Busche v. URS Energy and Construction Inc et al

Filing 65

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STAY; DENYING IN PART AND DENYING AS MOOT IN PART PLAINTIFF'S SECOND MOTION FOR PROTECTIVE ORDER; AND RESETTING THE HEARING ON DEFENDANTS' JOINT MOTION TO STRIKE JURY DEM AND; granting in part and denying in part 44 Motion to Stay - THIS MATTER IS stayed UNTIL 5/1/14; denying in part and denying as moot in part pltf's 25 Motion for Protective Order; terminating at this time 28 Joint Motion to Strike Jury Demand; terminating at this time dfts' 33 Motion to Dismiss for Lack of Jurisdiction; terminating dfts' 35 Motion to Dismiss. Signed by Senior Judge Edward F. Shea. (LE, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Plaintiff,

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v.

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CASE NO. CV-13-5016-EFS

DONNA BUSCHE, an individual,

URS ENERGY AND CONSTRUCTION, INC.,
an Ohio corporation, and BECHTEL
NATIONAL, INC., a Nevada
corporation,

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO STAY; DENYING IN PART
AND DENYING AS MOOT IN PART
PLAINTIFF’S SECOND MOTION FOR
PROTECTIVE ORDER; AND RESETTING
THE HEARING ON DEFENDANTS’ JOINT
MOTION TO STRIKE JURY DEMAND

Defendants.
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A hearing occurred in the above-captioned case on February 10,

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2014, in Richland.

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John Sheridan.

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by Kevin Baumgardner and Joshua Preece, and Defendant URS Energy &

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Construction, Inc. (URS) was represented by Timothy Lawlor and Matthew

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Daley.

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44; 2) Mrs. Busche’s Motion for Protective Order, ECF No. 25; and 3)

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Defendants’ Joint Motion to Strike Jury Demand, ECF No. 28.

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reviewing the record and relevant authority and hearing from counsel,

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the Court is fully informed.

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the Court’s oral rulings granting in part and denying in part Mrs.

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Busche’s motion to stay; denying in part and denying as moot in part

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Mrs. Busche’s Motion for Protective Order; and terming Defendants’

Plaintiff Donna Busche was present, represented by

Defendant Bechtel National, Inc. (BNI) was represented

Before the Court were 1) Mrs. Busche’s Motion to Stay, ECF No.

ORDER - 1

After

This Order supplements and memorializes

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Joint Motion to Strike Jury Demand, as well as Defendants’ motions to

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dismiss, ECF Nos. 33 & 35, at this time.

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A.

Mrs. Busche’s Motion to Stay
Mrs.

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Busche

seeks

a

stay

of

this

litigation

until

at

least

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November 14, 2014, so that her 2013-based whistleblower retaliation

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claims (“2013-based claims”) against URS and BNI can be addressed by

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the

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administrative

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lawsuit.

Department

If

of

Labor

complaint,
the

DOL

(DOL),
prior

does

through
to

not

her

them

address

November

being
her

13,

addressed

2013-based

2013

in

this

claims

by

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November 13, 2014—within one year of her administrative complaint,

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Mrs. Busche will opt out of the DOL administrative proceeding.

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Busche believes that her 2013-based claims relate to her 2010/11-based

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retaliation claims, which she presented to the DOL in an earlier

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administrative complaint and therefore it is unnecessary for her to

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present her 2013-based claims to the DOL.

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Defendants’

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failure to exhaust administrative remedies, ECF Nos. 33 & 35, Mrs.

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Busche seeks permission to stay this lawsuit until her 2013-based

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claims

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strongly oppose a stay, contending a stay reduces Defendants’ ability

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to have the allegations in this lawsuit resolved in a timely manner

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and that this is simply another tactic employed by Mrs. Busche to

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stall providing discovery to Defendants.

have

pending

been

motions

before

the

to

dismiss

DOL

for

her

one

Mrs.

However, in light
2013-based

year.

Both

claims

of
for

Defendants

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1.

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The district court “has broad discretion to stay proceedings as

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Standard

an incident to its power to control its own docket.”

ORDER - 2

Clinton v.

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Jones, 520 U.S. 681, 706-07 (1997) (citing Landis v. N. Am. Co., 299

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U.S. 248 (1936)).

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“the competing interests which will be affected by the granting or

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refusal to grant a stay must be weighed.”

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398 F.3d 1098, 1110 (9th Cir. 2005) (citing CMAX Inc. v. Hall, 300

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F.2d 265, 268 (9th Cir. 1962)).

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possible damage which may result from a stay, 2) the hardship or

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inequity which a party may suffer if a stay is not entered, and 3)

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whether a stay simplifies or complicates issues, proof, and questions
Id.

In determining whether to grant a motion to stay,

Lockyer v. Mirant Corp.,

These interests include: 1) the

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of law.

The moving party bears the burden of proving that a stay

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is warranted and must “make out a clear case of hardship or inequity

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in being required to go forward.”

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299 U.S. at 255.

Clinton, 520 U.S. at 708; Landis,

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2.

Analysis

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After balancing the applicable interests, the Court determines a

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limited stay is warranted and stays the lawsuit until May 1, 2014.

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stay

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approximately

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administrative complaint.

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notice with the Court, advising what action, if any, has been taken on

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her administrative complaint by the DOL.

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better informed as to whether the DOL intends to address Mrs. Busche’s

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recent

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should proceed in this lawsuit regarding the 2013-based claims.

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limited stay also provides the Ninth Circuit with additional time to

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rule on whether a claim under the Energy Reorganization Act (ERA), 42

until

May

1,
six

2014,
months

administrative

ORDER - 3

provides
to

the

take

government
action

on

(the

DOL)

Mrs.

A

with

Busche’s

On May 1, 2014, Mrs. Busche is to file a

complaint

and

The Court will then be

whether

discovery

and

motions
This

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U.S.C. § 5851(b)(4), may be tried to a jury: an issue the Ninth

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Circuit is to address in Tamosaitis v. URS Inc., No. 12-35924 (9th

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Cir. filed Nov. 9, 2011).

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tried to a jury may well impact the discovery process and the parties’

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pretrial preparations.

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stay

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suffer from this limited stay is mitigated by the fact the Court must

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reset the March 2, 2015 trial, due to its own calendar.

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review of Mrs. Busche’s May 1, 2014 notice, the Court will set a

is

necessary.

Whether Mrs. Busche’s ERA claims can be

Accordingly, the Court determines this limited
Any

potential

prejudice

that

Defendants

will

Following

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hearing to discuss the entry of a new scheduling order.1

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than May 8, 2014, Mrs. Busche is to be prepared to disclose the

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discoverable documents and information requested by Defendants.

No later

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Because this lawsuit is stayed until May 1, 2014, the Court

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directs the Clerk’s Office to term (for CM-ECF purposes) Defendants’

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motions to dismiss, ECF No. 33 & 35, and Defendants’ Motion to Strike

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Jury

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Defendants wish to revive a particular motion, they may do so by

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filing a Notice to Revive that Previously-Filed Motion, and in that

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Notice list each of the court filings related to that motion, so as to

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permit the Clerk’s Office to administratively revive the motion.

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B.

ECF

No.

28,

at

this

time.

If

the

stay

Mrs. Busche’s Motion for Protective Order

on October 9, 2013.

Following the filing of Ms. Busche’s motion for

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following

Mrs. Busche filed this motion for protective order, ECF No. 25,

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Demand,

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A possible new trial date is April 27, 2015.

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ORDER - 4

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protective order, the Court entered an Order on October 15, 2013, ECF

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No. 26, addressing an earlier filed motion for protective order by

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Mrs. Busche.

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Order

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Accordingly, remaining before the Court is whether a protective order

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should issue as to URS’s Request for Production (RFP) Nos. 6, 8, 15,

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and 18 and Interrogatory No. 7, and BNI’s Interrogatory Nos. 1 and 11

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and RFP Nos. 1 and 3.

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categories:

Mrs. Busche recognizes the Court’s October 15, 2013

moots

part

of

her

instant

motion

for

protective

order.

These discovery requests are divided into four

medical, tax returns, Defense Nuclear Facilities Safety

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Board (DNFSB), and general.

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recognizing that a civil litigant may seek discovery of relevant, non-

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privileged information.
First,

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as

to

The Court addresses each in turn, while

Fed. R. Civ. P. 26(b)(1).

Mrs.

Busche’s

requested

medical

records,

Mrs.

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Busche clarifies that she only seeks garden-variety emotional distress

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damages.

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withdraws its Interrogatory No. 7 and RFP No. 15, and BNI withdraws

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its Interrogatory No. 11.

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as moot in this regard.

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35 (E.D.N.Y. 2009) (recognizing that garden-variety emotional distress

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claims are generally only supported by the plaintiff’s testimony).

Therefore,

based

on

Mrs.

Busche’s

clarification,

URS

Accordingly, Mrs. Busche’s motion is denied
See Olsen v. Cnty. of Nassau, 615 F. Supp. 2d

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Second, Mrs. Busche advised that her damages claim (as of the

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date of the hearing) did not include a request for front-pay damages

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as

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opportunities.

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18.

she

was

still

employed

and

had

not

been

denied

promotion

Based on this representation, URS withdrew its RFP No.

Therefore, Mrs. Busche’s motion is denied as moot in this regard.

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ORDER - 5

The third category is URS’s DNFSB-related discovery request: URS

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RFP No. 8, which states:
Produce all documents related to or pertaining to any
testimony that you offered before the DNFSB, including but
not limited to transcripts of both public and closed
testimony; video/audio recordings of both public and closed
testimony; notes/outlines/scripts prepared in advance of
your testimony; and correspondence with members of/counsel
for the DNFSB.

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ECF No. 25-3 at 21.

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typically treated as confidential.

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the

regulatory

language

purpose,
a

Court

closed-DNFSB

rules

hearing

that

an

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expects that her testimony be kept confidential.

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nature of this testimony is not lessened when the individual receives

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an electronic transcript of her testimony in order to review the

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transcript for accuracy.

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the transcript to her employer’s computer system and does not take

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steps to retain the confidential nature of the transcript of her

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testimony, the employee waives her right to claim that her testimony

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is confidential.

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her right to claim that her DNFSB testimony during a closed hearing is

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confidential given that she saved the transcript to her employer’s

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server

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Further, Mrs. Busche waived the confidential nature of her closed-

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DNFSB-hearing testimony by placing this testimony at issue in this

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lawsuit.

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hearing testimony, Busche testified that she was next in line for

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removal from the WTP after Dr. Tamosaitis, because of her refusal to

ORDER - 6

during

the

Based on

individual

did

testifies

and

See 10 C.F.R. § 1704.5.

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and

who

Testimony during a closed-DNFSB hearing is

reasonably

The confidential

However, when the witness saves a copy of

Mrs. Busche appropriately recognizes that she waived

not

take

steps

to

preserve

its

confidentiality.

See Complaint, ECF No. 1 ¶ 2.44 (“In the Busche closed

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yield to technically unsound positions on matters affecting safety

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advanced by DOE, URS, and BNI.”).

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Mrs. Busche must produce her testimony during the at-issue closed-

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DNFSB hearing(s).

For these reasons, the Court finds

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In addition, the Court determines Mrs. Busche must produce her

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correspondence with members of/counsel for DNFSB. The confidentiality

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provided to closed-DNFSB-hearing testimony by 10 C.F.R. § 1704.5 does

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not extend to communications to DNFSB members or staff.2

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Mrs. Busche must respond to URS RFP No. 8.

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Accordingly,

Her motion for protective

order is denied in this regard.
As to the last general category, the Court denies Mrs. Busche’s

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request

for

a

protective

order

as

to

URS

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Interrogatory No. 1 and RFP Nos. 1 and 13.3

RFP

No.

6,

and

BNI

These requests seek

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Assistant

United

States

Attorney

Pamela

DeRusha

participated

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telephonically in the hearing.

Ms. DeRusha advised that DNFSB

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does not consider § 1704.5’s confidentiality provisions to apply

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to communications outside of closed-DNFSB hearings.
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These discovery requests state:

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[BNI] INTERROGATORY NO. 1: With respect to your allegation
in paragraph 3.2 of the Complaint that "Plaintiff states a
claim against . . . BNI for violation of the whistleblower
provisions of the ERA, Section 211 of the Energy Act [sic]
of 1974, as amended, 42 U.S.C. § 5851," please identify as
follows:
a.
All alleged adverse employment actions, acts of
retaliation, and/or unlawful actions by BNI that
comprise this claim;
b.
All facts on which these allegations and this
claim are based; and
c.
All individuals with knowledge of these facts.

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ORDER - 7

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information relevant to the claims asserted by Mrs. Busche in this

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lawsuit.

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how they are unduly burdensome.

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these requests seek privileged or otherwise protected information or

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documents, she is to set such forth in a privilege log or otherwise

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seek relief from this Court.

They are not overbroad, and Mrs. Busche failed to identify
If Mrs. Busche is concerned that

In summary, the Court denies as moot in part and denies in part

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Mrs. Busche’s motion for protective order.

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E.

Conclusion

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For the above-given reasons, IT IS HEREBY ORDERED:

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1.

PART and DENIED IN PART.

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Mrs. Busche’s Motion to Stay, ECF No. 44, is GRANTED IN

2.

This lawsuit is STAYED until May 1, 2014.

On May 1, 2014,

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Mrs. Busche shall file a notice advising the Court as to

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the status of the DOL proceeding and any other matters

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relevant to this lawsuit.

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3.

Mrs.

Busche’s

Defendants’

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Motion

First

for

Protective

Interrogatories

and

Order

Regarding

Requests

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25

[BNI] REQUEST FOR PRODUCTION NO. 1: Please produce all
documents relating to the claim described in Interrogatory
No. 1 above, including all documents relating to your
answer to Interrogatory No. 1 above.
[BNI] REQUEST FOR PRODUCTION NO. 13: Please produce all
written and/or electronic communications between Plaintiff
and any other individual(s) (excluding Plaintiff's legal
counsel) regarding Plaintiff's claim in this lawsuit and/or
the facts relating to Plaintiff's claim in this lawsuit.

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ORDER - 8

for

1

Production to Plaintiff, ECF No. 25, is DENIED IN PART (URS

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RFP Nos. 6 & 8; and BNI Interrogatory No. 1 and RFP Nos. 1

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and 13) and DENIED AS MOOT IN PART (remainder).

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4.

Defendants’ Joint Motion to Strike Jury Demand, ECF No. 28,

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and Defendants’ motions to dismiss, ECF Nos. 33 & 35, are

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TERMED at this time.

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IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

21st

day of February 2014

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s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2013\5016.stay.compel.lc1.docx

ORDER - 9