Top Notch Solutions, Inc. et al v. Crouse and Associates Insurance Brokers, Inc. et al

Filing 127

MINUTE ORDER denying plaintiffs' 109 Motion for Reconsideration treated as a motion for leave to file a fifth amended complaint ; granting in part and denying in part defendant McGriff, Siebels & Williams, Inc.'s 104 Motion fo r Judgment on the Pleadings ; directing plaintiffs to SHOW CAUSE within twenty-one (21) days of the date of this Minute Order why their claims against defendants John/Jane Does 2-50 should not be dismissed without prejudice for failure to identify su ch entities and prosecute ; directing parties to meet and confer to file a updated Joint Status Report within twenty-one (21) days of the date of this Minute Order ; DEFERRING and RENOTING defendant Crouse's 112 Motion to Compel, and defendant McGriff's 212 Motion to Compel: Noting Date 2/8/2019. Authorized by Judge Thomas S. Zilly.(SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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TOP NOTCH SOLUTIONS, INC.; and
ROBERT RASHIDI,

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Plaintiffs,
v.
C17-827 TSZ
CROUSE AND ASSOCIATES
INSURANCE BROKERS, INC.;
McGRIFF, SEIBELS & WILLIAMS,
INC.; LAW OFFICES OF PUCIN &
FREIDLAND, P.C.; and JOHN/JANE
DOES 2-50,

MINUTE ORDER

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Defendants.
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The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:

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(1)
Plaintiffs’ motion for reconsideration, docket no. 109, which has been
treated as a motion for leave to file a fifth amended complaint, see Minute Order (docket
16 no. 111), is DENIED. Plaintiffs’ proposed amended complaint, docket no. 109-1, does
not contain the requisite allegations to establish a plausible relationship between the local
17 activities at issue and interstate commerce, and plaintiffs have not pleaded sufficient facts
to proceed on claims under the federal Sherman and/or Clayton Acts.
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(2)
The motion for judgment on the pleadings, docket no. 104, brought under
19 Federal Rule of Civil Procedure 12(c) by defendant McGriff, Siebels & Williams, Inc.
(“McGriff”) is GRANTED in part and DENIED in part, as follows.
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(a)
The Court previously granted McGriff’s partial motion to dismiss
with respect to the claim made in the Third Amended Complaint, docket no. 50,
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for violation of Washington’s Consumer Protection Act (“CPA”), but granted
plaintiffs leave to amend. See Order at 3-4 (docket no. 86). In connection with
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the CPA claim, plaintiffs’ Fourth Amended Complaint, docket no. 90, suffers from
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MINUTE ORDER - 1

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the same deficiencies as the Third Amended Complaint, namely a failure to plead
how competition generally (as opposed to plaintiffs’ business in particular) has
been injured by McGriff’s actions. The Court concludes that, to the extent
plaintiffs have been aggrieved by the activities of McGriff and others, their claims
do not sound in antitrust, and plaintiffs cannot cure the inadequacies of their CPA
claim asserted under RCW 19.86.030 and .040. McGriff’s motion for judgment
on the pleadings is therefore GRANTED as to the CPA claim asserted against
McGriff pursuant to RCW 19.86.030 and .040.

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(b)
With regard to plaintiffs’ claim for tortious interference with a
contractual relationship or business expectancy, the Court denied McGriff’s earlier
Rule 12(b)(6) motion to dismiss, and its Rule 12(c) motion is simply a motion for
reconsideration, which shows no manifest error in the prior ruling and presents no
facts or legal authority that could not have been brought to the Court’s attention
earlier with reasonable diligence. See Local Civil Rule 7(h)(1). McGriff’s motion
for judgment on the pleadings is therefore DENIED with respect to the tortious
interference claim.
(c)
As to plaintiffs’ defamation or business disparagement claim, which
was not challenged in McGriff’s prior Rule 12(b)(6) motion, McGriff argues that
(i) it is entitled to judgment because the pleading is insufficient, and (ii) the claim
was not brought within the two-year limitation period and is therefore time-barred.
Although the Court agrees with McGriff that the defamation and/or disparagement
claim is not well pleaded, the remedy for such deficiency is not judgment on the
pleadings, but rather dismissal without prejudice and with leave to amend. See
Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when
justice so requires.”). McGriff, however, did not ask for such remedy, and the
Court declines to grant it. The Court is also inclined to concur with McGriff that
the defamation and/or disparagement claim is time-barred, but in deciding a
Rule 12(c) motion, the Court is not permitted to consider matters outside the
pleadings or resolve factual questions about when plaintiffs discovered the cause
of their alleged injuries. See Fed. R. Civ. P. 12(d); see also JM Martinac
Shipbuilding Corp. v. Washington, 363 Fed. App’x 529, 531-32 (9th Cir. 2010)
(reversing the dismissal of defamation and commercial disparagement claims as
being time-barred because the district court improperly concluded that the
discovery rule did not apply, the record did not indicate when the plaintiff learned
of its injury, and what the plaintiff should have known at a given time is a question
of fact, with the burden of proof on the defendant). Thus, McGriff’s motion for
judgment on the pleadings is DENIED with regard to the defamation and/or
disparagement claim.

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(3)
Plaintiffs are DIRECTED to show cause within twenty-one (21) days of the
date of this Minute Order why their claims against defendants John/Jane Does 2-50
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prosecute.
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MINUTE ORDER - 2

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(4)
Plaintiffs did not timely respond to McGriff’s motion to compel, docket
no. 121, and in a notice filed on the noting date for the motion to compel, McGriff
indicated that plaintiffs’ counsel might have experienced a family medical issue. The
trial date and related deadlines in this case were previously stricken because of plaintiffs’
counsel’s health condition, see Order at 8 (docket no. 101), and in light of the pending
dispositive and discovery motions, the Court has not reset the trial date or related
deadlines. In connection with the separate motion to compel, docket no. 112, brought by
Crouse and Associates Insurance Brokers, Inc. (“Crouse”), the parties dispute whether
plaintiffs have responded to discovery requests. The Court is unable to determine from
the record what has been produced in response to the various discovery requests. Thus,
the parties are DIRECTED to meet and confer and to file an updated Joint Status Report
within twenty-one (21) days of the date of this Minute Order concerning (i) exactly what,
if any, discovery has been produced by plaintiffs, and what, if any, discovery requests
remain outstanding; and (ii) what trial date and related deadlines the parties propose in
light of the delays encountered since their last Joint Status Report, docket no. 106, was
filed on November 16, 2018.

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(5)
Defendant Crouse’s motion to compel, docket no. 112, and defendant
10 McGriff’s motion to compel, docket no. 121, are DEFERRED and RENOTED to
February 8, 2019.
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(6)
The Clerk is directed to send a copy of this Minute Order to all counsel of
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Dated this 17th day of January, 2019.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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MINUTE ORDER - 3