Cronk v. City of West Richland et al, No. 4:2014cv05041 - Document 35 (E.D. Wash. 2015)
Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT - granting 23 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (CC, Case Administrator)
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Cronk v. City of West Richland et al Doc. 35 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. KENNETH LEE CRONK, 8 Plaintiff, 9 10 4:14-CV-5041-EFS ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT v. CITY OF WEST RICHLAND, ET AL., 11 Defendants. 12 13 Before the Court, without oral argument, is Defendants' Motion 14 for Partial Summary Judgment, ECF No. 23. 15 with 16 Plaintiff failed 17 4.96.020. Plaintiff opposes the motion. 18 the pleadings and the file in this matter, the Court is fully informed 19 and grants the motion for partial summary judgment. prejudice of to all of Plaintiff’s comply 20 with I. 21 Plaintiff Kenneth the Defendants seek dismissal state notice law claims requirements ECF No. 28. because of RCW Having reviewed INTRODUCTION Cronk sued the City of West Richland and their official and 22 several 23 personal capacities. 24 under 42 U.S.C. §§ 1983 and 1985 and pendent state law tort claims. 25 Id. 26 summary judgment pertain only to Plaintiff’s state law claims. city officers and employees in Complaint, ECF No. 1. both He asserts federal claims The issues currently before the Court in this motion for partial The ORDER - 1 Dockets.Justia.com 1 Court must determine the following: 2 comply with the notice requirements of RCW 4.96.020 in order to pursue 3 his state law claims against Defendants? (2) If so, did Mr. Cronk 4 comply with the notice requirement? 5 their lack-of-notice defense? 6 second is factual, and the third is a mixed question of law and fact. 7 As explained further below, the Court will grant summary judgment if 8 it resolves all legal issues in Defendants’ favor and finds there is 9 no genuine issue of material fact. II. 10 (1) Was Mr. Cronk required to (3) If not, did Defendants waive The first issue is a legal one, the LEGAL STANDARD 11 Summary judgment is appropriate if the record establishes "no 12 genuine dispute as to any material fact and the movant is entitled to 13 judgment as a matter of law.@ 14 opposing summary judgment must point to specific facts establishing a 15 genuine dispute of material fact for trial. 16 477 U.S. 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio 17 Corp., 475 U.S. 574, 586-87 (1986). 18 make such a showing for any of the elements essential to its case for 19 which it bears the burden of proof, the trial court should grant the 20 summary-judgment motion. When 21 considering Fed. R. Civ. P. 56(a). The party Celotex Corp. v. Catrett, If the non-moving party fails to Celotex Corp., 477 U.S. at 322. this motion, the Court (1) believed the 22 undisputed facts1 and the non-moving party=s evidence, (2) drew all 23 justifiable inferences therefrom in the non-moving party=s favor, (3) 24 did not weigh the evidence or assess credibility, and (4) did not 25 1 26 The parties failed to file a Joint Statement of Uncontroverted Facts no later than three days after service of the reply, as required by the Court’s Scheduling Order, ECF No. 10, at 4, and are reminded of the requirement to do so with any future summary judgment motions. ORDER - 2 1 accept assertions made 2 contradicted by the record. 3 U.S. 242, 255 (1986); Scott v. Harris, 550 U.S. 372, 380 (2007). 6 the non-moving party that were flatly See Anderson v. Liberty Lobby, Inc., 477 III. ANALYSIS 4 5 by A. Applicability of RCW 4.96.20’s Notice Requirement RCW Chapter 4.96 governs actions under state law against local 7 government entities, including cities. 8 be liable for damages arising out of their tortious conduct or the 9 tortious conduct of their past or present officers, employees, or 10 volunteers while performing or in good faith purporting to perform 11 their official duties, to the same extent as if they were a private 12 person or corporation.” 13 filing 14 employees, an individual must file a claim for damages with the city. 15 RCW 4.96.020. 16 be presented on the standard tort claim form and delivered to the 17 city’s 18 Plaintiff’s state law claims against the City of West Richland are 19 subject to RCW 4.96.020’s notice requirement. 20 assert otherwise. 21 a lawsuit RCW 4.96.010. asserting tort It provides that cities “shall At least sixty days prior to claims against a city or its Section 4.96.020 requires that all claims for damages appointed agent. By the plain language of RCW 4.96.20, Plaintiff does not However, Plaintiff argues that his claims against the individual 22 Defendants, 23 Richland, are not governed by RCW 4.96.020 because the individual 24 Defendants acted with personal malice, which places their actions 25 outside the scope of their employment. 26 relies on Kephart v. Genuity, Inc., 136 Cal. App. 4th 280 (Cal. Ct. ORDER - 3 who are employees or officers of the City ECF No. 28, at 3. of West Plaintiff 1 App. 2006). 2 analyzing whether an employer was vicariously liable for an employee’s 3 torts, stated that an employer “may be, but will not necessarily be, 4 held vicariously liable for an employee’s torts that are willful, 5 malicious, or criminal.” 6 not governed by the decision of a California appellate court. In 7 In that Washington, case, the California Id. at 292. “[a]n employee’s Court of Appeals, in However, the present case is conduct will be outside the 8 scope of employment if it is different in kind from that authorized, 9 far beyond the authorized time or space limits, or too little actuated 10 by a purpose to serve the master.” 11 35, 12 (internal quotation marks omitted). 13 of vicarious liability by showing that the employee’s conduct was (1) 14 intentional or criminal and (2) outside the scope of employment.” 15 (internal quotation marks and emphasis omitted). 16 or criminal conduct is not per se outside the scope of employment. 17 Id. 53 (2002) (quoting Robel v. Roundup Corp., 148 Wn.2d Restatement 2d of Agency § 228(2) (1958)) “An employer can defeat a claim Id. However, intentional 18 Here, Plaintiff failed to demonstrate that there is a genuine 19 dispute of material fact as to whether the individual Defendants acted 20 outside the scope of their functions as officers or employees of the 21 city when committing the alleged wrongs against him. 22 not explain why or how he believes the individual Defendants’ actions 23 fall outside the scope of their employment. 24 fulfilled Federal Rule of Civil Procedure 56(c)(1)’s requirement that 25 he cite to “particular parts of materials in the record.” 26 Civ. P. 56(c)(1); see also Bhan v. NME Hosps., Inc., 929 F.2d 1404, ORDER - 4 Plaintiff does Plaintiff also has not Fed. R. 1 1409 (9th Cir. 1991) (“the opposing party may not rely on denials in 2 the pleadings but must produce specific evidence, through affidavits 3 or admissible discovery material, to show that the dispute exists.”). 4 Instead, Plaintiff states that the deposition of the Chief of 5 Police “will contradict specific facts that are attested to in the 6 attached 7 “directly contradicts Defendants response to a specific Interrogatory 8 Response and facts therein.” 9 explanation Declaration of the of Plaintiff,” subject and that ECF No. 28, at 3. of the the same deposition Plaintiff provided no deposition testimony, and he 10 declined to attach the deposition transcript to his response because 11 the Police Chief had not yet signed and approved it. 12 clear why Plaintiff was unable to obtain approval of the deposition 13 transcript and provide it to the Court within the time provided for 14 his response, or, failing that, seek an extension of time to provide 15 the transcript. 16 transcript says or how it supports, or even relates to, Plaintiff’s 17 arguments on the issue of RCW 4.96.020 notice. 18 additional evidence exists does not, without more, create a genuine 19 issue of material fact, and the Court declines to find that a genuine 20 dispute exists on the sole basis of Plaintiff’s vague and confusing 21 references to a deposition transcript that has not been provided to 22 the Court. 23 requirement applies to Plaintiff’s state law claims against the City 24 of West Richland and the individual Defendants. 25 // 26 / ORDER - 5 Id. It is not More importantly, it is not clear what the deposition The mere fact that Accordingly, the Court finds that RCW 4.92.020’s notice 1 B. Whether Notice Was Filed 2 The City of West Richland appointed the City Clerk as the agent 3 to receive notice of tort claims provided pursuant to RCW 4.96.020. 4 Decl. of Julie Richardson, ECF No. 26, at ¶ 4; Resolution No. 20-07, 5 ECF No. 26-1. 6 claim form from Mr. Cronk or from anyone else on his behalf. 7 ¶¶ 8–11. Plaintiff’s response brief does not assert that he filed the 8 required notice, 9 Defendants’ evidence that no notice was received. The City Clerk has never received a notice of tort nor does it provide any evidence to Id. at contradict The Court finds 10 that there is no genuine dispute that Plaintiff failed to provide the 11 required notice. 12 C. Waiver2 and Estoppel Plaintiff 13 his seems of argue that 16 of tort claim, even though he expressed his complaints at multiple 17 city 18 compelled to seek judicial intervention. 19 does not assert that Defendants in any way misled him into believing 20 he need not comply with the notice requirement; he simply argues that 21 they did not inform him of it. 22 required to inform Plaintiff about the requirement that he file a 23 notice of tort claim form before commencing suit. Id. the 4.96.020 mayor that as he ECF No. 28, at 4. a from because city officials never told him that he needed to file a notice informed RCW estopped 15 and with are asserting meetings compliance Defendants 14 council lack to defense would be Plaintiff However, Defendants were not See RCW 4.96.020 24 2 25 26 Defendants asserted a defense based on RCW 4.96.020 in their Answer, stating “plaintiff has failed to comply with RCW 4.96 et seq. which is a necessary condition precedent to commencing and maintaining this action,” Answer, ECF No. 6, at 7, so Plaintiff cannot argue Defendants failed to comply with Federal Rule of Civil Procedure 8(c). ORDER - 6 1 (containing no requirement of notice to potential claimants); see also 2 Woods v. Bailet, 116 Wash. App. 658, 667–68 (Wash. Ct. App. 2003) 3 (holding 4 discovered that Chapter 4.96 applied to a quasi-municipal corporation, 5 even though it was not apparent from the corporation’s name that is 6 was a government entity). 7 RCW 4.96.020’s notice requirement as a defense to Plaintiff’s state 8 law claims. that a plaintiff who exercised due diligence would have Defendants are not estopped from asserting 9 Plaintiff also appears to argue that Defendants should not be 10 permitted to assert the lack of notice against him because they had 11 provided him with a Notice of Trespass prohibiting him from accessing 12 City Hall. 13 Trespass provided by Plaintiff. 14 Notice of Trespass, dated June 19, 2012, prohibits Plaintiff from 15 entering the “City of West Richland City Hall, Business Offices and 16 City Council Chambers.” 17 August 18 language, “If you need to conduct any city business, please contact 19 West Richland Police Chief Brian McElroy at 967-3425 and he will 20 assist 21 Plaintiff was on notice that he could arrange to conduct city business 22 through Police Chief McElroy, and the Complaint in this case was not 23 filed until March 27, 2014, more than sixty days after August 19, 24 2012. 25 arrange to file a notice of tort claim prior to filing the instant 26 lawsuit. ECF No. 28, at 5. 19, you.” 2012, ECF ECF Nos. 32-4 & 32-5. ECF No. 32-4. states, No. The Court has reviewed the Notices of in 32-5. addition The first However, the Notice dated to Therefore, the as of above August prohibitive 19, 2012, Plaintiff had adequate time to contact Police Chief McElroy and ORDER - 7 1 Furthermore, Plaintiff could have provided the required notice 2 at any time without going through Police Chief McElroy simply by 3 asking a friend or family member to deliver his completed tort claim 4 form to the City Clerk or by mailing the form, as is provided for in 5 the statute. 6 claim form is delivered in person or is received by the agent by 7 regular mail, registered mail, or certified mail, with return receipt 8 requested”). 9 fact as to whether Defendants’ Notice of Trespass prevented him from 10 RCW 4.96.020(2) (“A claim is deemed presented when the Plaintiff has failed to articulate a genuine issue of filing the required notice. IV. 11 CONCLUSION 12 The Court finds that Plaintiff was required by RCW 4.96.020 to 13 provide a notice of tort claim to the City Clerk and then to wait 14 sixty 15 requirement applies to all of his state law tort claims against all of 16 the Defendants in this matter. 17 the required notice, and Defendants are not estopped from asserting, 18 nor have they waived, RCW 4.96.020’s notice requirement as a defense. days before commencing suit because RCW 4.96.020’s notice Plaintiff undisputedly did not provide 19 Accordingly, IT IS HEREBY ORDERED: 20 1. 23, is GRANTED. 21 22 Defendants’ Motion for Partial Summary Judgment, ECF No. 2. Plaintiff’s state law claims for defamation, libel, 23 slander, outrage, and intentional and negligent infliction 24 of emotional distress are DISMISSED with prejudice. 25 26 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. ORDER - 8 1 DATED this 26th day of February 2015. 2 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2014\5041.grant.partial.sj.lc2.docx ORDER - 9
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