Miller et al v. Sawant et al

Filing 36

ORDER granting Councilmember Sawant's 24 Motion to Dismiss with prejudice. The Court hereby dismisses Councilmember Sawant from this matter; The remaining claims in this matter shall proceed solely against Defendant City of Seattle; and The parties are ordered to comply with the case deadlines as set forth at Dkt. No. 17 , and shall file the required initial disclosures, Joint Status Report, and Discovery Plan in accordance with this schedule. Signed by Judge Marsha J. Pechman. (TH)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 SCOTT MILLER and MICHAEL SPAULDING, 11 Plaintiffs, CASE NO. 18-0506MJP ORDER GRANTING MOTION TO DISMISS 12 v. 13 KSHAMA SAWANT and CITY OF SEATTLE, 14 Defendants. 15 16 17 THIS MATTER comes before the Court on Defendants’ Motion to Dismiss the Second 18 Amended Complaint (Dkt. No. 24) and Plaintiffs’ Motion to Strike (Dkt. No. 30). Having 19 reviewed the Motions, the Response (Dkt. No. 26), the Reply (Dkt. No. 28), the Surreply (Dkt. 20 No. 30) and the related record, the Court GRANTS the Motion to Dismiss and the Motion to 21 Strike. 22 23 24 ORDER GRANTING MOTION TO DISMISS - 1 1 2 Background In February 2016, Plaintiffs—City of Seattle Police Officers Scott Miller and Michael 3 Spaulding—were serving a warrant when they encountered Che Taylor. (Dkt. No. 23 at ¶¶ 29- 4 31.) Plaintiffs claim they recognized Mr. Taylor, a “known drug dealer, pimp, and felon” with a 5 violent past, and observed that he was visibly armed. (Id. at ¶¶ 32-35.) When Mr. Taylor 6 refused to comply with their commands and instead appeared to reach for his gun, they opened 7 fire, shooting and killing him. (Id. at ¶¶ 37-39.) The incident drew immediate public attention, 8 including that of Defendant City Councilmember Kshama Sawant (“Councilmember Sawant”). 9 (Id. at ¶ 43.) 10 Plaintiffs filed this federal suit in April 2018, alleging that Councilmember Sawant 11 repeatedly made false and defamatory statements and asserting state and federal causes of action 12 for defamation and defamation per se and outrage against her. 1 (See Dkt. No. 1.) On April 30. 13 2018, Plaintiffs filed their First Amended Complaint. (Dkt. No. 9) (“FAC”). In relevant part, the 14 FAC alleged: 15 16 17 Approximately five days after the shooting, Sawant appeared before a crowd and media in front of the police department. This was not official city council business, and certainly not a “legislative function.” Sawant, however, implied awareness of inside factual information, and appeared to be making a statement against interest. With gravitas established, she went on to pronounce Che Taylor’s death a “brutal murder” and product of “racial profiling.” 18 ... 19 20 21 On information and belief, Sawant reiterated the above-statements publicly throughout the year and, with particular emphasis, immediately before the officers’ inquest. The officers believe that civil discovery—which Sawant frenetically stonewalled and sought secrecy orders in relation to, in Superior Court—will uncover a pattern of culpable conduct and defamatory statements. 22 23 24 1 Though not the subject of this Motion to Dismiss, the Complaint also asserts causes of action for retaliation and outrage against the City of Seattle. ORDER GRANTING MOTION TO DISMISS - 2 1 (Id. at ¶¶ 24, 29.) 2 In September 2018, the Court ordered Plaintiffs to file a more definite statement setting 3 forth “(1) the statements allegedly made by Defendant Sawant claimed to be false/defamatory, 4 (2) when each statement was made, and (3) to whom it was made.” (Dkt. No. 22.) 5 In October 2018, Plaintiffs filed their Second Amended Complaint (Dkt. No. 23) 6 (“SAC”), apparently in an effort to comply with the Court’s Order. With few exceptions, the 7 SAC is substantively identical to the FAC. (Compare Dkt. No. 9, Dkt. No. 23.) In relevant part, 8 the SAC alleges: 9 10 11 Approximately five days after the shooting, Sawant appeared before a crowd and media in front of the police department. This was not official city council business, and certainly not a “legislative function.” 12 13 14 Sawant, however, implied awareness of inside factual information, and appeared to be making a statement against interest. With gravitas established, she went on to pronounce Che Taylor’s death a “brutal murder” and product of “racial profiling.” 15 ... 16 17 18 19 On information and belief, Sawant reiterated the above-statements publicly again on June 20, 2017 beginning at around 6:40 p.m. when she stated to a crowd of public gathered on the streets of Seattle claiming there can be no justice for anyone of color as there was no justice for Che Taylor. In fact, at that time, she proclaimed again that Che Taylor “was murdered by the police” after emphasizing that because he was “black” there would be no justice clearly implicated again her prior statements that his death was racially motivated. 20 21 22 23 The officers believe that through civil discovery—which Sawant frenetically stonewalled and sought secrecy orders in relation to, in Superior Court—will uncover a pattern of culpable conduct and defamatory statements that she made with regards to them and the incident involving Che Taylor’s death. (Dkt. No. 23 at ¶¶ 43-46, 54-55.) 24 ORDER GRANTING MOTION TO DISMISS - 3 1 Councilmember Sawant moved to dismiss the SAC. (Dkt. No. 24.) In response, 2 Plaintiffs—for the first time and in a declaration of counsel—offered a complete transcription of 3 Councilmember Sawant’s allegedly defamatory statements: 4 February 2016 Statement: 5 This is dramatic racial injustice, in this city and everywhere in this nation. The brutal murder of Che Taylor, just a blatant murder at the hands of the police, show how urgently we need to keep building our movement for basic human rights for black people and brown people. I want to let you know that I stand here both as an elected official, as a brown person, as an immigrant woman of color, and as someone who has been in solidarity with the Black Lives Matter movement, and our movement for racial, economic and social justice. . . . 6 7 8 9 11 And I am here as an elected official because I am completely committed, unambiguously committed, to holding the Seattle Police Department accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling. 12 June 2017 Statement: 13 I join the NAACP in demanding such a transparent public hearing. When Che Taylor was murdered by the police, the community and I demanded such a hearing from the Mayor and from Council member Gonzalez whose committee oversees the SPD, but neither the Mayor nor Council member Gonzalez responded. In . . . in light of the horrific killing of Charleena now I again urge . . . I publicly urge the City Council to hold such a hearing. I have also earlier today sent a number of important questions to the SPD. 10 14 15 16 17 21 . . . We demand that the City of Seattle appoint an independent committee to review this case . . . with . . . with full public accountability. We cannot rely on the existing process to determine why Charleena was killed because that process has failed Che Taylor . . . that process has failed every person who was killed at the hands of the Police. Sisters and brothers, I will add one more thing for our movement that is standing with Charleena to think about, a deeply unequal society such as ours also implies that the lives of poor and low-income people, black and brown people, homeless people, those who have mental health issues and challenges . . . the system treats our lives as expendable. 22 (Dkt. No. 27 at ¶¶ 4-5) (emphasis omitted). 18 19 20 23 24 ORDER GRANTING MOTION TO DISMISS - 4 1 Additionally, Plaintiffs for the first time alleged that on the “same day” that 2 Councilmember Sawant made her initial statements, the Seattle Times published an article 3 identifying them by name. (Dkt. No. 26 at 1.) 4 5 6 Discussion I. Legal Standard The Court may dismiss a complaint for “failure to state a claim upon which relief can be 7 granted.” Fed. R. Civ. P. 12(b)(6). “A complaint may fail to show a right of relief either by 8 lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal 9 theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). In ruling on a Rule 10 12(b)(6) motion, the Court must accept all material allegations as true and construe the complaint 11 in the light most favorable to the non-movant. Wyler Summit P’Ship v. Turner Broad. Sys., Inc., 12 135 F.3d 658, 661 (9th Cir. 1998). The complaint “must contain sufficient factual matter, 13 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 14 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (1955)). 15 Despite this otherwise liberal pleading standard, the Ninth Circuit has held that courts 16 should consider First Amendment concerns even at the pleading stage. “[W]here a plaintiff 17 seeks damages . . . for conduct which is prima facie protected by the First Amendment, the 18 danger that the mere pendency of the action will chill the exercise of First Amendment rights 19 requires more specific allegations than would otherwise be required.” Flowers v. Carville, 310 20 F.3d 1118, 1130 (9th Cir. 2002) (quoting Franchise Realty Interstate Corp. v. S.F. Local Joint 21 Exec. Bd. of Culinary Workers, 542 F.2d 1076, 1082-83 (9th Cir. 1976)). “Defamation claims, 22 in particular, must be advanced with sufficient specificity,” Harris v. City of Seattle, 315 F. 23 24 ORDER GRANTING MOTION TO DISMISS - 5 1 Supp. 2d 1112, 1123 (W.D. Wash. 2004), including “the precise statements alleged to be false 2 and defamatory, who made them and when.” Flowers, 310 F.3d at 1130. 3 4 II. Motion to Strike As an initial matter, Plaintiffs in their Surreply have moved to strike any arguments 5 concerning their failure to plead “actual malice” (Dkt. No. 30), which were raised by 6 Councilmember Sawant for the first time in her Reply. (See Dkt. No. 28 at 11-12.) As there can 7 be no dispute that these arguments are improper, see, e.g., Amazon.com LLC v. Lay, 758 F. 8 Supp. 2d 1154, 1171 (W.D. Wash. 2010); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007), 9 the Court GRANTS the Motion to Strike and will not consider these arguments in its assessment 10 11 of the Motion to Dismiss. The Court notes that “the standard of fault in defamation cases depends on the nature of 12 the plaintiff.” LaMon v. Butler, 112 Wn.2d 193, 197 (1989) (en banc). “If the plaintiff is a 13 public figure or public official, he must show actual malice. If, on the other hand, the plaintiff is 14 a private figure, he need show only negligence.” Id.; see also New York Times Co. v. Sullivan, 15 376 U.S. 254, 279-80 (1964) (holding that a public official may not recover damages for a 16 defamatory falsehood “relating to his official conduct unless he proves that the statement was 17 made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of 18 whether it was false or not.”). While in general, “the initial question to be determined in cases of 19 this nature is whether plaintiffs are public officials or public figures,” Tilton v. Cowles Pub. Co., 20 76 Wn.2d 707, 716 (1969), the parties have not briefed the question of whether Officers Miller 21 and Spaulding are public officials for purposes of their defamation claims. Accordingly, the 22 Court does not address whether Plaintiffs’ failure to plead “actual malice” provides grounds for 23 dismissal. 24 ORDER GRANTING MOTION TO DISMISS - 6 1 III. 2 Motion to Dismiss A. Defamation 3 The elements of a defamation claim are (1) a false statement; (2) lack of privilege; (3) 4 fault; and (4) damages. Herron v. KING Broadcasting Co., 112 Wn.2d 762, 776 (1989). The 5 First Amendment further requires that the challenged statement be made “of and concerning” the 6 plaintiff. See Sullivan, 376 U.S. at 288-92 (1964); Sims v. KIRO, Inc., 20 Wn. App. 229, 233 7 (1978). 8 Whether a statement satisfies the “of and concerning” requirement is a question of 9 “constitutional dimension” which “should ordinarily be resolved at the pleading stage.” Gilman 10 v. Spitzer, 902 F. Supp. 2d 389, 394 (S.D.N.Y. 2012) (citations omitted). In determining 11 whether the “of and concerning” requirement has been satisfied, “[i]t is not necessary that the 12 plaintiff be mentioned by name in order to recover damages.” Camer v. Seattle Post- 13 Intelligencer, 45 Wn. App. 29, 37 (1986). However, “[t]he defamatory character of the language 14 used must be certain and apparent from the words themselves, and so must the identification of 15 the plaintiff as the person defamed.” Sims, 20 Wn. App. at 234 (citation omitted). “One cannot 16 by implication identify himself as the target of an alleged libel if the allegedly false statement 17 does not point to him.” Id. (citation omitted). Where a defamatory statement concerns a group 18 or class of persons, a member may sustain a claim for defamation “but only if (a) the group or 19 class is so small that the matter can reasonably be understood to refer to the member, or (b) the 20 circumstances of [the statement] reasonably give rise to the conclusion that there is particular 21 reference to the member.” Id. at 236 (citing Restatement (Second) of Torts § 564A (1977)); see 22 also Barger v. Playboy Enterprises, Inc., 564 F. Supp. 1151, 1153 (N.D. Cal. 1983) (“If the group 23 is small and its members easily ascertainable, plaintiffs may succeed. But where the group is 24 ORDER GRANTING MOTION TO DISMISS - 7 1 large—in general any group numbering over twenty-five members—the courts . . . have 2 consistently held that plaintiffs cannot show that the statements were ‘of and concerning them.’”) 3 (citations omitted). In other words, whether proceeding under an individual or group theory, 4 Plaintiffs must plead that the statements “specifically” identified or singled them out, or was 5 understood as “referring to [them] in particular.” Sims, 20 Wn. App. at 236. 6 Here, Plaintiffs have not done so, and the Court finds that Councilmember Sawant’s 7 statements do not satisfy the “of and concerning” requirement. According to the SAC, 8 Councilmember Sawant, while standing in front of the Seattle Police Department, stated that “the 9 police” committed a “brutal murder” which was “racially motivated.” (Dkt. No. 23 at ¶¶ 46, 54.) 10 Councilmember Sawant did not identify Officers Miller and Spaulding by name, nor did she 11 provide any information that would even remotely allow listeners to ascertain their identities, 12 such as their rank or position, division or unit, precinct, or length of time on the force. Finally, 13 Councilmember Sawant’s statements referred broadly to “the police,” the “Seattle Police 14 Department,” and “systematic police brutality and racial profiling.” (Id. at ¶¶ 43-46, 54-55; see 15 also Dkt. No. 27 at ¶¶ 4-5.) 16 While Plaintiffs contend that Councilmember Sawant “continually brings it back to these 17 specific officers and this specific incident” (Dkt. No. 27 at 7-8) (emphasis in original) her 18 references to “holding the Seattle Police Department accountable for their reprehensible actions, 19 individual actions” and seeking “justice on the individual actions” do not clearly establish 20 Officers Miller and Spaulding as their target. See Sims, 20 Wn. App. at 237 (“[T]he plaintiff 21 must show with convincing clarity that he was the target of the statement.”) (emphasis added). 22 That the Seattle Times contemporaneously published an article identifying Officers Miller and 23 Spaulding by name does not change this outcome. The “identification of the plaintiff[s] as the 24 ORDER GRANTING MOTION TO DISMISS - 8 1 person[s] defamed” must be “certain and apparent from the words themselves,” without reference 2 to extrinsic sources. Id. at 234 (emphasis added); see also Vantassell-Matin v. Nelson, 741 F. 3 Supp. 698, 709 (N.D. Ill. 1990) (explaining that plaintiffs “may not resort to proof of extrinsic 4 facts, other than those essential to understand the context in which a statement was made to 5 establish the defamatory nature of a statement not otherwise facially defamatory.”) (internal 6 quotation marks and citation omitted). Finally, even if Plaintiffs were correct that the references 7 to “individual actions,” coupled with their identification in the Seattle Times, could somehow 8 transform what are otherwise vague and oblique statements into actionable defamation, the SAC 9 does not plead any of these facts. 10 11 12 13 Because Plaintiffs have failed to satisfy the “of and concerning” requirement, the Court GRANTS the Motion to Dismiss with respect to the defamation claims. B. Outrage In the absence of a claim for defamation against Councilmember Sawant, Plaintiffs’ 14 claim of outrage also fails. The elements of the tort of outrage are (1) extreme and outrageous 15 conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional 16 distress on the part of the plaintiff. Robel v. Roundup Corp., 148 Wn.2d 35, 51 (2002) (en banc). 17 The extreme or outrageous conduct identified in the SAC is the alleged defamation, which claim 18 has been dismissed. An outrage claim based on the same facts as an unsuccessful defamation 19 claim “cannot survive as an independent cause of action.” Harris, 315 F. Supp. 2d at 1112 20 (quoting Leidholdt v. L.F.P. Inc., 860 F.2d 890, 893 n.4 (9th Cir. 1988)). 21 The Court GRANTS the Motion to Dismiss with respect to the outrage claim. 22 23 24 ORDER GRANTING MOTION TO DISMISS - 9 1 2 C. Leave to Amend In general, dismissal with prejudice and without leave to amend is not appropriate unless 3 it is clear “that the complaint could not be saved by any amendment.” Polich v. Burlington 4 Northern, Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). While there is a “strong policy in favor of 5 allowing amendment,” Royal Ins. Co. of Am. v. Southwest Marine, 194 F.3d 1009, 1016 (9th 6 Cir. 1999) (citation omitted), leave need not be granted where the amendment is sought in bad 7 faith, would prejudice the opposing party, would result in undue delay, or is futile. Id. “Under 8 Ninth Circuit case law, district courts are only required to grant leave to amend if a complaint 9 can possibly be saved. Courts are not required to grant leave to amend if a complaint lacks merit 10 entirely.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). 11 Here, the Court finds that granting Plaintiffs leave to amend their complaint would 12 prejudice the Defendants and would be futile. First, this case has been pending for nearly a year, 13 and Plaintiffs have already filed two amended complaints. (See Dkt. Nos. 9, 23.) Second, 14 despite the public availability of video recordings of the allegedly defamatory statements and 15 despite the Court’s September 2018 Order requiring that it do so, Plaintiffs’ SAC still does not 16 set forth the specific statements alleged to be false and defamatory. (See Dkt. No. 27 at ¶¶ 4-5; 17 see also Alex Garland, Almost 100 Protesters Gathered Outside SPD Headquarters Today 18 Demanding Answers About the Death of Che Taylor, The Stranger (Feb. 25, 2016, 4:42 PM) 19 available at www.thestranger.com/slog/2016/02/25/23623738/several-dozen-protesters- 20 gathered-outside-spd-headquarters-today-demanding-answers-about-the-death-of-che-taylor; 21 KIRO News, Rally and Vigil for Charleena Lyles (June 20, 2017, 6:03 PM) available at 22 www.facebook.com/KOMONews/videos/1475312605870400. Most importantly, even if the 23 Court were to grant Plaintiffs leave to amend to include these statements, they cannot satisfy the 24 ORDER GRANTING MOTION TO DISMISS - 10 1 “of and concerning” requirement, and Plaintiffs make no effort to explain how they could resolve 2 this deficiency, or how additional discovery could possibly uncover additional actionable 3 statements. See, e.g., Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051-52 (9th Cir. 2008) 4 (concluding that amendment would be futile where plaintiffs already filed an amended complaint 5 containing the same defects as their original complaint and failed to state “what additional facts 6 they would plead if given leave to amend, or what additional discovery they would conduct to 7 discover such facts”). 8 9 The Court concludes that the SAC should be dismissed with prejudice and without leave to amend. 10 11 Conclusion For the foregoing reasons, the Court ORDERS as follows: 12 (1) The Court GRANTS Plaintiffs’ Motion to Strike; 13 (2) The Court GRANTS Defendant Councilmember Sawant’s Motion to Dismiss with 14 15 16 17 prejudice, and hereby dismisses Councilmember Sawant from this matter; (3) The remaining claims in this matter shall proceed solely against Defendant City of Seattle; and (4) The parties are ordered to comply with the case deadlines as set forth at Dkt. No. 17, and 18 shall file the required initial disclosures, Joint Status Report, and Discovery Plan in 19 accordance with this schedule. 20 The clerk is ordered to provide copies of this order to all counsel. 21 Dated March 1, 2019. A 22 Marsha J. Pechman United States Senior District Judge 23 24 ORDER GRANTING MOTION TO DISMISS - 11

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