Mason v. Washington State et al
ORDER granting STP Defendants' 21 Motion to Dismiss and State Defendants' joinder, Dkt. 30 ; Plaintiff may file an amended complaint within thirty (30) days from the date of this Order, signed by Judge Thomas S. Zilly. (SWT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
ELTON MASON, an individual, dba
WASHINGTON STATE TRUCKING,
a sole proprietorship,
WASHINGTON STATE, a state
governmental entity, WASHINGTON
STATE DEPARTMENT OF
TRANSPORTATION, a political
subdivision governmental entity; LYNN
PETERSON, in her official and individual
capacities, LINEA LAIRD, in her official
and individual capacities, OFFICE OF
MINORITY WOMEN BUSINESS
ENTERPRISES, a subdivision
governmental entity, SEATTLE TUNNEL
PARTNERS, a Joint Venture Dragados,
U.S.A., Tutor Perini Corporation, CHRIS
DIXON, in his official and individual
capacities, and RUSSELL
STREADBECK in his official and
THIS MATTER comes before the Court on defendants Seattle Tunnel Partners
(“STP”), Chris Dixon, and Russell Streadbeck’s (collectively the “STP Defendants”)
motion to dismiss, docket no. 21, and defendants Washington State, Washington State
Department of Transportation (“WSDOT”), the Office of Minority Women Business
ORDER - 1
1 Enterprises (“OMWBE”), Lynn Peterson, and Linea Laird’s (collectively, the “State
2 Defendants”) joinder in the STP Defendants’ motion to dismiss,1 docket no. 23. Having
3 reviewed the motion and all relevant filings, the Court enters the following Order.
The following facts are set forth as alleged in the Complaint and the exhibits
6 attached thereto.
A. The Parties
Plaintiff Elton Mason is an African American male and the sole owner and
9 proprietor of Washington State Trucking (“WST”), a construction company specializing
10 in trucking and excavation services and certified as a Disadvantaged Business Enterprise
11 (“DBE”). Complaint, docket no. 1, ¶¶ 3.1 – 3.2. Defendant WSDOT is a state entity and
12 political subdivision of the State of Washington responsible for overseeing highway
13 construction projects. Id. at ¶ 3.6. Defendant Lynn Peterson is the Secretary of WSDOT
14 and defendant Linea Laird is the Construction Division Head and Chief Engineer. Id. at
15 ¶ 3.7 – 3.8. Defendant OMWBE is local state entity tasked with certifying small
16 businesses owned and controlled by minorities, women, and other socially or
17 economically disadvantaged individuals as DBEs. Id. at ¶ 3.9. Defendant STP is the
Plaintiff argues that the Court should strike or deny the State Defendants’ joinder in STP’s motion to
dismiss because they have already filed an answer to plaintiff’s complaint, docket no. 19. The Court
20 declines to do so. Although the State Defendant’s joinder in the STP Defendant’s 12(b)(6) motion to
dismiss should have been titled as a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c), the
21 applicable standards are functionally identical, see Dworkin v. Hustler Magazine Inc., 867 F.2d 1188,
1192 (9th Cir. 1989), and thus, the State Defendants’ arguments that plaintiff has failed to state a claim
for relief are applicable regardless of the title of the State Defendants’ motion. Accordingly, the Court
22 construes the State Defendants’ joinder in the STP Defendants’ motion as a motion for judgment on the
pleadings under Rule 12(c).
ORDER - 2
1 Design-Build contractor for the Alaskan Way Viaduct project. Id. at ¶ 3.10. STP is a
2 joint-venture between Dragados U.S.A. and Tutor Perini Corporation. Id. Defendant
3 Chris Dixon is the Project Manager of STP in Seattle, Washington and defendant Russell
4 Streadbeck is STP’s Commercial Manager. Id. at 3.11 – 3.12.
B. The Alaskan Way Viaduct Project
The Alaskan Way Viaduct project is a federally funded project to build a new
7 State Route 99 corridor through Seattle. Complaint, docket no. 1, Ex. 1 at 6. WSDOT is
8 the owner of the project, id., and STP was the contractor awarded the work, Complaint,
9 ¶ 3.10.
The prime contract for the Alaskan Way Viaduct project establishes a DBE goal of
11 8% of the compensation payable to the Design-Builder. Complaint, ¶¶ 1.12, 4.45.
12 Because the project involves large amounts of excavation and dirt removal, STP decided
13 it would achieve a portion of the DBE goal through hauling services. Complaint, ¶ 4.47.
14 Through a request for proposal process, STP selected Grady Excavating, Inc. (“Grady
15 Excavating”), a female-owned, certified DBE construction firm which had submitted the
16 lowest bid to perform the hauling work. Complaint, Ex. 1 at ECF p. 12. On July 6, 2012,
17 Grady Excavating was decertified as a DBE. Complaint, ¶ 4.50. After learning of Grady
18 Excavating’s decertification, STP began a new request for proposal process that imposed
19 additional requirements on bidders that were more burdensome than those imposed
20 during the initial request for proposal, including requiring firms to own at least twenty
21 trucks and to disclose certain personal and business financial information. Complaint,
22 ¶¶ 4.52, 4.54.
ORDER - 3
On August 12, 2012, STP met with several of the bidding firms to inform them
2 that none of the bids had been successful and that STP intended to continue using Grady
3 Excavating to perform the trucking work despite its decertification. Complaint, Ex. 1 at
4 14. OMA Construction, one of the certified DBEs in attendance at that meeting, began
5 discussions with STP about why its bid had not been accepted given that it was the lowest
6 bidder among the firms seeking to replace Grady Excavating. Id. After OMA agreed to
7 lower its bid further, STP ultimately awarded OMA Construction the contract to replace
8 Grady Excavating. Id.
C. The Federal Highway Administration’s Investigation
On August 20, 2012, plaintiff filed a complaint with the Federal Highway
11 Administration alleging that STP failed to use adequate good faith efforts to find another
12 DBE to substitute for Grady Excavating and that WSDOT failed to oversee and
13 adequately monitor STP’s efforts to achieve the 8% DBE goal. Complaint, Ex. 1 at 7.
14 On November 1, 2013, the Federal Highway Administration issued its report concluding
15 that the procedures STP followed in replacing Grady Excavating did not conform to
16 “good faith efforts requirements” and that WSDOT failed to oversee and adequately
17 monitor STP’s efforts to achieve the DBE goal. Id. at 17, 24.
On January 13, 2014, as a result of STP’s failures to put forth good faith efforts to
19 meet the prime contract’s DBE goal, WSDOT found that STP was in “breach of contract
20 with WSDOT.” Complaint, ¶ 5.7. Sometime thereafter, WSDOT “lifted the breach from
21 Defendant STP.” Id. at ¶ 5.8. On March 20, 2014, the Federal Highway Administration
22 and WSDOT entered into a Conciliation Agreement addressing the findings in the
ORDER - 4
1 Highway Administration’s report. Complaint, Ex. 3 at 3.2 Under the terms of the
2 Conciliation Agreement, WSDOT agreed to undertake more intensive oversight of STP’s
3 efforts to meet the 8% DBE goal and to provide regular monthly progress reports to the
4 Federal Highway Administration; hire a DBE Program Administrator and a DBE
5 Program Coordinator; and take all appropriate actions against STP in the event the
6 company failed to resolve the DBE compliance issues identified in the Highway
7 Administration’s report. Id. at 6-8.
Plaintiff filed the instant lawsuit on February 7, 2017, alleging eleven separate
9 causes of action under both State and Federal law relating to various aspects of the
10 Alaskan Way Viaduct project.
A. Legal Standard
Although a complaint challenged by a Rule 12(b)(6) motion to dismiss need not
14 provide detailed factual allegations, it must offer “more than labels and conclusions” and
15 contain more than a “formulaic recitation of the elements of a cause of action.” Bell Atl.
16 Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must indicate more than
17 mere speculation of a right to relief. Id. A complaint may be lacking for one of two
18 reasons: (1) the absence of a cognizable legal theory, or (2) insufficient facts under a
19 cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th
20 Cir. 1984). In ruling on a motion to dismiss, the Court must assume the truth of the
Plaintiff alleges that the Conciliation Agreement was between WSDOT and STP, but the content of the
22 agreement makes clear that STP was not a party to the conciliation agreement between the Federal
Highway Administration and WSDOT. Complaint, Ex. 3
ORDER - 5
1 plaintiff’s allegations and draw all reasonable inferences in the plaintiff’s favor. Usher v.
2 City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the Court need not
3 accept as true allegations which contradict documents that are referenced in the complaint
4 or that are properly subject to judicial notice. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d
5 580, 588 (9th Cir. 2008). The question for the Court is whether plaintiff has alleged
6 “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
7 570. The inquiry in a motion under Rule 12(c) is “functionally identical” to a motion
8 made under Rule 12(b)(6). See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192
9 (9th Cir. 1989).
B. Plaintiff’s Claims
The Court notes at the outset, that plaintiff’s forty-one page complaint is
12 ambiguously pleaded, making it exceedingly difficult to determine which factual
13 allegations relate to which of plaintiff’s eleven causes of action. The Court has made its
14 best effort to make sense of plaintiff’s allegations and to address them in the context of
15 the claims to which they relate.
1. First Cause of Action - Title VI Discrimination, 42 U.S.C. § 2000d
(Against STP, Washington State, WSDOT, and OMWBE)
42 U.S.C. § 2000d provides that “[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance.” 42 U.S.C. § 2000d. A private individual may sue to
enforce Title VI only in instances of intentional discrimination. Gamble v. Pac. Nw.
ORDER - 6
1 Reg’l Council of Carpenters, No. C14-455 RSM, 2015 WL 3442561, at *5 (W.D. Wash.
2 May 28, 2015) (citing Alexander v. Sandoval, 532 U.S. 275, 281 (2001)).
Plaintiff’s complaint appears to base his Title VI discrimination claim on
4 allegations that he was the victim of intentional racial discrimination when: (1) STP
5 initially awarded a contract to Grady Excavating, Inc., a female-owned, certified DBE
6 construction firm, (the “Initial Contract”) Complaint, ¶ 4.483; and (2) STP imposed a
7 burdensome request for proposal process and ultimately selected OMA Construction,
8 another minority-owned DBE, to assume the remainder of Grady Excavating’s work on
9 the project, (the “Replacement Contract”) id. at ¶ 4.52. Although the Complaint indicates
10 that plaintiff’s discrimination claim is against defendants STP, Washington State,
11 WSDOT and OMWBE, plaintiff’s opposition concedes that his Title VI discrimination
12 claim relates only to “STP’s failure to award [him] contracts” because he is an African
13 American. Pl.’s Opp’n, docket no. 26 at 7-8.
Plaintiff’s allegations that STP discriminated against him with regard to the Initial
15 and Replacement Contracts are untimely. Claims under § 2000d are subject to
16 Washington’s three-year statute of limitations for personal injury actions. See Taylor v.
17 Regents of Univ. of Cal., 993 F.2d 710, 711-12 (9th Cir. 1993) (holding that the state
18 statute of limitations for personal injury actions apply to § 2000d claims); see also
19 RCW 4.16.080(2) (action for “injury to the person” subject to a three year statute of
20 limitations). Although state law determines the length of the limitations period for a civil
Although the Complaint does not allege when STP awarded Grady Excavating the trucking work, it is
22 clear from plaintiff’s allegations that it occurred sometime before July 2012 when Grady Excavating was
decertified as a DBE. See Complaint, ¶¶ 4.48 – 4.51.
ORDER - 7
1 rights claim, federal law determines when the claim accrues. See Knox v. Davis, 260
2 F.3d 1009, 1013 (9th Cir. 2001). Under federal law, a claim accrues when the plaintiff
3 “knows or has reason to know of the injury which is the basis of the action.” TwoRivers
4 v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999).
Here, although plaintiff was clearly aware of the injury that forms the basis of his
6 allegations against STP by at least August 20, 2012, when he filed his complaint with the
7 Federal Highway Administration, see Complaint, Ex. 1 at 7, plaintiff did not file this
8 lawsuit until February 7, 2017, well outside the applicable three-year limitations period.
9 Plaintiff acknowledges that his allegations of discrimination took place outside the
10 limitations period, but argues nonetheless that his claim is timely because defendants’
11 actions were “continuing violations.”4
“To establish a continuing violation a plaintiff must show a series of related acts,
13 one or more of which falls within the limitations period, or the maintenance of a
14 discriminatory system both before and during the limitations period.” Green v. Los
15 Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir. 1989).
16 Plaintiff relies on the Federal Highway Administration’s November 1, 2013, report,
17 Complaint, Ex. 1, and the numerous complaints plaintiff filed with various State and
18 Federal agencies, id. at ¶ 5.4, to support his invocation of the continuing violations
19 doctrine. As the STP Defendants correctly point out, however, even taking inferences in
Plaintiff cites no authority for the proposition that the continuing violation doctrine applies to claims
22 under 42 U.S.C. § 2000d. For the purposes of this motion, however, the Court assumes, without deciding,
that the continuing violation doctrine does apply to such claims.
ORDER - 8
1 plaintiff’s favor, neither the Federal Highway Administration’s report,5 nor the mere fact
2 that plaintiff filed complaints with State and Federal agencies, substantiate his purely
3 conclusory allegations of ongoing discrimination during the limitations period.
4 Moreover, plaintiff’s allegations regarding STP’s refusals to award the Initial and
5 Replacement Contracts to plaintiff constitute discrete acts of discrimination to which the
6 continuing violations doctrine does not apply. See National R.R. Passenger Corp. v.
7 Morgan, 536 U.S. 101, 114 (2002) (holding that discrete discriminatory acts are not
8 actionable if time barred, even when they are related to acts that are timely alleged); see
9 also Chinoy v. Pennsylvania State University, No. 11-CV-01263, 2012 WL 727965, at *5
10 (M.D. Pa. March 6, 2012). Plaintiff’s allegations that STP violated § 2000d in
11 connection with the Initial and Replacement Contracts are therefore time-barred.
12 Because plaintiff’s allegations against STP are time barred, and in light of plaintiff’s
13 concession that his Title VI discrimination claim relates only to STP’s conduct, plaintiff’s
14 first cause of action for Title VI discrimination is DISMISSED with prejudice.
2. Second Cause of Action, Title VI Retaliation, 42 U.S.C. § 2000d (Against
STP, Washington State, WSDOT, and OMWBE)
A claim for retaliation under 42 U.S.C. § 2000d requires a plaintiff to allege facts
sufficient to show: (1) the plaintiff engaged in protected activity of which the defendant
was aware; (2) the defendant took a material adverse action against the plaintiff; and (3) a
causal connection exists between the plaintiff’s protected activity and the defendant’s
The Highway Administration’s report relates only to conduct that occurred outside the limitations period
22 and, contrary to plaintiff’s representations, does not find that STP intentionally discriminated against him.
See Complaint, Ex. 1.
ORDER - 9
1 adverse action. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (reciting the
2 elements of a Title VII retaliation claim); Peters v. Jenny, 327 F3.d 307, 320 (4th Cir.
3 2003) (applying the elements of a Title VII retaliation claim to a Title VI claim). An
4 adverse action is one that would deter a reasonable person from bringing or supporting a
5 charge of discrimination. Ray, 217 F.3d at 1242-43.
Plaintiff alleges that he was subject to retaliation for filing complaints with various
7 State and Federal agencies. Specifically, plaintiff appears to base his retaliation claim on
8 three allegations: (1) that STP retaliated against plaintiff by creating a burdensome
9 request for proposal for replacing Grady Excavating and ultimately awarding the
10 Replacement Contract to OMA Construction, Complaint, ¶¶ 4.51, 4.52; (2) that WSDOT
11 retaliated against plaintiff by removing STP from the breach of contract status issued by
12 WSDOT, Complaint, ¶ 5.8; and (3) that STP retaliated against plaintiff when it
13 negotiated for a waiver of any claims plaintiff might assert against STP in a subsequent
14 contract awarded to plaintiff, Complaint, ¶ 5.9.6
Plaintiff’s allegation that STP retaliated against plaintiff in connection with the
16 Replacement Contract is time barred for the same reasons set forth with respect to his
17 Title VI discrimination claim. As noted above, in Washington, claims under 42 U.S.C.
18 § 2000d have a three year statute of limitations, see Taylor, 993 F.2d at 711-12; see also
19 RCW 4.16.080(2), and although plaintiff was aware of the facts giving rise to this portion
20 of his retaliation claim by at least August 20, 2012, he did not file this lawsuit until
21 February 7, 2017.
Plaintiff does not allege any specific retaliatory conduct undertaken by Washington State or OMWBE.
ORDER - 10
Plaintiff’s allegations that he was subjected to retaliation when STP negotiated for
2 the waiver provision and when WSDOT lifted the “breach” imposed on STP fail to state
3 a claim for relief. Plaintiff’s complaint fails to allege facts showing a causal connection
4 between plaintiff’s protected activity and WSDOT’s decision to remove STP from
5 “breach” of a contract to which plaintiff is not a party. Similarly, the complaint is devoid
6 of factual allegations from which the Court could plausibly infer that STP’s negotiation
7 of the waiver provision would deter a reasonable person from bringing or supporting a
8 charge of discrimination when STP ultimately agreed to strike the waiver from the
9 contract. Accordingly, plaintiff’s Title VI retaliation claim is DISMISSED without
3. Third Cause of Action, Violation of 42 U.S.C. § 1981(a) (Against all
42 U.S.C. § 1981(a) provides that “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make and enforce
contracts . . . to the full and equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). In the
context of public bidding, a plaintiff may state a valid cause of action under § 1981(a) by
alleging facts sufficient to show (1) his business is a minority owned firm; (2) that his bid
met the specifications required for the contract; (3) that his bid was “significantly more
advantageous” than the bid that won the contract; and (4) the contractor ultimately
selected another bid.7 T & S Serv. Assoc., Inc. v. Crenson, 666 F.2d 722, 725 (1st Cir.
The Eleventh Circuit requires a slightly different showing: (1) that plaintiff is a member of a minority
group; (2) that he submitted an application or bid meeting the requirements for an available contract; (3)
ORDER - 11
1 1981). Plaintiff alleges only two identifiable violations of § 1981: (1) in August 2015,
2 STP awarded a contract to OMA Construction, another certified DBE, even though
3 plaintiff provided the “best value” for the services, Complaint, ¶ 5.13; and (2) in October
4 of 2016, STP awarded OMA Construction another contract without giving plaintiff “an
5 opportunity to address his bids,” Complaint, ¶ 5.14.
Plaintiff’s allegations concerning these purported violations of § 1981 are far too
7 vague and conclusory to state a plausible claim for relief. The complaint fails to allege
8 any specific conduct undertaken by defendants Peterson, Laird, Dixon, or Streadbeck in
9 connection with plaintiff’s § 1981 claim, other than to allege that they acted with
10 “malice.” Complaint, ¶ 5.15. With respect to Washington State, WSDOT, and
11 OMBWE, plaintiff offers only the entirely conclusory allegation that they used the
12 official policies of the State to implement their abuse of plaintiff’s constitutional rights.
13 Id. And finally, as to STP, plaintiff has failed to allege facts from which the Court could
14 plausibly infer that his bid met the specifications required for the contracts at the heart of
15 his § 1981 claim or that his bid on those contracts was “significantly more
16 advantageous.” Plaintiff simply concludes, without factual support, that his bid was the
17 “best value.” Complaint, ¶ 5.13. However, such threadbare recitals of the elements of a
18 cause of action, supported only by conclusory statements, do not suffice to survive a
21 the application or bid was ultimately rejected; and (4) the contract was eventually given to an individual
who was not a member of a protected class. Brown v. Am. Honda Motor Co., 939 F.2d 946, 949 (11th
Cir. 1991). The Ninth Circuit does not appear to have decided this issue, but regardless of which standard
22 applies, as discussed below, plaintiff has failed to allege that his bid met the requirements for the
ORDER - 12
1 motion to dismiss. See Iqbal, 556 U.S. at 678. Accordingly, plaintiff’s § 1981 claim is
2 DISMISSED without prejudice.
4. Fourth Cause of Action — Violation of 42 U.S.C. § 1983 (Against
Defendants Peterson and Laird)
42 U.S.C. § 1983 provides, in pertinent part, that “[e]very person who, under color
of any statute of any State . . . subjects, or cause to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured . . . .” 42 U.S.C. § 1983. Plaintiff bases his § 1983 claim on non-specific
allegations that defendants Peterson and Laird deprived him of his rights under the First
and Fourteenth Amendments. See Complaint, ¶¶ 5.17, 5.20. However, in order for a
person acting under color of state law to be liable under § 1983, there must be a showing
of personal participation in the alleged rights deprivation. Jones v. Williams, 297 F.3d
930, 934 (9th Cir. 2002). Here, plaintiff’s complaint fails to identify the conduct
allegedly undertaken by defendants Peterson and Laird that deprived him of his
constitutional rights. Consequently, plaintiff’s § 1983 claim is DISMISSED without
5. Fifth Cause of Action —Violation of 42 U.S.C. § 1985(3) (Against all
To state an actionable claim under 42 U.S.C. § 1985(3), a plaintiff must allege
20 four elements: “(1) a conspiracy; (2) for the purpose of depriving, either directly or
21 indirectly, any person or class of persons of the equal protection of the laws, or of equal
22 privileges and immunities under the laws; and (3) an act in furtherance of this conspiracy;
ORDER - 13
1 (4) whereby a person is either injured in his person or property or deprived of any right or
2 privilege of a citizen of the United States.” Sever v. Alaska Pulp Corp., 978 F.2d 1529,
3 1536 (9th Cir. 1992). Other than simply concluding that he has “alleged sufficient facts
4 in [his] Complaint,” plaintiff has entirely failed to respond to the arguments raised by
5 defendants seeking dismissal of his § 1985 claim and the Court construes this failure as
6 an admission that the defendants’ arguments have merit. See Rice v. Providence Reg’l
7 Med. Ctr. Everett, No. 09-482 RSM, 2009 WL 2342449, at *3 (W.D. Wash. July 28,
8 2009) (“Plaintiff’s failure to respond to these portions of Defendant’s brief is an
9 admission that those arguments have merit.”); Local Civil Rule 7(b)(2). In addition,
10 plaintiff’s allegation that defendants conspired to deprive him of equal protection of the
11 laws is entirely conclusory and without factual support, see Complaint, ¶¶ 5.22-5.23, and
12 is therefore insufficient to withstand a motion to dismiss. See Karim-Panahi v. Los
13 Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988) (“A mere allegation of
14 conspiracy without factual specificity is insufficient.”). Accordingly, plaintiff’s § 1985
15 claim is DISMISSED without prejudice.
6. Sixth Cause of Action — Breach of Contract and Good Faith and Fair
Dealing (Against Defendants STP and WSDOT)
Plaintiff’s breach of contract claim alleges that STP breached its contract with
WSDOT by making only pro forma, rather than good faith, efforts to comply with the
contract’s 8% DBE goal. Complaint, ¶¶ 5.27 – 5.29. Under Washington law, a claim for
breach of contract requires a plaintiff to allege: (1) the existence of a valid contract; (2)
breach of that contract; and (3) damages resulting from the breach. See Karpenski v.
American General Life Companies, LLC, 999 F. Supp. 2d 1235, 1250 (W.D. Wash.
ORDER - 14
1 2014). In every Washington contract there is an implied duty of good faith and fair
2 dealing which obligates the parties to the contract to cooperate with each other so that
3 each may obtain the full benefit of performance. See Badgett v. Sec. State Bank, 116
4 Wn.2d 563, 569 (1991). The duty of good faith and fair dealing requires only that the
5 parties perform in good faith the obligations imposed by the agreement. Id. If there is no
6 contractual duty owed, there is nothing that must be performed in good faith. Johnson v.
7 Yousoofian, 84 Wn. App. 755, 762 (1996).
Generally, only the parties to a contract can sue to enforce the contract’s terms.
9 Lobak Partitions, Inc. v. Atlas Constr. Co., 50 Wn. App. 493, 497 (1988). A third party
10 can maintain an action for breach of duties imposed by a contract, however, where the
11 parties intended the promisor to assume a direct obligation to the third party at the time
12 they entered into the contract. Lonsdale v. Chesterfield, 99 Wn.2d 353, 360-61 (1983).
Plaintiff’s opposition argues, without citation to any authority, that he is a third-
14 party beneficiary to the contract between STP and WSDOT. However, plaintiff’s
15 complaint fails to allege any facts from which the Court could reasonably infer that STP
16 and WSDOT intended to provide a direct benefit to plaintiff when they entered into the
17 contract to complete the Alaskan Way Viaduct project. The fact that the 8% DBE goal
18 might have benefited plaintiff as a DBE is, at most, an incidental, contingent benefit
19 insufficient to render him a third-party beneficiary. See Lonsdale, 99 Wn.2d at 362
20 (noting that to be a third party beneficiary, the terms of the contract must necessarily
21 require the promisor to confer a benefit upon a third person). Plaintiff’s sixth cause of
22 action is DISMISSED without prejudice.
ORDER - 15
7. Seventh Cause of Action — Defamation (Against Defendants STP, Dixon,
A claim of defamation requires a plaintiff to allege four elements: (1) the
statement was false; (2) it was not privileged; (3) the defendant was at fault; and (4) the
statement proximately caused damages. Mark v. Seattle Times, 96 Wn.2d 473, 486
(1981). As with plaintiff’s claim under § 1985(3), plaintiff has failed entirely to respond
to the STP Defendants’ arguments in support of dismissal and the Court construes this
failure as an admission that the arguments have merit. See Rice, 2009 WL 2342449, at
In addition, plaintiff’s allegations of defamation fall short of alleging a plausible
claim for relief. Plaintiff alleges that the STP Defendants defamed plaintiff when they
told WSDOT officials that plaintiff used trucks he neither leased nor owned and spread
rumors that plaintiff scratched out VIN numbers on his trucks to hinder verification of
their ownership. Complaint, ¶¶ 5.31 – 5.32. Plaintiff appears to allege that these
statements caused plaintiff damage in the form of unspecified lost contracts and injury to
his reputation. Id. at ¶¶ 5.32 – 5.33, 5.35 & 5.37. However, plaintiff fails to allege facts
supporting his alleged injury to reputation, does not identify any specific contracts lost as
a result of these statements, and draws no nexus between the alleged statements and any
damage allegedly caused. Plaintiff’s seventh cause of action for defamation is
DISMISSED without prejudice.
8. Eighth Cause of Action — Blacklisting (Against all Defendants)
Under Washington law, a civil claim for blacklisting requires a plaintiff to allege
facts sufficient to show that the defendant “willfully and maliciously” sought to influence
ORDER - 16
1 a potential employer for the purpose of preventing the plaintiff from obtaining
2 employment. Moore v. Commercial Aircraft Interiors, LLC, 168 Wn. App. 502, 510
3 (2012). A plaintiff must, at a minimum, allege specific facts showing that a defendant
4 published the statement “for the purpose of preventing plaintiff from securing
5 employment.” Banks v. Yoke’s Foods, Inc., No. 14-CV-319, 2014 WL 7177856, at *8
6 (E.D. Wash. Dec. 16, 2014) (emphasis in original). Plaintiff has again failed to respond
7 to defendants arguments in support of dismissal and the Court construes this failure as an
8 admission that the arguments have merit. See Rice, 2009 WL 2342449, at *3.
In support of his blacklisting claim, plaintiff alleges that William Miller, an
10 employee of Dragados U.S.A. “stated in front of WSDOT employees that plaintiff Elton
11 Mason ‘will never get a job on this project (Seattle Tunnel Project).’” Complaint, ¶ 5.45.
12 However, plaintiff fails to allege facts sufficient to show that Mr. Miller’s statement
13 sought to influence a potential employer for the purpose of preventing plaintiff from
14 obtaining employment.8 Plaintiff’s complaint does not identify any specific contracts he
15 was allegedly denied as a result of this statement and in fact, his contention that the
16 statement was made for the purpose of preventing him from obtaining employment is
17 flatly contradicted by STP’s decision to award him an $180,000 contract for work on the
18 Alaskan Way Viaduct project. See Complaint, ¶ 1.22. Plaintiff’s blacklisting claim, as
19 alleged, fails to raise a plausible, non-speculative right to relief and accordingly,
20 plaintiff’s eighth cause of action is DISMISSED without prejudice.
Plaintiff does not allege any facts showing that the State Defendants engaged in conduct that sought to
influence a potential employer for the purpose of preventing plaintiff from obtaining employment.
ORDER - 17
9. Ninth Cause of Action — Tortious Interference with Business Expectancy
(Against all Defendants)9
A claim for tortious interference requires a plaintiff to allege facts sufficient to
show: (1) the existence of a valid contractual relationship or business expectancy; (2) that
defendants had knowledge of that relationship or expectancy; (3) intentional interference
inducing or causing breach or termination of the relationship or expectancy; (4) that
defendants interfered for an improper purpose or used improper means; and (5) resultant
damage. Leingang v. Pierce Cnty. Med. Bureau, Inc., 131 Wn.2d 133, 157 (1997).
Here, plaintiff alleges, in conclusory fashion, that he had unspecified business
relationships or expectancies with WSDOT and STP, and that WSDOT and STP
interfered with those relationships or expectancies in an unspecified manner. Complaint,
¶¶ 5.45 - 5.50. However, such threadbare recitals of the elements of a tortious
interference claim without any factual support are insufficient to survive a motion to
dismiss. See Iqbal, 556 U.S. at 678; see also Graham v. Cingular Wireless LLC, No.
C05-1810, 2006 WL 354969, at *2 (W.D. Wash., Feb. 14, 2006). Moreover, plaintiff’s
tortious interference claim does not contain allegations that defendants Washington State,
OMWBE, Peterson, Laird, Dixon, or Streadbeck, had knowledge of or interfered with
any business expectancy or relationship. Accordingly, plaintiff’s ninth cause of action
for tortious interference is DISMISSED without prejudice.
Plaintiff has titled its ninth cause of action “Economic Interference with Business Relationships.” The
Court construes this claim as asserting a cause of action for tortious interference.
ORDER - 18
10. Tenth Cause of Action — Violation of the Washington Consumer
Protection Act (Against defendants STP, Dixon, Streadbeck, Peterson and
Under Washington law, a claim for violation of the Consumer Protection Act
4 (“CPA”) requires a plaintiff to allege: (1) an unfair or deceptive act or practice; (2)
5 occurring in the conduct of trade or commerce; (3) with an impact on the public interest;
6 (4) that injured the plaintiff in her business or property; and (5) causation. Hangman
7 Ridge Training Stables, Inc. v. Safeco Ins. Co., 105 Wn.2d 778, 780 (1986).
Plaintiff’s CPA claim appears to be based on his allegations that STP awarded
9 Grady Excavating contracts despite its knowledge that Grady Excavating was not
10 actually an economically disadvantaged business.10 Complaint, ¶ 5.61. The only specific
11 contract the complaint alleges was awarded to Grady Excavating was the Initial Contract
12 for hauling and disposal work, Complaint, ¶ 4.48. Plaintiff’s CPA claim with respect to
13 this contract, however, is barred by the statute of limitations.
A claim under the CPA is barred unless commenced “within four years after the
15 cause of action accrues.” Shepard v. Holmes, 185 Wn. App. 730, 739 (2014) (quoting
16 RCW 19.86.120). A cause of action under the CPA accrues when the plaintiff, through
17 the exercise of due diligence, knew or should have known the basis for the cause of
18 action. Id. at 739-40. Here, plaintiff’s allegations that he filed a complaint with
19 OMWBE to “expose Grady Excavating’s fraudulent representations,” resulting in
20 “decertification of Grady Excavating on July 6, 2012,” Complaint, ¶ 4.50, in combination
Although plaintiff’s CPA claim is apparently also against Peterson and Laird, plaintiff does not allege
any specific unfair or deceptive acts or practices implemented by either Peterson or Laird.
ORDER - 19
1 with his August 20, 2012, complaint to the Federal Highway Administration, demonstrate
2 that by at least August 20, 2012, plaintiff knew or should have known of the basis of his
3 CPA claim. Despite this knowledge, however, plaintiff did not file this action until
4 February 7, 2017, well after the four-year limitations period expired. Plaintiff’s
5 allegation that STP violated the CPA when it awarded the Initial Contract to Grady
6 Excavating is therefore untimely.
In light of plaintiff’s allegation that STP violated the CPA by awarding Grady
8 Excavating other unspecified contracts, however, Complaint, ¶ 5.61, the Court is not yet
9 satisfied, that plaintiff cannot allege timely violations of the CPA which state a plausible
10 claim for relief. Accordingly, plaintiff’s tenth cause of action is DISMISSED without
11. Eleventh Cause of Action — Negligent Infliction of Emotional Distress
(Against all Defendants)
To state a claim for negligent infliction of emotional distress under Washington
law a plaintiff must allege: (1) duty; (2) breach; (3) proximate cause; (4) damage; and (5)
objective symptomatology. Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 505 (2014).
Plaintiff’s allegations that defendants engaged in unspecified conduct causing “severe
emotional distress,” Complaint at ¶ 5.64, are too vague and conclusory to withstand a
motion to dismiss. Plaintiff must do more—he must set forth factual allegations, not
merely labels and conclusions, demonstrating a plausible claim for relief against each
defendant whose conduct he alleges inflicted actionable emotional distress. See
Twombly, 127 U.S. at 555. Accordingly, plaintiff’s eleventh cause of action for negligent
infliction of emotional distress is DISMISSED without prejudice.
ORDER - 20
For the foregoing reasons, the STP Defendants’ motion to dismiss, docket no. 21,
3 and the State Defendants’ joinder in that motion, docket no. 30, are GRANTED as
Plaintiff’s first cause of action for Title VI Discrimination is DISMISSED with
Plaintiff’s remaining claims are DISMISSED without prejudice and with leave to
8 amend. Plaintiff may file an amended complaint consistent with the Court’s ruling within
9 thirty (30) days of the date of this Order. If plaintiff does not file an amended complaint
10 within thirty days of the date of this Order, the Court will dismiss this case with
IT IS SO ORDERED.
Dated this 13th day of June, 2017.
Thomas S. Zilly
United States District Judge
ORDER - 21
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