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Mason v. State

United States District Court, W.D. Washington, at Seattle

June 13, 2017

ELTON MASON, an individual, dba WASHINGTON STATE TRUCKING, a sole proprietorship, Plaintiff,
WASHINGTON STATE, a state governmental entity, WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, a political subdivision governmental entity; LYNN PETERSON, in her official and individual capacities, LINEA LAIRD, in her official and individual capacities, OFFICE OF MINORITY WOMEN BUSINESS ENTERPRISES, a subdivision governmental entity, SEATTLE TUNNEL PARTNERS, a Joint Venture Dragados, U.S.A., Tutor Perini Corporation, CHRIS DIXON, in his official and individual capacities, and RUSSELL STREADBECK in his official and individual capacities, Defendants.


          Thomas S. Zilly United States District Judge.

         THIS MATTER comes before the Court on defendants Seattle Tunnel Partners (“STP”), Chris Dixon, and Russell Streadbeck's (collectively the “STP Defendants”) motion to dismiss, docket no. 21, and defendants Washington State, Washington State Department of Transportation (“WSDOT”), the Office of Minority Women Business Enterprises (“OMWBE”), Lynn Peterson, and Linea Laird's (collectively, the “State Defendants”) joinder in the STP Defendants' motion to dismiss, [1] docket no. 23. Having reviewed the motion and all relevant filings, the Court enters the following Order.


         The following facts are set forth as alleged in the Complaint and the exhibits attached thereto.

         A. The Parties

         Plaintiff Elton Mason is an African American male and the sole owner and proprietor of Washington State Trucking (“WST”), a construction company specializing in trucking and excavation services and certified as a Disadvantaged Business Enterprise (“DBE”). Complaint, docket no. 1, ¶¶ 3.1 - 3.2. Defendant WSDOT is a state entity and political subdivision of the State of Washington responsible for overseeing highway construction projects. Id. at ¶ 3.6. Defendant Lynn Peterson is the Secretary of WSDOT and defendant Linea Laird is the Construction Division Head and Chief Engineer. Id. at ¶ 3.7 - 3.8. Defendant OMWBE is local state entity tasked with certifying small businesses owned and controlled by minorities, women, and other socially or economically disadvantaged individuals as DBEs. Id. at ¶ 3.9. Defendant STP is the Design-Build contractor for the Alaskan Way Viaduct project. Id. at ¶ 3.10. STP is a joint-venture between Dragados U.S.A. and Tutor Perini Corporation. Id. Defendant Chris Dixon is the Project Manager of STP in Seattle, Washington and defendant Russell Streadbeck is STP's Commercial Manager. Id. at 3.11 - 3.12.

         B. The Alaskan Way Viaduct Project

         The Alaskan Way Viaduct project is a federally funded project to build a new State Route 99 corridor through Seattle. Complaint, docket no. 1, Ex. 1 at 6. WSDOT is the owner of the project, id., and STP was the contractor awarded the work, Complaint, ¶ 3.10.

         The prime contract for the Alaskan Way Viaduct project establishes a DBE goal of 8% of the compensation payable to the Design-Builder. Complaint, ¶¶ 1.12, 4.45. Because the project involves large amounts of excavation and dirt removal, STP decided it would achieve a portion of the DBE goal through hauling services. Complaint, ¶ 4.47. Through a request for proposal process, STP selected Grady Excavating, Inc. (“Grady Excavating”), a female-owned, certified DBE construction firm which had submitted the lowest bid to perform the hauling work. Complaint, Ex. 1 at ECF p. 12. On July 6, 2012, Grady Excavating was decertified as a DBE. Complaint, ¶ 4.50. After learning of Grady Excavating's decertification, STP began a new request for proposal process that imposed additional requirements on bidders that were more burdensome than those imposed during the initial request for proposal, including requiring firms to own at least twenty trucks and to disclose certain personal and business financial information. Complaint, ¶¶ 4.52, 4.54.

         On August 12, 2012, STP met with several of the bidding firms to inform them that none of the bids had been successful and that STP intended to continue using Grady Excavating to perform the trucking work despite its decertification. Complaint, Ex. 1 at 14. OMA Construction, one of the certified DBEs in attendance at that meeting, began discussions with STP about why its bid had not been accepted given that it was the lowest bidder among the firms seeking to replace Grady Excavating. Id. After OMA agreed to lower its bid further, STP ultimately awarded OMA Construction the contract to replace Grady Excavating. Id.

         C. The Federal Highway Administration's Investigation

         On August 20, 2012, plaintiff filed a complaint with the Federal Highway Administration alleging that STP failed to use adequate good faith efforts to find another DBE to substitute for Grady Excavating and that WSDOT failed to oversee and adequately monitor STP's efforts to achieve the 8% DBE goal. Complaint, Ex. 1 at 7. On November 1, 2013, the Federal Highway Administration issued its report concluding that the procedures STP followed in replacing Grady Excavating did not conform to “good faith efforts requirements” and that WSDOT failed to oversee and adequately monitor STP's efforts to achieve the DBE goal. Id. at 17, 24.

         On January 13, 2014, as a result of STP's failures to put forth good faith efforts to meet the prime contract's DBE goal, WSDOT found that STP was in “breach of contract with WSDOT.” Complaint, ¶ 5.7. Sometime thereafter, WSDOT “lifted the breach from Defendant STP.” Id. at ¶ 5.8. On March 20, 2014, the Federal Highway Administration and WSDOT entered into a Conciliation Agreement addressing the findings in the Highway Administration's report. Complaint, Ex. 3 at 3.[2] Under the terms of the Conciliation Agreement, WSDOT agreed to undertake more intensive oversight of STP's efforts to meet the 8% DBE goal and to provide regular monthly progress reports to the Federal Highway Administration; hire a DBE Program Administrator and a DBE Program Coordinator; and take all appropriate actions against STP in the event the company failed to resolve the DBE compliance issues identified in the Highway Administration's report. Id. at 6-8.

         Plaintiff filed the instant lawsuit on February 7, 2017, alleging eleven separate causes of action under both State and Federal law relating to various aspects of the Alaskan Way Viaduct project.


         A. Legal Standard

         Although a complaint challenged by a Rule 12(b)(6) motion to dismiss need not provide detailed factual allegations, it must offer “more than labels and conclusions” and contain more than a “formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must indicate more than mere speculation of a right to relief. Id. A complaint may be lacking for one of two reasons: (1) the absence of a cognizable legal theory, or (2) insufficient facts under a cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In ruling on a motion to dismiss, the Court must assume the truth of the plaintiff's allegations and draw all reasonable inferences in the plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the Court need not accept as true allegations which contradict documents that are referenced in the complaint or that are properly subject to judicial notice. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). The question for the Court is whether plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The inquiry in a motion under Rule 12(c) is “functionally identical” to a motion made under Rule 12(b)(6). See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).

         B. Plaintiff's Claims

         The Court notes at the outset, that plaintiff's forty-one page complaint is ambiguously pleaded, making it exceedingly difficult to determine which factual allegations relate to which of plaintiff's eleven causes of action. The Court has made its best effort to make sense of plaintiff's allegations and to address them in the context of the claims to which they relate.

         1. First Cause of Action - Title VI Discrimination, 42 U.S.C. § 2000d (Against STP, Washington State, WSDOT, and OMWBE)

         42 U.S.C. § 2000d provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. A private individual may sue to enforce Title VI only in instances of intentional discrimination. Gamble v. Pac. Nw. Reg'l Council of Carpenters, No. C14-455 RSM, 2015 WL 3442561, at *5 (W.D. Wash. May 28, 2015) (citing Alexander v. Sandoval, 532 U.S. 275, 281 (2001)).

         Plaintiff's complaint appears to base his Title VI discrimination claim on allegations that he was the victim of intentional racial discrimination when: (1) STP initially awarded a contract to Grady Excavating, Inc., a female-owned, certified DBE construction firm, (the “Initial Contract”) Complaint, ¶ 4.48[3]; and (2) STP imposed a burdensome request for proposal process and ultimately selected OMA Construction, another minority-owned DBE, to assume the remainder of Grady Excavating's work on the project, (the “Replacement Contract”) id. at ΒΆ 4.52. Although the Complaint indicates that plaintiff's discrimination claim is against defendants STP, Washington State, WSDOT and OMWBE, plaintiff's opposition ...

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