Evans v. Heimann et al

Filing 47

ORDER STAYING CASE pending a final judgment in the state court action; 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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THOMAS LEE EVANS,

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CASE NO. C18-5473 BHS
Plaintiff,

v.

ORDER

BRIAN HEIMANN, et al.,
Defendants.

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THIS MATTER is before the Court on Defendant Pierce County’s Motion to Dismiss.
[Dkt. # 9]. Plaintiff Evans was arrested at his Roy, Washington home in June 2015. He claims he
hit his head on the door when he was handcuffed and loaded into the deputies’ vehicle on the

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way to jail, and that his requests for medical assistance were ignored. He was released three days
later and his wife took him to the hospital, where he was diagnosed with a blood clot, and then a
stroke. He remained hospitalized for ten days. Evans was not charged with a crime.
Two years later Evans sued the deputies, their superiors, the jailors and the jail medical
providers1 in Pierce County Superior Court, asserting a variety of state law tort claims (false

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The defendants in the first action are Paul Pastor, Rob Mesko, Patti Jackson-Kidder,
Miguel Balderrama, their respective spouses as John and Jane Does, Pierce County, Brian
Heimann, Bill Foster, Pete Turner, Martin Zurfluh, their respective spouses as Jane Does,
Correct Care Solutions, LLC, and additional unidentified and partially identified Pierce County

ORDER - 1

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arrest, negligence, conspiracy, and negligent hiring, training, and retention). The defendants read

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the complaint as asserting federal Section 1983 claims against them, and removed the case to this

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Court. See Evans v. Pastor et al., No. 16-cv-6046RBL, Dkt. # 1.
Evans moved to remand (and for sanctions), arguing that he had intentionally not asserted

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any federal claims. See Dkt. # 14 in that case. This Court remanded the case to state court on that
basis, and declined to award sanctions. See Dkt. # 23 in that case.
Six months later, Evans sued here, asserting only Section 1983 claims, claiming the same

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defendants violated his rights under the First, Fourth, Sixth, Eight, and Fourteenth Amendments.
This new complaint arises out of the same incident relies on the same facts. Dkt. # 1. Evans
purports to maintain separate, parallel actions, despite the fact he obviously could have asserted
all of his claims in one action, in either court.

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Defendant Pierce County seeks dismissal: (1) for lack of subject matter jurisdiction under

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the “first to file” rule, (2) for failure to state claim based on impermissible “claim splitting,” or

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(3) application of the Colorado River doctrine. It argues it is fundamentally unfair to require

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them to defend two lawsuits arising from the same incident for no legitimate reason.

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A.

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FRCP 12(b)(1)
Pierce County argues first that the Court lacks subject-matter jurisdiction, and should

dismiss under the “first-to-file rule,” which “allows a district court to stay proceedings if a
similar case with substantially similar issues and parties was previously filed in another district
court.” Kohn Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1239 (9th Cir. 2015)

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(citing Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982)).

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Correctional Officers, Jail Medical Staff, and their respective spouses as John and Jane Does. See
Dkt. # 1 in that case.

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As Pierce County admits, the first-to-file rule applies to similar cases filed in different

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(federal) district courts; it does not address the situation here, where the plaintiff seeks to

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maintain simultaneous state and federal case arising out of the same set of operative facts.
The Supreme Court has determined that when parallel suits are pending in state and

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federal court, a Court may consider stay or dismissal under the Colorado River doctrine which
instead considers the “interests of wise judicial administration” in such cases. See Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 815 (1976).

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The “first to file rule does not apply to deprive the Court of subject matter jurisdiction
and the Motion to Dismiss under Rule 12(b)(1) is DENIED.
B.

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FRCP 12(b)(6).
Pierce County also seeks dismissal for failure to state a claim under Fed. R. Civ. P.

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12(b)(6). It argues2 that Evans has impermissibly split his claims, and that the case warrants the

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rare application of the Colorado River doctrine.

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1.

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Pierce County argues that because Evans has impermissibly sought to split his claims

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Claim-Splitting.

between state and federal courts, this second action should be dismissed. It argues that judicial
economy and fairness preclude this strategy, particularly where (as here) Evans could have
amended his first complaint in either court to add these federal claims, and rather boldly sought
sanctions for the improper removal of a case in which he specifically declined to assert such
claims.

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Pierce County also makes the more traditional Rule 12(b)(6) argument, that Evans’
complaint does not articulate facts plausibly supporting a claim against it. See Ashcroft v. Iqbal,
556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). Because the motion
is resolved on other grounds, the Order will not address this argument.

ORDER - 3

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It argues that neither federal nor Washington courts permit what Evans has attempted to

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do here. It urges the Court to determine that the claims are duplicative, and if so, to exercise in its

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discretion to impose an appropriate remedy. See Clements v. Airport Authority of Washoe

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County, 69 F.3d 321, 328 (9th Cir. 1995); Landry v. Luscher, 95 Wn. App. 779, 780 (1999). It
argues that a court can dismiss a duplicative lawsuit (with or without prejudice), based on an
analysis similar to a res judicata analysis if there had been a final judgment in one of the cases.
See Adams v. California Dep’t of Health Servs., 487 F.3d 684, 688-93 (9th Cir. 2007) (overruled

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on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008) (in the claim splitting context,
the appropriate inquiry is whether, assuming the first suit was already final, the second suit
would be precluded).
Under res judicata, “a final judgment on the merits of an action precludes the parties or

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their privies from re-litigating issues that were or could have been raised in that action.” Allen v.

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McCurry, 449 U.S. 90, 94 (1980). The doctrine of res judicata bars a party from re-filing a case

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where three elements are met: (1) identity of claims; (2) final judgment on the merits; and (3)

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identity or privity between parties. Frank v. United Airlines, Inc., 216 F.3d 845, 850, n. 4 (9th

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Cir. 2000); Thompson v. King Co., 163 Wash. App. 184 (2011).

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It is clear that if the state court action was final (in either parties’ favor), that judgment
would have preclusive effect here (and vice versa). Evans does not address this issue in his
Response. He argues that the motion’s “chief weakness” is that it ignores the fact that this Court
does not have original jurisdiction over his state tort claims. That argument itself ignores that the

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court does (or would) have supplemental jurisdiction over his state law claims under 28 U.S.C. §
1367(a)—which it exercises routinely in all manner of cases, including excessive force cases.

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ORDER - 4

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The state court certainly would have jurisdiction over the § 1983 claims (though they are subject

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to timely removal).

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This is not a case where Evans was forced to split his suit in this manner, as is the case
where a state or federal court has exclusive jurisdiction over a claim, and the pursuit of that claim
would preclude the pursuit of some additional claim. See United Parcel Service, Inc. v. Cal.
Public Utilities Com’n., 77 F.3d 1178, 1186 (9th Cir. 1996) (plaintiff would lose its opportunity
to adjudicate state law claims if it filed only in federal court). Instead, he either does not

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understand that he can assert all of his claims in one case, or that he is seeking to split his claims
for strategic reasons—either to double his chances of winning, or to seek a double recovery. But
unless he can try and complete the cases at the exact same time, the one that results in a

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judgment first will immediately have preclusive effect on the second case, regardless of how

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much effort the parties have put into that second case, or how close it is to resolution.

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For this reason, Evans’ additional argument that his state and federal claims are “distinct”

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is not on point and is not persuasive. The test is whether the claims in the second suit could (and

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therefore should) have been brought in the first. The answer to that question is yes, of course.

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Once one of the cases becomes final, the second one is duplicative and subject to dismissal.

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Evans has not articulated a reason for the Court to endorse and preside over a wasteful second
litigation, and the Court is not aware of one.
Evans has impermissibly split his claims. The remedy will be addressed after a discussion
of the parties’ other point of contention, the application of the Colorado River doctrine.

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2.

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The Colorado River doctrine.

Pierce County also argues for dismissal under the Colorado River doctrine. It again
emphasizes that Evans fought removal of his first case, but he could have instead amended his
complaint there to add his § 1983 claims to the first case after removal.

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Evans reiterates that his theories of recovery are separate, even if the facts underlying

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them are identical. In the absence of “exceptional circumstances,” the pendency of an action in

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state court is “not a bar to proceedings concerning the same matter in the Federal court having

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jurisdiction.” Sprint Commc’ns, Inc., 571 U.S. 69, 73 (2013) (quoting Colorado River Water
Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976)). Evans correctly articulates the factors that
this Court weighs to determine whether the requisite “exceptional circumstances” warrant
dismissal in light of a concurrent state action:

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The Ninth Circuit recognizes the following eight factors to assess the
appropriateness of a stay or dismissal under the Colorado River doctrine: “(1)
which court first assumed any jurisdiction over any property at stake; (2) the
inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation;
(4) the order in which the forums obtained jurisdiction; (5) whether federal law or
state law provides the rules for a decision on the merits; (6) Whether the state
court can adequately protect the rights of the federal litigants; (7) The desire to
avoid forum shopping; (8) whether the state proceedings will resolve all of the
issues before the federal court.”

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[Dkt. # 23 at 6, citing R.R. Street v. Transport Insurance, 656 F.3d 966, 978 (9th Cir. 2011)].

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The Supreme Court has never intimated acceptance of the view that the decision of a

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party to spurn removal and bring a separate suit in federal court invariably warrants the stay or

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dismissal of the suit under the Colorado River doctrine. Gulfstream Aerospace Corp. v.

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Mayacamas Corp., 485 U.S. 271, 290 (1988) (emphasis added). Nevertheless, it is clear that at
least seven of the eight factors favor a stay or dismissal of this second action, and none favors
permitting this course.
It is undisputed there are parallel proceedings, and that Evans is intentionally engaging in

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expensive, time-consuming piecemeal litigation. It is clear that the state court first assumed
jurisdiction, and could have handled all claims in one case. This second case is a form of forum
shopping (or is an attempt at a second bite at the apple). Because Evans asserts state and federal

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ORDER - 6

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claims, the law of both forums applies to different parts of the case, but both cases and all claims

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are based on the exact same incident and involve the exact same parties, and each case will

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involve discovery and perhaps a trial into the actual facts of the incident. The jurisdiction of

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either court is amply broad to handle all claims. The state court could protect the rights of the
parties as to all claims, (as could this court). And, for the res judicata reasons discussed above, if
the state court reaches final judgment before this court, the first-filed case will resolve all of the
issues before this court. Furthermore, because the Colorado River doctrine is motivated by “wise

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judicial administration,” the duplication of effort by the courts and the parties weighs in favor of
a stay. Indeed, Evans has not articulated any factor or reason for permitting him to pursue his
claims in this fashion.
There is nothing unusual about his case other than the fact that Evans seeks to split his

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claims into two lawsuits, for reasons that remain unclear. Courts in this District routinely try

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cases involving both state law false arrest and claims and federal § 1983 excessive force claims.

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State courts can also try such cases, if the defendants do not timely remove them based on the

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presence of federal claims. There was no impediment to Evans asserting all of his claims in the

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first case.

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This Court will not waste its own resources or the parties’ in conducting discovery,
motion practice, and perhaps a trial over a case that is factually identical to a state court case
filed almost 18 months ago.

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ORDER - 7

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In an abundance of caution, however, the Court will not yet dismiss this parallel,

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duplicative action. It will STAY this case pending a final judgment in the state court action. The

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Clerk shall enter an order STATISTICALLY TERMINATING the case, and the parties shall

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keep the court advised as to the progress of the state law litigation, including its resolution.
IT IS SO ORDERED.
Dated this 28th day of November, 2018.

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A

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Ronald B. Leighton
United States District Judge

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ORDER - 8