presentation of the 28 ORDER - 7 1 2 3 4 5 6 7 8 question whether a more appropriate period would be the six-month limitation period found in Section 10(b) of the National Labor Relations Act. 451 U.S. at 60 n. 2. In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983), the Court decided this question. The Court held that the limitation period as to claims against both an employer and a union is six months. We must decide whether either of these decisions applies to Scoggins’ action, filed eight months after Mitchell and sixteen months before DelCostello. We have held that DelCostello does not apply . . . to claims against employers under the Labor Management Relations Act. See Barina v. Gulf Trading and Transportation Co., 726 F.2d at 563-64. The six-month limitations period announced in DelCostello cannot, therefore, govern Scoggins’ action. Id. (Emphasis added). The Ninth Circuit, contrary to Defendants’ position, went on 9 to hold that Scoggins action against the union was subject to Washington’s three10 11 12 13 14 year statute of limitations period. Id. at 1229 (affirming that portion of Northland, 681 F.2d at 586). Based on the foregoing, the Court concludes that Plaintiffs have supplied adequate authority to support their position that the three-year statute of limitations 15 period in RCW 4.16.080, rather than the “catch all” two year period in RCW 16 4.16.130, applies to their indisputably, non-hybrid case against Defendants. 17 Because the three-year limitations period applies to § 303 claims and because it is 18 undisputed that Plaintiffs’ filed their § 303 complaint within the three-year 19 limitation period, their § 303 claims are not time barred. 20 21 Therefore, Defendants’ motion for summary judgment on this issue is denied. 22 23 24 25 26 27 III. ORDER 28 ORDER - 8 1 Therefore, it is hereby ORDERED that 2 (1) claim is GRANTED as discussed herein, and 3 4 (2) 5 6 Defendants’ motion for summary judgment on Plaintiffs’ defamation Defendants’ motion for summary judgment on Plaintiffs’ § 303 claim is DENIED as discussed herein. DATED this 26th day of July, 2011. 7 A 8 9 BENJAMIN H. SETTLE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER - 9
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