State of Washington v. The GEO Group Inc

Filing 202

ORDER granting 183 Motion for Partial Summary Judgment. Signed by Judge Robert J. Bryan. (JL)

Case 3:17-cv-05806-RJB Document 202 Filed 05/13/19 Page 1 of 11

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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STATE OF WASHINGTON,
Plaintiff,
v.
THE GEO GROUP, INC.,

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Defendant.

CASE NO. 17-5806 RJB
ORDER ON WASHINGTON’S
MOTION FOR PARTIAL
SUMMARY JUDGMENT ON THE
GEO GROUP, INC’S
AFFIRMATIVE DEFENSES

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This matter comes before the Court on Plaintiff’s Motion for Partial Summary Judgment

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on the GEO Group Inc.’s (“GEO”) Affirmative Defenses (Dkt. 183) and GEO’s motion to defer

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or strike the State’s motion for summary judgment pursuant Fed. R. Civ. P. 56 (d) (Dkt. 188).

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The Court has considered the pleadings filed in support of and in opposition to the motions and

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the file herein.

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This case arises out of GEO’s alleged failure to compensate immigration detainees at the

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Northwest Detention Center (“NDC”), a private detention center, in accord with the Washington

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Minimum Wage Act (“MWA”). Dkt. 1. The State now moves for summary judgment dismissal

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of GEO’s affirmative defenses of laches, unclean hands, and failure to join necessary parties (the
ORDER ON WASHINGTON’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE GEO GROUP,
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Case 3:17-cv-05806-RJB Document 202 Filed 05/13/19 Page 2 of 11

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Department of Homeland Security and U.S. Immigration and Customs Enforcement (collectively

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“ICE”) and the Washington State Department of Labor & Industries (“L & I”)). Dkt. 183. GEO

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moves for a delay in the motion for summary judgment’s consideration to complete discovery.

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Dkt. 188. For the reasons provided below, GEO’s motion to delay consideration of the motion

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(Dkt. 188) should be denied, and the State’s motion (Dkt. 183) should be granted. GEO’s

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affirmative defenses of laches, unclean hands, and failure to join necessary parties, should be

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dismissed.
I.

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RELEVANT FACTS AND PROCEDURAL HISTORY

A. FACTS

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GEO is a private corporation that has owned and operated the NWDC, a 1,575-bed detention

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facility in Tacoma, Washington, since 2005. Dkt. 156, at 8-9. GEO operates the NWDC based on

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a contract with ICE. Dkts. 16-2, and 19. Under this contract, GEO provides “detention

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management services including the facility, detention officers, management personnel,

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supervision, manpower, training certifications, licenses . . . equipment, and supplies” for

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immigration detainees awaiting resolution of immigration matters. Dkt. 19, at 49. GEO is also

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required by the contract to manage a Voluntary Work Program (“VWP”). Dkt. 19, at 86.

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Detainees who participate in the VWP collect and distribute laundry, prepare and serve food,

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clean, paint interior walls, and use electric sheers to cut hair. Dkt. 184-1, at 8-19. GEO pays

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detainees who participate in the VWP at $1 per day. Dkt. 156, at 10. In accord with the contract

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with ICE, GEO agreed to comply with “[a]pplicable federal, state and local labor laws and

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codes.” Dkt. 19, at 48.

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B. PROCEDURAL HISTORY

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On September 20, 2017, the State filed this case in Pierce County, Washington Superior

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Court. Dkt. 1-1. The Complaint maintains that the GEO-ICE Contract at least allows for, if not

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requires, GEO to compensate detainees working in the VWP commensurate with the State

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MWA. Id., at ¶¶3.3, 3.4, 5.1-6.6. The State alleges that GEO has been unjustly enriched by

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compensating detainees below that required by state law. Id. In its “quasi-sovereign interest,”

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the State makes a claim against GEO for unjust enrichment, and seeks: (1) an order requiring

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GEO to disgorge its unjust enrichment from compensating detainees below the minimum wage,

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(2) declaratory relief that GEO is an “employer” subject to the MWA when managing detainee

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employees, and (3) injunctive relief for GEO to be enjoined from paying detainees less than the

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minimum wage. Id.
In its Answer, GEO makes a counterclaim for unjust enrichment, seeks declaratory and
injunctive relief, and asserts thirteen affirmative defenses. Dkt 34.
On February 28, 2018, GEO’s counterclaim for unjust enrichment was dismissed. Dkt. 44.

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Further, State’s motion to strike the affirmative defenses of laches, unclean hands, failure to join

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L & I and ICE (all three of which are the subject of the present motion), and ripeness,

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justiciability, and a portion of the offset defense, was denied without prejudice; no finding was

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made as to the affirmative defense of preemption. Id. The remaining affirmative defenses were

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stricken. Id.

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On April 26, 2018, GEO’s motion to dismiss for failure to join ICE was denied. Dkt. 58.

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The Order found that ICE was not a necessary or indispensable party to the case. Id. Complete

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relief could be accorded to the parties in the case and ICE did not have a legally protected

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interest. Id. GEO’s alternative motion, that ICE be added as a defendant was also denied. Id.

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C. PENDING MOTIONS

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The State now moves for summary judgment on the affirmative defenses of laches, unclean

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hands, and failure to join ICE and L & I. Dkt. 183. GEO responds and moves, pursuant to Rule

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56 (d), that the motion for summary judgment should either be denied, or its consideration

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deferred until the close of discovery. Dkt. 188. It argues that even if the motion is considered

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now, it should be denied because there are issues of fact as to the affirmative defense of laches,

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unclean hands and the failure to join ICE. Id. In reply, the State argues that the motion should

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be considered now, and that the motion should be granted. Dkt. 193.

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II.

DISCUSSION

A. SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, the discovery and disclosure materials

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on file, and any affidavits show that there is no genuine issue as to any material fact and that the

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movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c). The moving party is

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entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient

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showing on an essential element of a claim in the case on which the nonmoving party has the

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burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue

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of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find

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for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

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(1986)(nonmoving party must present specific, significant probative evidence, not simply “some

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metaphysical doubt.”). See also Fed. R. Civ. P. 56 (d). Conversely, a genuine dispute over a

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material fact exists if there is sufficient evidence supporting the claimed factual dispute,

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requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors

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Association, 809 F.2d 626, 630 (9th Cir. 1987).

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The determination of the existence of a material fact is often a close question. The court

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must consider the substantive evidentiary burden that the nonmoving party must meet at trial –

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e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect.

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Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor

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of the nonmoving party only when the facts specifically attested by that party contradict facts

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specifically attested by the moving party. The nonmoving party may not merely state that it will

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discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial

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to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra).

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Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not

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be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).
B. MOTION TO DEFER MOTION FOR SUMMARY JUDGMENT UNDER FED. R.
CIV. P. 56 (d)

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Under Fed. R. Civ. P. 56 (d):
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If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition [to a motion for summary
judgment], the court may: (1) defer considering the motion or deny it; (2) allow
time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.

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“A party seeking additional discovery under Rule 56 (d) must explain what further discovery
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would reveal that is essential to justify its opposition’ to the motion for summary judgment.”
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Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018)(cert. denied, 139 S. Ct. 1222
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(2019)(internal quotation marks and citation omitted). “In particular, the requesting party must
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show that: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further
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discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose
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summary judgment.” Id. (internal quotation marks and citation omitted).
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GEO’s motion to deny as premature, or delay consideration of, the motion for summary

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judgment until discovery is complete - six weeks from now - (Dkt. 188) should be denied. GEO

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has failed to set forth “the specific facts it hopes to elicit from further discovery.” The

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information GEO states it seeks is general in nature. It has not set stated that the “facts sought

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exist.” Further, GEO has not demonstrated that the “sought-after facts are essential to oppose

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summary judgment.” Moreover, this case was filed a year and a half ago; extensive discovery

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has already taken place. “A party seeking to delay summary judgment for further discovery must

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state what other specific evidence it hopes to discover and the relevance of that evidence to its

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claims.” Stevens, at 678. GEO has failed to do so here. The motion for partial summary

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judgment on the affirmative defenses should be considered.
C. AFFIRMATIVE DEFENSE OF LACHES

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1. Applicability to the State

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The State asserts that the laches defense should be dismissed because state enforcement

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actions are not subject to laches. Dkt. 183. GEO argues that under Lopp v. Peninsula School

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District 401, 90 Wn.2d 757 (1978), the public interest nature of the lawsuit alone does not bar

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application of laches.

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The doctrine of laches is an equitable defense. King Cty. v. Taxpayers of King Cty., 133

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Wn.2d 584, 642 (1997). “Generally, equitable defenses may not be asserted against

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governmental entities if their application would interfere with the proper exercise of

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governmental duties or if the act relied upon is ultra vires.” Hous. Auth. of Cty. of King v. Ne.

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Lake Washington Sewer & Water Dist., 56 Wn. App. 589, 593 (1990)(as amended, 789 P.2d 103

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(Wash. Ct. App. 1990); City of Mercer Island v. Steinmann, 9 Wn. App. 479 (Wash. Ct. App.

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1973).

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The affirmative defense of laches asserted here should be dismissed because the State’s

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case resulted from “a proper exercise of governmental duties.” Hous. Auth. of Cty. of King, at 593.

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The State filed its action to enforce Washington’s minimum wage laws pursuant to Washington’s

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“quasi-sovereign interest in protecting the health, safety, and well-being of its residents.” Dkt. 1-

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1. GEO fails to provide a basis to reject the general principal that equitable defenses, like laches,

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do not apply to the sovereign here. GEO’s citation to Lopp is unhelpful; Lopp was an action by a

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private individual who asserted that he was protecting the public interest. This is an enforcement

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action by a state of its own state laws. Lopp holding, that “laches can sometimes be a bar even to

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a public interest lawsuit,” does not provide the authority to find that laches should be available to

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bar the State’s case here.

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Even if laches were available to bar an action brought by the State to enforce state law for

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the benefit of its residents, the affirmative defense of laches should still be dismissed in this case.

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2. Laches

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In Washington, a defendant asserting a laches defense must prove the following

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elements:
(1) knowledge or reasonable opportunity to discover on the part of a potential
plaintiff that [they have] a cause of action against a defendant; (2) an
unreasonable delay by the plaintiff in commencing that cause of action; and (3)
damage to the defendant resulting from the unreasonable delay.

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King Cty. v. Taxpayers of King Cty., 133 Wn.2d 584, 642 (1997). “In determining whether the
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delay was inexcusable, a court may look to a variety of factors including similar statutory and
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rule limitation periods. But the main component of the doctrine is not so much the period of
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delay in bringing the action, but the resulting prejudice and damage to others.” Clark Cty. Pub.
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Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 848–49 (2000).
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GEO has failed to point to genuine issues of material fact on its laches defense. While

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both parties agree that the State had knowledge that it had a cause of action, at least by March of

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2014, GEO has failed to point to issues of fact that there was an unreasonable delay in the State’s

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bringing this action. The State points to emails from local law professors and immigration

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lawyers to the Governor’s Office, to support its assertion that it became aware of GEO’s VWP

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payments of $1 to detainees in March 2014. Dkts. 131, at 25-26. In response to this motion,

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GEO maintains that one of its lawyers emailed a state representative in 2009 with a Detainee

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Handbook about the NWDC as an attachment. Dkt. 188. Aside from raising concerns under

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Washington Rule of Professional Conduct 3.7, “Lawyer As Witness,” GEO makes no showing

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that information given to a single legislator should be imputed to members of the state’s

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executive branch, the branch charged with enforcing state law. GEO has failed to show that

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there are issues of fact as to when the State first became aware of GEO’s $1-a-day for detainee

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workers’ policy. GEO has failed to show that the length of time the State waited - three and one-

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half years between when it had knowledge of the policy and when it filed this lawsuit - was “an

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unreasonable delay,” particularly because the undersigned has already held that no statute of

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limitation applies to the State’s action here. Dkt. 44, at 9 (citing RCW 4.16.160, “there shall be

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no statute of limitation to actions brought in the name of or for the benefit of the state, and no

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claim of right predicated upon the lassoes of time shall ever be asserted against the state”).

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Moreover, GEO fails to point to genuine issues of fact as to whether it was damaged by the

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length of time it took the State to bring this case. GEO asserts generally that it may suffer

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evidentiary prejudice because of the potential of lost evidence or degradation of witnesses’

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memories. Dkt. 188. This argument is mere speculation and is insufficient to show that GEO

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suffered prejudice. Further, GEO maintains that it was economically prejudiced due to the

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State’s delay because it continued to contract with ICE. Dkt. 188. This does not provide

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sufficient facts of actual prejudice. The affirmative defense of laches should be dismissed.

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D. AFFIRMATIVE DEFENSE OF UNCLEAN HANDS

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The State moves for summary judgment on GEO’s affirmative defense of unclean hands.

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GEO maintains that the State is not entitled to relief in this case because it has “unclean hands.”

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“It is well settled that a party with unclean hands cannot recover in equity.” Miller v. Paul

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M. Wolff Co., 178 Wn. App. 957, 965 (2014). “Those who act unjustly or in bad faith are

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deemed to act with unclean hands.” Id. “The authorities are in accord that the ‘clean hands’

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principle does not repel a sinner from courts of equity, nor does it disqualify any claimant from

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obtaining relief there who has not dealt unjustly in the very transaction concerning which he

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complains.” J.L. Cooper & Co. Anchor Securities Co., 9 Wash.2d 45 (1941). Accordingly,

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“[f]raud or inequity practiced against a third person, who does not complain, does not close the

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doors of equity to a plaintiff guilty of no inequity as against a defendant.” McKelvie v. Hackney,

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58 Wn.2d 23, 32 (1961).

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GEO’s affirmative defense of unclean hands should be dismissed. GEO fails to point to

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any evidence that the State’s conduct in connection with GEO was reprehensible. Instead, GEO

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focuses on the State’s treatment of and payments to inmates in State facilities. The State’s

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treatment of its inmates is not relevant to GEO’s affirmative defense of unclean hands against the

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State’s case, which is brought to protect the State’s and its residents’ rights. Furthermore, and

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most importantly, the State’s payments to inmates is based on statutory authority, which is not

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the case with GEO’s payments to detainees. The State’s motion for summary judgment on this

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affirmative defense should be granted.

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E. AFFIRMATIVE DEFENSE FAILURE TO JOIN ICE AND L & I

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The State moves for summary judgment on GEO’s affirmative defense of failure to join ICE

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and L & I as defendants. Dkt. 183. While GEO opposes the motion to dismiss the defense as it

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relates to ICE, GEO failed to respond to the motion for summary judgment on the affirmative

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defense of failure to join L & I. Dkt. 188. GEO argues that its affirmative defense should not be

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dismissed because ICE is a necessary party with protectable interests at issue. Id.

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The State’s motion for summary judgment on these affirmative defenses should be granted.

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GEO makes no showing that L & I is an indispensable or necessary party. Over a year ago, on

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April 26, 2018, GEO’s motion to dismiss for failure to join ICE was denied. Dkt. 58. The Order

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found that ICE was not a necessary or indispensable party to the case. Id. It held that complete

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relief could be accorded to the parties in the case and ICE did not have a legally protected

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interest. Id. The reasoning of that order (Dkt. 58) is adopted here. GEO offers no basis to

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change that decision. To the extent that GEO intends this response to be a motion for

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reconsideration of that April 26, 2018 order, it is untimely under Local Rule W.D. Wash. 7 (h)(2)

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and should be denied. Local Rule 7 (h)(2)(providing that motions for reconsideration “shall be

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filed within fourteen days after the order to which it relates is filed”). GEO’s affirmative defense

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of failure to join ICE and L & I should be dismissed.
III.

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Therefore, it is hereby ORDERED that:
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ORDER

GEO’s motion to defer or deny the State’s motion for summary judgment
pursuant Fed. R. Civ. P. 56 (d) (Dkt. 188) IS DENIED;

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Washington’s Motion for Partial Summary Judgment on the GEO Affirmative
Defenses (Dkt. 183) IS GRANTED; and

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o GEO’s affirmative defenses of laches, unclean hands, and failure to join

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necessary parties, the Department of Homeland Security and U.S.

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Immigration and Customs Enforcement and the Washington State

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Department of Labor & Industries, ARE DISMISSED.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

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to any party appearing pro se at said party’s last known address.
Dated this 13th day of May, 2019.

A
ROBERT J. BRYAN
United States District Judge

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