The opinion of the court was delivered by: Marsha J. Pechman United States District Judge
ORDER ON SPECIAL MOTION TO STRIKE PURSUANT TO WASHINGTON ANTI-SLAPP ACT & FRCP 12(C) MOTION TO DISMISS
The above-entitled Court, having received and reviewed
1. Defendants Shea and Simmons's Special Motion to Strike Pursuant to the Washington Act Limiting Strategic Lawsuits Against Public Participation (Anti-SLAPP Act) & Fed. R. Civ. P. 12(c) Motion to Dismiss (Dkt. No. 11)
2. Plaintiff's Response to Special Motion to Strike and Motion to Dismiss (Dkt. No. 19)
3. Defendants Shea and Simmons's Reply in Support of Special Motion to Strike and Motion to Dismiss (Dkt. No. 23) and all attached declarations and exhibits, makes the following ruling:
IT IS ORDERED that Plaintiff's claims against Defendants Shea and Simmons for defamation, defamation by implication and false light are STRICKEN pursuant to RCW 4.24.525 (the Washington Anti-SLAPP statute).
IT IS FURTHER ORDERED, pursuant to RCW 4.24.525(6)(a), that Defendants Shea and Simmons are each awarded their costs of litigation and reasonable attorneys' fees incurred in connection with this motion and additionally are awarded the mandatory statutory penalty of $10,000 each. Defendants' counsel shall submit their requests for costs and reasonable attorneys' fees within 7 days of this order; Plaintiff shall submit any response to those requests within 7 days of the filing of the requests.
IT IS FURTHER ORDERED that, pursuant to Plaintiff's motion at oral argument, the claim for wrongful interference with business expectancy is DISMISSED with prejudice.
IT IS FURTHER ORDERED that Defendants' FRCP 12(c) motion for judgment on the pleadings is GRANTED for the civil harassment claim; the Court further finds that leave to amend would be futile and orders this claim DISMISSED with prejudice. The Court notes that Plaintiff's defamation claims are subject to dismissal under FRCP 12(c) for their lack of specificity, and that amendment of the complaint would be futile based on the Court's decision to strike those claims pursuant to RCW 4.24.525.
Plaintiff Castello and Defendants Shea and Simmons (Defendants) are all employed as paramedic/firefighters for the Seattle Fire Department (SFD). Defendants are among the parties named in a state court lawsuit initiated by Plaintiff which was removed to federal court (on federal question grounds) in October 2010. The causes of action alleged against Defendants include claims for defamation, defamation by implication, false light, civil harassment and wrongful interference with business expectancy*fn1 . Complaint ¶¶ 10.3, 11.7, 12.7.
According to the parties' briefing, the origins of this litigation stretch back to August 2008, when Defendants submitted a written complaint to Deputy Chief Duggins communicating their concerns about a letter Plaintiff had circulated in the workplace. Simmons Decl., Ex. B. The complaint was investigated and resulted in an Official Reprimand for disorderly conduct against Plaintiff in November 2008. Id., Ex. D, p. 2. Further activity by Plaintiff (the mailing of a survey to the homes of his co-workers, including Defendants) resulted in the submission of another written complaint by Defendant Simmons (Id., Ex. E) and a phone call by Defendant Shea to the Fire Chief (Shea Decl., ¶ 6). When Plaintiff continued to solicit co-workers regarding the survey despite being ordered by the Chief to desist (see Simmons Decl., Ex. N, p. 1), Defendant Simmons filed an e-mail complaint with her superiors (Id., Ex. F) and Defendant Shea communicated her concern to the Deputy Chief (Shea Decl., ¶ 7). These complaints were investigated by the City of Seattle Equal Employment Opportunity Office, which concluded in separate reports that, while Plaintiff's actions did not constitute harassment or retaliation (Simmons Decl., Ex. D), they did constitute misconduct. Id., Ex. N. No disciplinary action was taken concerning Plaintiff in the wake of these reports. Simmons Decl., ¶ 11.
In June 2009, Defendant Shea sent an e-mail to the Deputy Chief outlining her concerns for her personal safety and the morale of the battalion based on her observations of Plaintiff's behavior. Shea Decl., Ex. B. The Deputy Chief, citing reports of "harassment" and "disruption" regarding Plaintiff, communicated his concerns to the Chief several days later. Simmons Decl., Ex. H. The following day Defendant Simmons submitted an "Urgent Safety Complaint" concerning Plaintiff to the Deputy Chief. Id., ¶¶ 16-17. The Chief responded by agreeing to investigate the Safety Complaint (Id., Ex. I) and placing Plaintiff on paid administrative leave pending a fit-for-duty evaluation. Id., Ex. L, p. 5. The following month, Plaintiff was declared to be psychiatrically fit for duty; Luhn Decl., Ex. 3.
On June 17, 2009, the day after Plaintiff was placed on administrative leave, he appeared at his workplace. Despite being informed that he was restricted from entering the work environment, Plaintiff remained onsite and the situation escalated to the point where the police were contacted. Simmons Decl. Ex. L, ¶¶ 25-28. These events (which were later incorporated into Defendant Simmons's Urgent Safety Complaint; Simmons Decl., ¶ 20) culminated in a disciplinary action against Plaintiff which he appealed to the City of Seattle Public Safety Commission (PSCSC). Following a hearing on the appeal, the PSCSC issued its decision upholding the disciplinary action (and referring to Plaintiff's behavior as "unacceptable, totally inappropriate, insubordinate" and "inexcusable;" Simmons Decl., Ex. L, ¶¶ 68-69). In the meantime, the investigation into the Urgent Safety Complaint concluded with a December 2009 report which substantiated the factual allegations made by Defendant Simmons, but (with the exception of the June 17 workplace incident) did not find that Plaintiff's actions constituted any violations of the Seattle Municipal Code. Id., Ex. K.
The following year, a local television news program (KOMO News) began looking into issues of unrest and low morale throughout SFD. A number of SFD workers, including Defendants, were interviewed. The investigation culminated in the broadcast of a story entitled "Whistle blowers fear Seattle Fire Department in trouble." A transcript of the broadcast was included as an exhibit to Defendants' briefing. Simmons Decl., Ex. M. Although the focus of the story concerned allegations about the SFD Chief, mention was made of the complaints regarding Plaintiff and the June 17 incident and portions of the Shea and Simmons interviews were played. Notably, Plaintiff was never mentioned by name in the broadcast. Id.
In August 2010, Plaintiff commenced this lawsuit. The portions targeting Defendants allude to two categories of communications: (1) their complaints to the investigators and command personnel of SFD and (2) their statements to KOMO News. It is Plaintiff's allegation that Defendants' speech in these circumstances constituted harassment (Complaint, ¶ 10.3), as well as defamation, defamation by implication and false light (Id., ¶ 11.7). Defendants have brought a dual-purpose motion, requesting that the claims against them be stricken in accordance with RCW 4.24.525 (the Washington Anti-SLAPP statute) and seeking judgment on the pleadings pursuant to FRCP 12(c).
RCW 4.24.510 and 4.24.525 (Anti-SLAPP Statutes)
For many years, Washington has had in effect a statute intended to curb strategic lawsuits against public participation; i.e., lawsuits which are targeted at communication intended to influence government action. This "Anti-SLAPP" statute had a fairly specific focus:
A person who communicates a complaint or information to any branch or agency of federal, state or local government . . . is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization.
In 2010, the Washington legislature enacted another Anti-SLAPP statute that not only broadened the scope of protected communication, but created a procedural device to swiftly curtail any litigation found to be targeted at persons lawfully communicating on matters of public or governmental concern. The types of speech protected by this wider-ranging version of the Anti-SLAPP were expanded into five categories:
a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;
b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;
c) Any oral statement made, or written statement or other document submitted, that is reasonably likely to encourage or to enlist public participation in an effort to effect consideration or review of an issue in a legislative, executive, or judicial proceedings or other governmental proceeding authorized by law;
d) Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue of public concern; or
e) Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition.
RCW 4.24.525(2). An activity qualifying under any of these categories is, by statutory definition, "an action involving public participation and petition" protected by this law. Id.
Additionally, the newer Anti-SLAPP statute created a right to bring a "special motion to strike any claim that is based on an action involving public participation and petition," an expedited procedure intended to expeditiously cut off any litigation found to be targeting this protected activity. RCW 4.24.525(4)(b). This provision assigns a moving party the initial burden of demonstrating by a preponderance of the evidence that the claim or claims concern an action involving public participation and petition. Id. Once that burden is met, the burden shifts to the Plaintiff to establish by clear and convincing evidence a probability of proving the claim or claims. Id. The statute ...