Carter v. Hagens Berman Sobel Shapiro LLP
MINUTE ORDER granting in part and denying in part Plaintiff's 37 Motion for Judgment on the Pleadings. Defendants' counterclaims for fraud in the inducement, fraudulent concealment, and unjust enrichment are barred by the applicable stat ute of limitations set out in RCW 4.16.080 and are dismissed with prejudice. The Court denies plaintiff's motion for judgment on the pleadings to dismiss the portion of the fourth counterclaim for breach of contract relating to the Employment letter. Authorized by Judge Thomas S. Zilly.(TH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
HAGENS BERMAN SOBOL
SHAPIRO, LLP and STEVE W.
The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
Plaintiff’s Motion for Judgment on the Pleadings, docket no. 37, is
GRANTED in part and DENIED in part as follows:
Defendants’ counterclaims for fraud in the inducement, fraudulent concealment,
and unjust enrichment are barred by the applicable statute of limitations set out in
RCW 4.16.080 and are dismissed with prejudice. Defendants allege they discovered the
misrepresentations during a December 2012 trip to Japan. See Defendants’ Answer,
Affirmative Defenses and Counterclaim at ¶ 3.17 (docket no. 34) [hereinafter
“Counterclaims”]. These counterclaims accrued when defendants discovered, or in the
exercise of diligence, should have discovered the claims. Green v. APC, 136 Wn.2d 87,
95 (1998). Defendants’ first three counterclaims accrued as of December 2012 and are
therefore barred as a matter of law.
Defendants’ fourth counterclaim alleges a breach of contract. In Washington, an
action upon written contract, or liability, express or implied, arising out of a written
22 agreement is governed by a six-year statute of limitations. RCW 4.16.040(1). Actions
MINUTE ORDER - 1
1 for breach of contract that do not expressly or impliedly arise out of a written contract are
governed by a three-year statute of limitations. RCW 4.16.080(3); Davis v. Davis Wright
2 Tremaine LLP, 103 Wn. App. 638 (2000). The breach of contract counterclaim arises out
of the letter entitled “Confirmation of Business Advisory Services” (the “Confirmation of
3 Business letter”), see Counterclaims at ¶ 3.55, and the letter entitled “Confirmation of
Terms of Employment” (the “Employment letter”) attached to plaintiff’s Amended
4 Complaint (docket no. 31 at 8-10), see Counterclaims at ¶ 3.54. The portion of the
breach of contract counterclaim alleging a “duty to act in good faith and not deceive”
5 sounds in tort, and is a claim for misrepresentation governed by the three-year statute of
limitations. This portion of the breach of contract counterclaim relates to allegations
6 arising from the Confirmation of Business letter (Counterclaims at ¶¶ 3.55, 3.56, & 3.57)
and relates to services during the period December 15, 2012, through December 31,
7 2012. This portion of the counterclaim is barred by the three-year statute of limitations
and is dismissed with prejudice.
In contrast, the second part of the breach of contract counterclaim is the allegation
9 that “Carter breached his employment agreement in failing to leave his job with Kelly
Drye and failing to perform any work for Hagens Berman as an attorney.” Id. at ¶¶ 3.54
10 & 3.58. These alleged acts naturally follow from the promissory language to join Hagens
Berman “Of Counsel.” These allegations and the claim of liability arise out of the
11 Employment letter and are governed by the six-year statute of limitations.
RCW 4.16.040(1). As a result, the Court denies plaintiff’s motion for judgment on the
12 pleadings to dismiss the portion of the fourth counterclaim for breach of contract relating
to the Employment letter.
The Clerk is directed to send a copy of this Minute Order to all counsel of
Dated this 7th day of September, 2017.
William M. McCool
MINUTE ORDER - 2
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