Barrajas v. Travelers Home and Marine Insurance Company

Filing 22

ORDER GRANTING DEFENDANTS PARTIAL MOTION TO DISMISS. Defendants Rule 12 Partial Motion to Dismiss ECF No. 19 is GRANTED; Plaintiffs IFCA and WLAD claims are DISMISSED. The Clerk shall amend the docket to reflect the spelling of Plaintiffs last name as Barajas and promptly issue a Notice of Scheduling Conference. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

1
2
3
4
5
UNITED STATES DISTRICT COURT
6

EASTERN DISTRICT OF WASHINGTON

7
8

JERUSALEN BARAJAS, a single
man,
Plaintiff,

9

12

ORDER GRANTING DEFENDANT’S
PARTIAL MOTION TO DISMISS

v.

10
11

CASE NO. 2:16-CV-0432-TOR

TRAVELERS HOME AND MARINE
INSURANCE COMPANY, doing
business in Grant County,
Defendant.

13
14
15

BEFORE THE COURT is Defendant’s Rule 12 Partial Motion to Dismiss.

16

ECF No. 19. Plaintiff is represented by Julie A. Anderson. Defendant is

17

represented by Ronald J. Clark. This matter was heard without oral argument on

18

May 15, 2017. The Court has reviewed the motion and record herein, and is fully

19

informed.

20

//

ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 1

1

BACKGROUND
On November 15, 2016, Plaintiff Jerusalen Barajas1 (“Plaintiff”) filed suit

2
3

against Defendant Travelers Home and Marine Insurance Company (“Defendant”)

4

in Chelan County Superior Court. ECF No. 1-2. Pursuant to 28 U.S.C. §§ 1441,

5

1446(b), Defendant removed the action to this Court invoking diversity jurisdiction

6

under 28 U.S.C. § 1332. ECF No. 1.

7

On March 1, 2017, the Court entered an Order dismissing Plaintiff’s claims

8

that Defendant violated the Washington Insurance Fair Conduct Act (“IFCA”)

9

(RCW 48.30.015) and the Washington Law Against Discrimination (“WLAD”)

10

(RCW 49.60 et seq.). ECF Nos. 12, 1-2 at ¶¶ 3.7, 3.9-3.10. Notwithstanding, the

11

Court granted Plaintiff “leave to file an amended complaint (with Plaintiff’s name

12

spelled correctly) within thirty (30) days.” ECF No. 12 at 13.

13
14
15

1

Despite direction from the Court to provide Plaintiff’s correctly spelled

16

name, ECF No. 12 at 13, Plaintiff’s counsel continues to spell Plaintiff’s name

17

wrong, ECF Nos. 16, 18. The Court observes that Plaintiff has signed his name

18

“Barajas”, ECF No. 1-2 at 5, and the underlying contract of insurance is listed in

19

the name “Barajas”, ECF Nos. 7-3, 19 at 3 n.6. The Court will use that spelling

20

and will direct the Clerk to amend the docket accordingly.

ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 2

1

Plaintiff filed an Amended Complaint on March 17, 2017, and again on

2

March 28, 2017. ECF Nos. 16, 18. Plaintiff also filed a Notice of Washington

3

State Constitutional Question Related to RCW 48.30.015 on March 8, 2017, see

4

ECF No. 14, which the Court certified to the Washington Attorney General for

5

consideration on March 9, 2017, see ECF No. 15. Thereafter, the Court denied

6

Plaintiff’s request for reconsideration of the Court’s Order Granting Defendant’s

7

Partial Motion to Dismiss. See ECF No. 21.

8
9

For the second time, Defendant moves to dismiss Plaintiff’s claims (1) under
IFCA for Plaintiff’s continued failure to provide written notice as required by

10

RCW 48.30.015(8)(a), and (2) under the WLAD for failing to state a claim upon

11

which relief may be granted. See ECF Nos. 6, 19, 20 at ¶ 3.

12

Plaintiff has failed to respond to the motion.

13

In response to Defendant’s first motion to dismiss, the Court admonished

14

Plaintiff’s counsel for the late filing of Plaintiff’s memorandum in response to

15

Defendant’s dismissal motion, in violation of Local Rule (“LR”) 7.1(b)(2)(B), and

16

failure to seek permission to submit the late filing. See ECF No. 6 at n.3. The

17

Court cautioned Plaintiff that failure to comply with the Local Rules or timely

18

respond, could result in adverse action by the Court. Id. With respect to the

19

instant motion, Plaintiff was required to file a responsive memorandum by May 4,

20

ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 3

1

2017. See LR 7.1(b). Plaintiff has failed to respond or seek permission to file a

2

late submission.

3

DISCUSSION

4

For the reasons previously stated, ECF No. 12, the Court finds that because

5

Plaintiff still has not substantially complied with the statutory notice requirement,

6

his statutory IFCA claim is not properly before the Court. Accordingly, the Court

7

dismisses Plaintiff’s IFCA claim.

8
9

Likewise, for the reasons previously stated, ECF No. 12, Plaintiff’s WLAD
claim is dismissed. Plaintiff makes only conclusory allegations of unequal

10

treatment, while the WLAD requires a showing of unequal treatment and that the

11

unequal treatment was motivated by race.

12

Pursuant to Local Rule 7.1(b)(2)(B), an opposing party has 21 days to file a

13

response to a dispositive motion. The failure to timely do so may be considered by

14

the Court as “consent to the entry of an Order adverse to the [defaulting] party[.]”

15

LR 7.1(d).

16

ACCORDINGLY, IT IS HEREBY ORDERED:

17
18
19
20

1. The Clerk shall amend the docket to reflect the spelling of Plaintiff’s last
name as “Barajas.”
2. Defendant’s Rule 12 Partial Motion to Dismiss (ECF No. 19) is
GRANTED; Plaintiff’s IFCA and WLAD claims are DISMISSED.

ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 4

1

3. The Clerk shall promptly issue a Notice of Scheduling Conference.

2

The District Court Executive is directed to enter this Order and furnish

3
4

copies to the parties.
DATED: May 15, 2017.

5
6

THOMAS O. RICE
Chief United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20

ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 5