Opinion
No. C03-1365L.
July 27, 2006
ORDER ON THE CITY OF SEATTLE'S MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter comes before the Court on the City of Seattle's "Motion for Partial Summary Judgment Dismissing the Damages Claims of All Class Members Who Failed to Properly File a Claim for Damages with the City of Seattle and of Those Who Filed and Settled Claims with the City." Dkt. # 192. As the title of this motion suggests, the City seeks dismissal of: (1) claims by class members who did not properly file claims for damages with the City; and (2) claims of class members who have previously filed and settled damages claims against the City.
For the reasons set forth below, the City's motion is granted in part and denied in part. The Court grants the City's request to dismiss the claims of class members who have settled their damages claims against the City. However, the Court denies the City's request to dismiss the claims of class members who allegedly did not properly file damages claims with the City.
I. BACKGROUND
Plaintiffs filed their original complaint in King County Superior Court on March 20, 2003. This action was filed as a putative class action challenging the City of Seattle's policy of impounding the vehicles of persons arrested for driving while their licenses were suspended (DWLS). The original complaint raised claims under 42 U.S.C. § 1983 against the City, as well as § 1983 and state-law claims against various towing companies.In May 2003, Plaintiffs filed a first amended complaint (FAC) that added several named plaintiffs and defendants. After being served with the FAC, the City removed this action to federal court in June 2003.
The City has maintained, the Plaintiffs do not dispute, that the City was not served with a copy of the original complaint, but was instead first served with the FAC on June 9, 2003. See Dkt. # 15 at 2.
On October 1, 2003, Plaintiffs filed a second amended complaint (SAC). Unlike the previous complaints, the SAC raised state-law tort claims against the City, including a claim for conversion.
The City filed an answer to Plaintiffs' original complaint on July 15, 2003. However, the City never filed an answer to the FAC, nor did the City file an answer to the SAC until November 4, 2005 — more than two years after the SAC had been filed. In its belated answer to the SAC, the City asserted affirmative defenses that had not been raised in its answer to the original complaint, including assertions that Plaintiffs "failed to file claims with the city as required by state law, a condition precedent to suit" and that "[m]ost of the plaintiffs and the class members have failed to satisfy a condition precedent because they have not properly filed Claims for Damages with the City of Seattle." Dkt. # 185 ¶¶ 3, 14.
Between the filing of the SAC in October 2003 and the City's answer to the SAC in November 2005, this action was litigated extensively. Judge Pechman granted Plaintiffs' motion for class certification on May 20, 2004, approved the notice to be sent to class members, re-defined or narrowed the class on several occasions, dismissed the towing companies as defendants, and ruled on several dispositive motions. Perhaps most notably, on June 27, 2005, Judge Pechman granted Plaintiffs' motion for partial summary judgment on their conversion claim against the City. In this ruling, Judge Pechman held the City liable for Plaintiffs' conversion claim, leaving only the issue of damages to be determined at trial.
Judge Pechman has since recused herself from this matter.
Invoking the affirmative defenses raised in its belated answer to the SAC, the City seeks to dismiss the claims of class members who allegedly did not properly file a claim for damages with the City. In addition, the City seeks dismissal of the claims of class members who have previously filed and settled damages claims against the City.
II. DISCUSSION
A. Claims of Class Members Who Allegedly Failed to Properly File Claims for Damages With the City
The City first argues that class members who did not properly file claims for damages with the City must be dismissed. The City bases this argument on provisions of RCW 4.96.010-020 and Seattle Municipal Code (SMC) 5.24.005. RCW 4.96.020(4) provides, in relevant part:
No action shall be commenced against any local governmental entity for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof.
SMC 5.24.005 includes similar requirements. The City maintains that only 43 class members attempted to file claims for damages in accordance with these statutes. The City also asserts that a number of those 43 class members failed to file their claims properly.
Plaintiffs argue that the City's motion should be denied for two separate reasons: (1) the City has waived its tort claim defense; and (2) the City's argument is contrary to the Washington Court of Appeals' decision in Oda v. State, 111 Wn. App. 79, 44 P.3d 8 (2002). The Court considers each of Plaintiffs' arguments below.
1. Waiver
Plaintiffs maintain that the City has waived its tort claim defense by waiting until the eleventh hour of this litigation to raise the defense. Plaintiffs rely primarily on the Washington Supreme Court's decision in Miotke v. City of Spokane, 101 Wn.2d 307, 678 P.2d 803 (1984), a case that involved claims against the City of Spokane and the state. In Miotke, the state argued that the plaintiffs' claims were barred because they had not complied with the provisions of RCW 4.92.110, a statute that requires a plaintiff seeking tort damages against the state to file a claim with the state before bringing suit. The court summarily rejected the state's argument, noting that the state had not raised this defense until three years after the litigation had begun and after substantial litigation had occurred. Id. at 337. The Court held:
In the case before us, [the tort claim] statute was not raised as a defense by the State until February 15, 1979, 3 years after the litigation began. At that time, the first phase of litigation had been completed. Several days of hearing had been conducted and the trial court had entered its first set for findings and conclusions. In view of the substantial litigation which had occurred before the defense was raised, we agree with the trial court that defendants had waived any objections to plaintiff's failure to file under RCW 4.92.110.Id. Similarly, in this case the City first asserted its tort claim defense on November 4, 2005, more than two years after Plaintiffs' conversion claim against the City had been alleged in the SAC and after the completion of the liability phase of this litigation.
In light of the extensive litigation that occurred in this case before the City raised its tort claim defense, the Court finds that the City has waived its right to assert this defense. Much like the state in Miotke, the City is first attempting to assert this defense after substantial litigation has occurred in this matter and after its liability has been established. As a result, Miotke is closely analogous to this case, if not directly on point.
The tort claim statute at issue in Miotke (RCW 4.92.110) applies to suits against the state and is worded slightly differently than RCW 4.96.010-020 and SMC 5.24.005, which apply to tort claims against the City. However, in substance the statutes impose similar requirements on plaintiffs seeking to bring tort actions against either the state or a local governmental entity.
The City argues that Miotke is distinguishable, claiming that Plaintiffs here have not shown substantial evidence of unequivocal acts or conduct showing the City's intent to waive the tort claim defense. The Court disagrees. As in Miotke, the failure of the City to raise the tort claim defense until this late stage of the proceedings and after the completion of the liability phase of the litigation supports a finding of waiver.
The City also suggests that it has "expressly and impliedly" raised the tort claim defense throughout this litigation. Reply at 5. However, the City points to no persuasive evidence showing that it expressly raised the tort claim defense before it filed its answer to the SAC in November 2005, nor does it identify any evidence that can be reasonably construed as an "implied" effort to raise this defense. In any case, it would not be permissible for the City to raise this defense "impliedly." By its terms, the City's tort claim defense asserts that Plaintiffs failed to perform a condition precedent. Under Fed.R.Civ.P. 9(c), "[a] denial of performance or occurrence [of a condition precedent] shall be made specifically and with particularity." As a result, the City was obliged under Rule 9(c) to raise its tort claim defense explicitly.
The City also contends that its answer to Plaintiffs' original complaint demonstrates that the City did not intend to waive its tort claim defense. The City notes that its answer to the original complaint asserted that Plaintiffs' claims "are barred by adequate process provided by the relevant statutory and ordinance provisions, and/or the relevant statutory and ordinance provisions provide the exclusive remedy to the plaintiffs in this matter and plaintiffs have failed to exhaust their available remedies," as well as a general allegation that Plaintiffs lacked standing. The City's contentions are without merit. First, as noted above, Rule 9(c) requires a party to plead failure to perform a condition precedent specifically and with particularly. The general allegations in the City's answer to the original complaint do not meet those requirements. Moreover, the City overlooks the fact that Plaintiffs' original complaint did not include any claims for tort damages against the City. Indeed, the original complaint expressly alleged that "Plaintiffs do not bring any tort claims against the City at this time, and nothing in this Complaint should be construed as stating a claim in tort against the City." Dkt. #3, Plaintiffs' original complaint ¶ 52. As a result, the City's answer to the original complaint cannot be construed as an attempt to preserve a tort claim defense, given that no tort claims against the City were even alleged in the original complaint.
Finally, the City argues that Plaintiffs cannot demonstrate prejudice from the late assertion of the tort claim defense. The Court disagrees. This matter has been vigorously litigated for years at considerable time and expense to all involved, including Plaintiffs and their counsel. Plaintiffs also note that they voluntarily waived their Fourth Amendment claim against the City (a claim that is not subject to any statutory notice requirements) based upon Judge Pechman's order granting partial summary judgment on the conversion claim. As a result, permitting the City to assert a new defense at this late stage of the proceedings would be prejudicial to Plaintiffs.
In addition, the City's contention that no prejudice would result from the late assertion of this defense is inconsistent with its position regarding the application of the statute of limitations in this case. The statute of limitations for conversion claims is three years. See RCW 4.16.080. The class includes persons whose vehicles were impounded for DWLS violations between March 20, 2000 through December 27, 2002. The City first raised its tort claim defense on November 4, 2005, nearly three years after the end of the class period. Although Plaintiffs note that the filing of a class action tolls the statute of limitations for the claims of absent class members, the City nonetheless maintains that the statute of limitations has now run for all class members who have not properly filed claims. See Reply at 3 n. 1 (arguing that "Plaintiffs' claim that the statute of limitations has not yet run is baseless"). Given the City's view that the claims of nearly all absent class members are now time-barred, it is incongruous for the City to maintain that Plaintiffs and absent class members would not be prejudiced by the City's belated assertion of the tort claim defense.
Therefore, the Court finds that the City has waived its right to assert a tort claim defense under RCW 4.96.010-020 or SMC 5.24.005.
2. Oda Decision
Plaintiffs next argue that the City's motion is contrary to the decision in Oda v. State, 111 Wn. App. 79, 44 P.3d 8 (2002). InOda, the court considered the application of the state's tort claim statute in the context of class action litigation. This statute provides that "[n]o action shall be commenced against the state for damages arising out of tortious conduct until sixty days have elapsed after the claim is presented to and filed with the risk management office." RCW 4.92.110. As noted earlier, this provision is similar to the tort claim requirements of RCW 4.96.010-020 and SMC 5.24.005 that apply to claims against local governmental entities.
The state argued in Oda that a class action for tort damages against the state could be maintained only: (1) if all members of the class complied individually with the statutory requirements for filing tort claims; or (2) if at least one properly-filed tort claim gave notice that the claimant intended to seek class certification. See Oda, 111 Wn. App. at 87. The Oda court rejected both arguments.
First, the court dismissed the state's contention that a class action for tort damages could only proceed if at least one plaintiff notified the state that he or she intended to pursue class certification. The court based this holding on the fact that the tort claim statute "does not require a claimant to anticipate and describe future procedural developments that may occur in the lawsuit once it is filed." Id. at 87. The court further found that absent class members were not required to comply with the requirements of the tort claim statute, noting that "[t]o require dismissal of all class plaintiffs who had not filed a verified tort claim at least 60 days before commencement of the suit would make it virtually impossible to proceed with a class tort action against the State." Id. at 88. The court summarized its holding by stating:
[W]hen a tort action against the State is properly initiated by a plaintiff who has timely filed a notice of claim as required by RCW 4.92.100-110, additional plaintiffs later added to the action when it is certified for class treatment need not separately fulfill the claim filing requirement.Id. at 83.
Given the similarity between the tort claim statute at issue inOda and the statutes at issue here, the Oda decision contradicts the City's argument that the claims of all absent class members who failed to file claims for damages with the City must be dismissed. Furthermore, there is no dispute that the named Plaintiffs in this action properly filed claims for damages with the City. As a result, the Court finds that absent class members in this matter are not required to separately fulfill the tort claim filing requirements of RCW 4.96.010-020 or SMC 5.24.005.
B. Claims of Class Members Who Have Settled Claims Against City
Finally, the City has moved to dismiss the claims of certain class members who previously filed and settled claims for tort damages against the City. Plaintiffs agree that these individuals should be excluded from further recovery in this suit. Therefore, the Court grants the City's motion to dismiss the claims of the following class members: (1) Nicholas Bonelli; (2) Vaughn Breaux; (3) Buba Ceesay; (4) Lawrence and Mattie Chasey; (5) Stephan Holmes; (6) Darrell Poston; (7) Broderick Russell; (8) Scott Shabro; (9) Marcia Smith; (10) Bob Summerrise; and (11) Charles White.
III. CONCLUSION
For the foregoing reasons, the City's motion for partial summary judgment (Dkt. # 192) is GRANTED in part and DENIED in part. The Court grants the City's request to dismiss the claims of class members who have settled their claims for damages with the City. The Court denies the City's request to dismiss the claims of class members who failed to file claims for damages with the City.
The clerk is directed to provide copies of this order to all counsel of record.