United States District Court, W.D. Washington, at Seattle
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.
S. Zilly United States District Judge.
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,  docket no. 23. Having
reviewed the motion and all relevant filings, the Court
enters the following Order.
following facts are set forth as alleged in the Complaint and
the exhibits attached thereto.
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.
The Alaskan Way Viaduct Project
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.
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.
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.
The Federal Highway Administration's
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.
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
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.
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
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).
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.
First Cause of Action - Title VI Discrimination, 42 U.S.C.
§ 2000d (Against STP, Washington State, WSDOT, and
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)).
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; 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 ¶
4.52. Although the Complaint indicates that plaintiff's
discrimination claim is against defendants STP, Washington
State, WSDOT and OMWBE, plaintiff's opposition ...