Hisey et al v. Ellis et al

Filing 94

ORDER granting in part and denying in part 68 Plaintiff Hisey's Motion to Dismiss for Failure to State a Claim; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CALLI L HISEY, et al.,

CASE NO. C17-5543RBL

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Plaintiffs,
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v.

ORDER GRANTING IN PART AND
DENYING IN PART HISEY’S ANTISLAPP MOTIONS

KELLY ELLIS, et al.,
Defendants.

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THIS MATTER is before the Court on Plaintiff Hisey’s Motion to Dismiss (and Special

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Motion to Strike) Defendant Ellis’s Counterclaim against her for defamation based on (1) her

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report to the Vancouver Police Department and (2) her subsequent complaint to the Better

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Business Bureau. Hisey argues that her complaints to a governmental agency about a matter

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reasonably within its concern entitle her to immunity under Washington’s “anti-SLAPP” statute,

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RCW 4.24.510. She seeks dismissal of the counterclaims under Rule 12(b)(6). She also asks the

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court to strike the counterclaims under the anti-SLAPP statute’s “special motion to strike”

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provision, RCW 4.24.525(4).

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Ellis argues that the “special motion to strike” provision of the anti-SLAPP statute (RCW

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4.24.525(4)) has been deemed unconstitutional. Davis v. Cox, 183 Wash. 2d 269, 294 (2015). He

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ORDER GRANTING IN PART AND DENYING IN
PART HISEY’S ANTI-SLAPP MOTIONS - 1

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also argues that Hisey cannot prevail on her more traditional Rule 12(b)(6) motion to dismiss

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because his counterclaim is based in part on Hisey’s report to a non-governmental agency, the

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BBB.

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Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal

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theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege

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facts to state a claim for relief plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009). A claim has “facial plausibility” when the party seeking relief “pleads factual content

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that allows the Court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]

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to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of

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a cause of action will not do. Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and

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footnotes omitted). This requires a plaintiff to plead “more than an unadorned, the-defendant-

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unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citing Twombly).

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On a Rule 12(b)(6) motion, “a district court should grant leave to amend even if no

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request to amend the pleading was made, unless it determines that the pleading could not

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possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection

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Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where the facts are not in dispute, and the

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sole issue is whether there is liability as a matter of substantive law, the Court may deny leave to

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amend. See Albrecht v. Lund, 845 F.2d 193, 195–96 (9th Cir. 1988).

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Washington’s anti-SLAPP statute aims to deter meritless suits filed to chill a defendant’s
exercise of his First Amendment rights. It immunizes any “person who communicates a

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ORDER GRANTING IN PART AND DENYING IN
PART HISEY’S ANTI-SLAPP MOTIONS - 2

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complaint or information to any branch or agency of federal, state, or local government … from

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civil liability for claims based upon the communication … [if it regards] any matter reasonably

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of concern to that agency or organization.” RCW 4.24.510 (2002). “The communicator need not

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have acted in good faith in order to be entitled to immunity.” Engler v. City of Bothell, No. C15-

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1873JLR, 2016 WL 3453664, at *7 (W.D. Wash. June 20, 2016) (explaining that the 2002

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amendment removed the statute’s good faith requirement, broadening the absolute protection

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afforded to communicators) (citing Bailey v. State, 191 P.3d 1285, 1291 (Wash. Ct. App. 2008)).

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Even if his speech was defamatory, he is immune if his communication regarded “any matter

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reasonably of concern” to the governmental agency to which he reported. See, e.g., Lowe v.

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Rowe, 173 Wash. App. 253, 262, 294 P.3d 6, 11 (Wash. Ct. App. 2012) (dismissing defamation

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claim because anti-SLAPP immunity applied). Speech is ‘of public concern’ when it can “be

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fairly considered as relating to any matter of political, social, or other concern to the

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community.” Snyder v. Phelps, 562 U.S. 443, 453 (2011).

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It is true that the special motion to strike is not in play. Davis v. Cox, supra. But the

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immunity granted by RCW 4.24.510 is triggered when the defendant (Hisey, in this context)

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reports or communicates to a governmental agency about matters reasonably of concern to it, and

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a plaintiff’s (Ellis, in this context) failure to state a claim in the face of it can be determined

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under the Rule 12(b)(6) standard.

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Hisey is immune from Ellis’s claim(s) arising from her report to the Vancouver Police

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Department, and Ellis admits as much. The Motion to dismiss that claim under RCW 4.24.510 is

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GRANTED, and the claim based on the VPD report is DISMISSED with prejudice and without

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leave to amend. Hisey is entitled to statutory damages and to attorneys’ fees under this statute,

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and she should file a brief in support of the same within 10 days. Defendants shall respond to any

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ORDER GRANTING IN PART AND DENYING IN
PART HISEY’S ANTI-SLAPP MOTIONS - 3

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such filing within 10 days of that filing. The Court will not award such damages or fees to both

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Hisey and her law firm; there will be (only) one award.

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Ellis’s counterclaim(s) based on the report to the BBB are not similarly subject to

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dismissal under the Rule 12(b)(6)/Iqbal/Twombly standard; it is plausible that Hisey’s report to

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that (non-governmental) agency is not entitled to similar immunity. Hisey’s Motion to Dismiss

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that counterclaim based on anti-SLAPP immunity is DENIED.

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The Motion to Strike footnote number one to Ellis’s Response to the Motion is DENIED.

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Ellis (and Hisey) should refrain from gratuitously including unnecessary and obviously

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embarrassing “facts” in the future.

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IT IS SO ORDERED.

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Dated this 28th day of November, 2017.

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A

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Ronald B. Leighton
United States District Judge

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ORDER GRANTING IN PART AND DENYING IN
PART HISEY’S ANTI-SLAPP MOTIONS - 4