Barrajas v. Travelers Home and Marine Insurance Company
Filing
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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)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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JERUSALEN BARAJAS, a single
man,
Plaintiff,
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ORDER GRANTING DEFENDANT’S
PARTIAL MOTION TO DISMISS
v.
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CASE NO. 2:16-CV-0432-TOR
TRAVELERS HOME AND MARINE
INSURANCE COMPANY, doing
business in Grant County,
Defendant.
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BEFORE THE COURT is Defendant’s Rule 12 Partial Motion to Dismiss.
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ECF No. 19. Plaintiff is represented by Julie A. Anderson. Defendant is
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represented by Ronald J. Clark. This matter was heard without oral argument on
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May 15, 2017. The Court has reviewed the motion and record herein, and is fully
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informed.
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//
ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 1
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BACKGROUND
On November 15, 2016, Plaintiff Jerusalen Barajas1 (“Plaintiff”) filed suit
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against Defendant Travelers Home and Marine Insurance Company (“Defendant”)
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in Chelan County Superior Court. ECF No. 1-2. Pursuant to 28 U.S.C. §§ 1441,
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1446(b), Defendant removed the action to this Court invoking diversity jurisdiction
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under 28 U.S.C. § 1332. ECF No. 1.
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On March 1, 2017, the Court entered an Order dismissing Plaintiff’s claims
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that Defendant violated the Washington Insurance Fair Conduct Act (“IFCA”)
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(RCW 48.30.015) and the Washington Law Against Discrimination (“WLAD”)
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(RCW 49.60 et seq.). ECF Nos. 12, 1-2 at ¶¶ 3.7, 3.9-3.10. Notwithstanding, the
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Court granted Plaintiff “leave to file an amended complaint (with Plaintiff’s name
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spelled correctly) within thirty (30) days.” ECF No. 12 at 13.
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Despite direction from the Court to provide Plaintiff’s correctly spelled
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name, ECF No. 12 at 13, Plaintiff’s counsel continues to spell Plaintiff’s name
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wrong, ECF Nos. 16, 18. The Court observes that Plaintiff has signed his name
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“Barajas”, ECF No. 1-2 at 5, and the underlying contract of insurance is listed in
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the name “Barajas”, ECF Nos. 7-3, 19 at 3 n.6. The Court will use that spelling
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and will direct the Clerk to amend the docket accordingly.
ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 2
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Plaintiff filed an Amended Complaint on March 17, 2017, and again on
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March 28, 2017. ECF Nos. 16, 18. Plaintiff also filed a Notice of Washington
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State Constitutional Question Related to RCW 48.30.015 on March 8, 2017, see
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ECF No. 14, which the Court certified to the Washington Attorney General for
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consideration on March 9, 2017, see ECF No. 15. Thereafter, the Court denied
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Plaintiff’s request for reconsideration of the Court’s Order Granting Defendant’s
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Partial Motion to Dismiss. See ECF No. 21.
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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
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RCW 48.30.015(8)(a), and (2) under the WLAD for failing to state a claim upon
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which relief may be granted. See ECF Nos. 6, 19, 20 at ¶ 3.
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Plaintiff has failed to respond to the motion.
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In response to Defendant’s first motion to dismiss, the Court admonished
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Plaintiff’s counsel for the late filing of Plaintiff’s memorandum in response to
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Defendant’s dismissal motion, in violation of Local Rule (“LR”) 7.1(b)(2)(B), and
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failure to seek permission to submit the late filing. See ECF No. 6 at n.3. The
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Court cautioned Plaintiff that failure to comply with the Local Rules or timely
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respond, could result in adverse action by the Court. Id. With respect to the
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instant motion, Plaintiff was required to file a responsive memorandum by May 4,
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ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 3
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2017. See LR 7.1(b). Plaintiff has failed to respond or seek permission to file a
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late submission.
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DISCUSSION
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For the reasons previously stated, ECF No. 12, the Court finds that because
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Plaintiff still has not substantially complied with the statutory notice requirement,
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his statutory IFCA claim is not properly before the Court. Accordingly, the Court
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dismisses Plaintiff’s IFCA claim.
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Likewise, for the reasons previously stated, ECF No. 12, Plaintiff’s WLAD
claim is dismissed. Plaintiff makes only conclusory allegations of unequal
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treatment, while the WLAD requires a showing of unequal treatment and that the
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unequal treatment was motivated by race.
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Pursuant to Local Rule 7.1(b)(2)(B), an opposing party has 21 days to file a
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response to a dispositive motion. The failure to timely do so may be considered by
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the Court as “consent to the entry of an Order adverse to the [defaulting] party[.]”
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LR 7.1(d).
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ACCORDINGLY, IT IS HEREBY ORDERED:
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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
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3. The Clerk shall promptly issue a Notice of Scheduling Conference.
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The District Court Executive is directed to enter this Order and furnish
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copies to the parties.
DATED: May 15, 2017.
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THOMAS O. RICE
Chief United States District Judge
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ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS ~ 5
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