The GEO Group Inc v City of Tacoma
Filing
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ORDER granting in part 37 the City's Motion for Partial Summary Judgment; granting 43 Defendant's Motion to Amend; denying GEO's alternate Motion for a Continuance; Counsel is directed to e-file their Amended Complaint; 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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THE GEO GROUP INC,
Plaintiff,
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v.
CASE NO. C18-5233RBL
ORDER
CITY OF TACOMA,
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Defendant.
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THIS MATTER is before the court on Defendant City of Tacoma’s Motion for Partial
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Summary Judgment on Damages [Dkt. # 37], and on Plaintiff GEO Group’s Motion to Amend
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its Complaint [Dkt. # 43].
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GEO owns and operates the Northwest Detention Center (NWDC), a 120,000 square foot
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private detention facility on the Tacoma tide flats. It does so under a contract with the United
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States Immigration and Customs Enforcement agency (ICE). NWDC opened in 2004. When it
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was built, the NWDC was permitted outright under Tacoma’s Municipal Zoning Code. The
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NWDC has been upgraded or expanded several times, most recently in 2011.
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In 2017 the Tacoma City Council passed an Interim Emergency Ordinance “banning”
(GEO’s characterization) private correctional facilities in Tacoma, and permitting public
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correctional facilities only with a Conditional Use Permit. The final Ordinance was adopted in
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February 2018.
A month later, GEO sued, arguing that the politically-motivated zoning law change was
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unconstitutional. It asserted 1983 claims (Supremacy Clause and Fourteenth Amendment due
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process and equal protection), and state constitutional challenges to the Ordinance. It sought a
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Declaratory Judgment that the Ordinance is invalid, and an injunction on its application to the
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NWDC. It also sought § 1983 compensatory damages for “diminution of value, loss of business
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opportunity, loss of profits and goodwill.” [Dkt. # 1].
The City claims it has since been seeking discovery into GEO’s claimed damages, before
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GEO moved to bifurcate the liability and damages aspects of the case [Dkt. # 17] and after that
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motion was denied [Dkt. # 24]. GEO voluntarily withdrew a portion of its damages claim,
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seeking only compensatory damages incurred “through the permitting and approval procedures
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the unlawful ordinance requires of GEO.” GEO informed the City that it would amend its
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complaint, and it now seeks to do so. [See Dkt. # 43-1]
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Meanwhile, GEO’s responses to the City’s Requests for Admissions do not clarify that it
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seeks damages related only to increased permitting and development fees caused by the unlawful
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ordinance; GEO would not admit, for example, that it is not seeking § 1983 damages. Even its
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proposed1 amended complaint generally seeks § 1983 compensatory damages, “expressly
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excluding [only] any claim for damages based on interference with any contract between
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Plaintiff and ICE.” [Dkt. # 43-1 at 21]. It is apparent that GEO seeks to keep its damages options
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open, but it has provided only limited evidence2 of any actual damages.
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The City does not oppose amendment, but argues that the new complaint does not remedy the damages issues
raised in motion.
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GEO claims it has incurred $4,133 in costs and fees engaging contractors and architects to “prepare necessary site
studies and complete the comprehensive design work necessary for the required Conditional Use Permit” but it is
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The City’s Motion for partial summary judgment is an effort to pin down the actual
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compensatory damages that are in play, and exclude those that are not, either because GEO is not
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claiming them, or because GEO has provided no evidence in support of them. It argues that
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GEO’s new damages theory—that the City’s unconstitutional ordinance will increase the cost of
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obtaining the City’s approval for GEO’s recently contemplated expansion—is hypothetical. It
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has asked the Court to require GEO to produce evidence of any damages in advance of trial, like
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any other evidence, and now seeks a ruling that because there is no evidence of actual damage, it
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is entitled to summary judgment on GEO’s new or remaining damages claim.
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GEO responds that its damages will be incurred when (and if) it actually takes steps to
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improve or expand its facility, and argues that its damages will multiply as the project proceeds.
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The parties stipulated to an extension of various pre-trial deadlines and a continuance of the trial
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date three months ago. The expert disclosure date is July 10, the discovery deadline is September
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9, and the trial is six months away. GEO asks the Court to deny the motion or to grant it a new
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continuance under Fed R. Civ. P. 56(d)(1). It argues that the motion is premature, to which the
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City aptly responds that perhaps the damages claim is premature.
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Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
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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). In determining whether
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an issue of fact exists, the Court must view all evidence in the light most favorable to the
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nonmoving party and draw all reasonable inferences in that party’s favor. Anderson Liberty
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Lobby, Inc., 477 U.S. 242, 248-50 (1986) (emphasis added); Bagdadi v. Nazar, 84 F.3d 1194,
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not clear that all of the work reflected on the invoices was required only because the zoning changed. Any large
construction project would presumably require a contractor, an architect, a site plan, floor plans, drawings and the
like, whether a CUP is required or not.
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1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence
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for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The
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inquiry is “whether the evidence presents a sufficient disagreement to require submission to a
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jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.
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The moving party bears the initial burden of showing that there is no evidence which supports an
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element essential to the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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Once the movant has met this burden, the nonmoving party then must show that there is a
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genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the
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existence of a genuine issue of material fact, “the moving party is entitled to judgment as a
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matter of law.” Celotex, 477 U.S. at 323-24.
There is no requirement that the moving party negate elements of the non-movant’s case.
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Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). Once the moving party has met its
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burden, the non-movant must then produce concrete evidence, without merely relying on
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allegations in the pleadings, that there remain genuine factual issues. Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 248 (1986).
The City argues that GEO is expressly relying on its allegations, and not evidence, in
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support of its plausible, but so far unsupported, claim that the zoning change will make any
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expansion more expensive. GEO responds by citing a trio of cases that it claims demonstrate
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that such increased costs are recoverable under § 1983: Maytown Sand and Gravel, LLC v.
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Thurston County, 423 P.3d 223 (Wash. 2018); Pacific Shores Properties, LLC v. City of Newport
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Beach, 730 F.3d 1142 (9th Cir. 2013); and Bryan v City of Lakewood, 259 F.3d 996 (9th Cir.
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2000).
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But none of these cases support GEO’s claim that one who might someday be damaged
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by an unconstitutional zoning or permitting law can survive a pending summary judgment by
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relying only on the possibility of future damages. GEO claims that Maytown stands for the
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proposition that damages are available for forced compliance with an improper land use process.
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But the Washington Supreme Court held in Maytown that pre-litigation attorney fees incurred in
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the administrative land use process were not available as damages in a tortious interference case.
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423 P.3d at 249. It did not hold that a plaintiff’s ability to foresee added expenses if it decides to
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act in the future are currently recoverable, under § 1983 or any other theory.
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GEO cites Clark for the proposition that lost revenue is recoverable when it is caused by
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compliance with an unconstitutional ordinance. But the plaintiff adult cabaret owner there
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demonstrated that his gross biweekly revenue decreased from $3814 before the ordinance, to
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$1725 after he was forced to comply with it. Unlike GEO, Clark provided actual evidence of
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actual damage.
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Pacific Shores is only slightly more helpful. GEO cites it for the proposition that a
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plaintiff can recover diverted staff time and legal expenses spent complying with (in that case) an
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ordinance that unlawfully discriminated against the disabled. But Pacific Shores had actually
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incurred those costs (and had demonstrated that it had done so, in response to the City’s Motion
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for Summary Judgment) at the time the District Court erroneously dismissed its damages claim.
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Pacific Shores, 730 F.3d at 1166-67. Again, GEO has not done that in this case.
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The City emphasizes that the GEO’s damage claim is theoretically viable, but for the fact
it remains wholly theoretical; there is no evidence of any current actual damage.
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GEO’s alternate request for additional time to “develop” its damages evidence is at first
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blush the correct response to a “premature” motion for summary judgment. But GEO does not
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seek time to gather its evidence or to compile it into an expert report; it needs time to actually
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incur what it claims will be quickly escalating costs associated with expanding its facility under
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the new zoning ordinance. Implicit in its request is the admission that it has not yet done so. The
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City amply demonstrates that GEO is many steps from having an actionable permit-based
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damages claim. GEO’s current, potential damages claim, flowing from a permit it has not yet
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applied for, and which is not the subject of any final decision, are not recoverable. See Kinzli v.
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City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir. 1987).
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Furthermore, GEO’s primary claim is that the Ordinance is unconstitutional, and its
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primary claim for relief is a Declaration that the City cannot enforce the Ordinance against GEO
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(and a permanent injunction against doing so). If GEO prevails on this core claim, it will not
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have to process any future expansion under the new Ordinance, and it will not ever have to incur
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the additional costs associated with doing so. Delaying the case again so that GEO can incur and
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document damages, just to have a viable damage claim at trial, is of no benefit to anyone. It is
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much more efficient to resolve the Ordinance’s constitutionality in the shorter term.
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The City’s Motion for Summary Judgment [Dkt. # 37] on GEO’s § 1983 damages claim
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is GRANTED and that claim is DISMISSED with prejudice. GEO’s Motion to Amend [Dkt. #
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43] is Granted, and GEO shall file its proposed amended complaint [Dkt. 43-1], but that new
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complaint does not alter the analysis of its damages claim. GEO’s alternate Motion for a
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Continuance under Rule 54(d)(1) is DENIED.
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IT IS SO ORDERED.
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Dated this 2nd day of July, 2019.
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A
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Ronald B. Leighton
United States District Judge
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