United States District Court, W.D. Washington, Seattle
L. ROBART United States District Judge.
an employment discrimination action in which Plaintiff Linda
Vopnford asserts seven causes of action against “all
defendants”: (1) gender discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq.; (2) age
discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621
et seq.; (3) unequal pay based on gender in
violation of the Equal Pay Act (“EPA”), 29 U.S.C.
§ 206(d); (4) discrimination and wrongful termination in
violation of the Washington Law Against Discrimination
(“WLAD”), RCW ch. 49.60; (5) negligent hiring and
supervision; (6) intentional infliction of emotional
distress; and (7) violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq. (Am. Compl. (Dkt. # 11) ¶¶
5.1-6.34.) Before the court is Defendants Comprehensive
Health Management, Inc. (“CHMI”), Tom Potts,
Frank Webster, Lydia Ophaug, Ray McComb, and Kaleista
Lagarde's (collectively, “Moving Defendants”)
motion to strike certain allegations from and partially
dismiss Ms. Vopnford's amended complaint. (MTD (Dkt. #
20).) Ms. Vopnford opposes Moving Defendants' motion.
(MTD Resp. (Dkt. # 29).)
court has considered the parties' submissions in support
of and opposition to the motion, the relevant portions of the
record, and the applicable law. Considering itself fully
advised,  the court GRANTS in part and DENIES in
part Moving Defendants' motion; STRIKES paragraphs 3.2
through 3.31 from the amended complaint; DISMISSES without
prejudice Ms. Vopnford's claims against Mr. Potts, Ms.
Ophaug, Mr. McComb, and Ms. Lagarde for lack of personal
jurisdiction; DISMISSES with prejudice Ms. Vopnford's
Title VII, ADEA, EPA, and ADA claims against Mr. Webster; and
DISMISSES with leave to amend Ms. Vopnford's negligent
hiring and supervision claim against Mr. Webster and CHMI,
Ms. Vopnford's intentional infliction of emotional
distress claim against Mr. Webster and CHMI, and Ms.
Vopnford's ADA claim against CHMI. The court also
DISMISSES without prejudice Ms. Vopnford's claims against
the Doe defendants and ORDERS Ms. Vopnford to show cause no
later than August 15, 2017, why the court should not dismiss
her claims against Defendants Wellcare Health Plans
(“Wellcare”) and Tom Cahill for failure to serve.
action arises out of alleged employment discrimination by
Moving Defendants, Wellcare, Mr. Cahill, and 150 Doe
defendants. (See generally Am. Compl.) Ms. Vopnford,
a 65-year-old woman, worked as a supervisor and manager at
CHMI.(Am. Compl. ¶ 2.1.)
Initial Employment and Promotions
hired Ms. Vopnford in August 2011 as a temporary
employee. (Am. Compl. ¶ 3.32.) In July 2012,
CHMI hired Ms. Vopnford to the position of Help Desk
Operator, a full-time position that initially paid $38,
000.00 annually. (Id. ¶¶ 3.33-3.34.) Mr.
Cahill, the Bellingham Service Delivery Director, alerted Ms.
Vopnford in September 2012 that she would become the new
Service Desk Manager. (Id. ¶¶ 3.35, 3.51.)
Vopnford became the Service Desk Manager but did not receive
an increase in pay until March 2013. (Id.
¶¶ 3.36, 3.38.) At that time, she received a raise
to $42, 000.00 per year, and the raise was retroactive to
January 1, 2013. (Id. ¶¶ 3.40-3.41.)
Although the minimum pay for a manager, according to
CHMI's salary bands, was $56, 000.00 per year, Mr. Cahill
explained that CHMI could not afford to give Ms. Vopnford a
larger raise at that time due to a limited pool of funds
available. (Id. ¶¶ 3.39, 3.43.)
summer of 2013, the CEO of non-party Windsor Health Group,
then CHMI's parent company, announced that the company
would pay Ms. Vopnford within the published salary bands
within a year. (Id. ¶ 3.44.) By the end of
2013, CHMI had increased Ms. Vopnford's annual
compensation to $52, 000.00, which is $4, 000.00 less than
the low end of the published salary band for a manager.
(Id. ¶¶ 3.45-3.46.) Nonetheless, Ms.
Vopnford continued to perform her duties and receive
“kudos from end users, positive response from staff,
and support from [Mr. Cahill].” (Id. ¶
3.47.) Her managers also called upon her to “work on
several projects with other Service Delivery staff”
during this time. (Id. ¶ 3.48.)
Wellcare's Acquisition of Windsor Health Group
January 1, 2014, Wellcare purchased Windsor Health Group.
(Id. ¶ 3.50.) Shortly thereafter, Wellcare,
which is based in Tampa, Florida, initiated meetings with Ms.
Vopnford and others regarding systems integration.
(Id. ¶¶ 3.50-3.51.) In March 2014, Mr.
Cahill left CHMI, and Ms. Vopnford began reporting directly
to “the Corporate office in Tampa.” (Id.
¶ 3.51.) Her “new boss” asked Ms.
Vopnford “to lead the process of terminating access for
the people who would be leaving on May 21, 2014.”
(Id. ¶ 3.52.) Ms. Vopnford's new boss also
requested that Ms. Vopnford “come to Tampa to meet with
him, ” and Ms. Vopnford suggested that they include Mr.
Webster in the meeting. (Id. ¶ 3.52.)
Vopnford and Mr. Webster traveled to Tampa and met with
members of the IT staff. (Id. ¶ 3.53.) Ms.
Vopnford's new boss had not decided where to place Ms.
Vopnford or Mr. Webster, but he directed Ms. Vopnford to
“continue what she was doing” and “work
with Tampa staff as needed.” (Id. ¶
3.54.) Ms. Vopnford had little subsequent contact with her
new boss, but she and Mr. Webster were scheduled to meet with
him in Nashville, Tennessee in May 2014. (Id.
days before the trip to Nashville, Mr. Potts, the head of Ms.
Vopnford's department, informed Ms. Vopnford that
“a reorganization would be announced the next
day.” (Id. ¶ 3.57.) As part of
that reorganization, CHMI demoted Ms. Vopnford to Supervisor
and gave her a raise to $54, 000.00. (Id.
¶¶ 3.58, 3.60.) Despite her title, Ms. Vopnford no
longer had any direct reports, management canceled her trip
to Nashville, and she suffered a diminishment in
responsibilities and a lack of direction. (Id.
¶¶ 3.59, 3.61-3.62(b).) Mr. Potts and Mr. Webster,
who CHMI promoted to “manager of all remote Client
Services staff, ” assured Ms. Vopnford that she
remained part of the leadership team, praised Ms.
Vopnford's work, and assured her that they would work on
increasing her responsibilities. (Id. ¶¶
3.59, 3.62(a)-3.62(b), 3.64.) Despite her efforts to remain
proactive in fulfilling her job duties, however, CHMI began
to phase Ms. Vopnford out of communication with management in
Tampa. (Id. ¶¶ 3.63, 3.65.)
November 21, 2014, CHMI eliminated Ms. Vopnford's
position and terminated Ms. Vopnford. (Id. ¶ 3.66.)
CHMI informed Ms. Vopnford that her termination was due to a
reduction in force and that CHMI treated her the same as
others. (Id. ¶¶ 3.67, 3.69.) However,
other employees received notice of termination as early as
March 2014, which allowed them to make preparations that Ms.
Vopnford could not make. (Id. ¶¶ 3.68,
3.70.) Ms. Vopnford also did not receive prompt payment of
benefits upon her termination, and she had to threaten legal
action in order to receive the money owed. (Id.
¶¶ 3.73-3.74.) Since her termination, Ms. Vopnford
has struggled to find consistent, full-time work, and her
current job pays approximately $30, 000.00 per year.
(Id. ¶¶ 3.76-3.88.)
weeks after her termination, CHMI advertised her previous
job-Client Services Supervisor-on its website. (Id.
¶ 3.71.) CHMI eventually filled the position with a
“younger male with less experience and
qualifications” than Ms. Vopnford, who was also
“paid less” than Ms. Vopnford. (Id.
¶ 3.75.) Ms. Vopnford subsequently filed a charge with
the Equal Employment Opportunity Commission (Alexander Decl.
(Dkt. # 30) ¶ 3, Ex. A), and obtained a right-to-sue
letter (Milianti Decl. (Dkt. # 21) ¶ 3, Ex.
A). This lawsuit followed.
Defendants first ask the court to strike paragraphs 3.2
through 3.31 from Ms. Vopnford's amended complaint. (MTD
at 17-20.) They also contend that the court lacks personal
jurisdiction over Mr. Potts, Mr. Webster, Ms. Ophaug, Mr.
McComb, and Ms. Lagarde (collectively, “Individual
Moving Defendants”). (Id. at 7-9.) In the
alternative, Moving Defendants challenge the legal basis and
sufficiency of the allegations as to all seven of Ms.
Vopnford's causes of action against Individual Moving
Defendants. (Id. at 9-17.) As to CHMI, however,
Moving Defendants move to dismiss only Ms. Vopnford's
claims for negligent hiring and supervision, intentional
infliction of emotional distress, and violation of the ADA.
(Id. at 13-17.) The court now turns to Moving
Motion to Strike
to Federal Rule of Civil Procedure 12(f)(2), Moving
Defendants ask the court to strike paragraphs 3.2 through
3.31 of Ms. Vopnford's amended complaint. (MTD at 17-20.)
Those paragraphs chronicle Ms. Vopnford's employment
history from 1999 through 2011. (See Am. Compl.
¶¶ 3.2-3.31.) Ms. Vopnford opposes the motion and
argues that the allegations provide relevant contextual
information regarding past practices at CHMI's
predecessor companies. (MTD Resp. at 19-21.)
Rule of Civil Procedure 12(f) permits the court to
“strike from a pleading . . . any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). “A federal court will not exercise
its discretion under Rule 12(f) to strike a pleading unless
the matters sought to be omitted have no possible
relationship to the controversy, may confuse the issues, or
otherwise prejudice a party.” Ollier v. Sweetwater
Union High Sch. Dist., 735 F.Supp.2d 1222, 1223-24 (S.D.
Cal. 2010) (citing Platte Anchor Bolt, Inc. v. IHI,
Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004)).
Furthermore, “motions to strike are rarely granted in
the absence of a showing of prejudice to the moving
party.” Freeman v. Alta Bates Summit Med. Ctr.
Campus, No. C 04-2019 SBA, 2004 WL 2326369, at *2 (N.D.
Cal. Oct. 12, 2004) (citing 61 Am. Jur. 2d Pleading
§ 505 (1999)). This demanding standard leads district
courts in the Ninth Circuit to disfavor motions to strike,
which are “often used as a delaying tactic.”
Cal. Dep't of Toxic Substances Control v. Alco Pac.,
Inc., 217 F.Supp.2d 1028, 1032-33 (C.D. Cal. 2002);
see also Cruz v. Sky Chefs, Inc., No. C-12-03705
DMR, 2013 WL 1892337, at *6 (N.D. Cal. 2013) (collecting
cases); Hovenkotter v. Safeco Corp., No.
C09-0218JLR, 2009 WL 6698629, at *8-9 (W.D. Wash. Aug. 3,
Paragraphs 3.2 through 3.31 of the Amended Complaint
challenged allegations pertain to actions at and by non-party
Olympic Health Management (“Olympic”) from 1999
through 2008. (Am. Compl. ¶¶ 3.2-3.31.) As best the
court can discern from the passive voice, vague nouns, and
imprecise verbs that typify Ms. Vopnford's allegations,
Olympic relates to this litigation in the following manner:
from 1999 to 2006, Ms. Vopnford worked at Olympic, but
Olympic eliminated her position and let her go in May 2006
(id. ¶¶ 3.2, 3.15); in 2008, Olympic
“was sold to Munich Re” (id. ¶
3.28); in August 2009, Olympic “was transitioned
to”-which appears to mean, “was
renamed”-Sterling Life Insurance
(“Sterling”) (id. ¶ 3.29); at an
indeterminate subsequent time, Sterling purchased Windsor
Health Plans and “the overall name [of the business]
changed to Windsor Health Group” (id. ¶
3.30); in August 2011, “the company”-presumably
Sterling and/or Windsor Health Group-hired Ms. Vopnford
(id. ¶ 3.32); on January 1, 2014, Wellcare
purchased Windsor Health Group (id. ¶ 3.49);
and CHMI is a subsidiary of and does business as Wellcare
(id. ¶ 2.3). Between 2006 and 2011, Ms.
Vopnford alleges no connection between herself and Wellcare,
CHMI, or any other defendant in this action or non-party
corporate entity identified in the above chronology.
(See Am. Compl. ¶¶ 3.2-3.31.) Furthermore,
Ms. Vopnford does not dispute that the challenged allegations
reach well beyond the statute of limitations (see
MTD at 18-19; MTD Resp. at 19-21), but she argues that the
time-barred allegations are “relevant as background
information” (MTD Resp. at 21).
challenged allegations are not only stale, they are also
untethered to the defendants in this action. Olympic renamed
itself Sterling, which purchased Windsor Health Plans and
changed its name to Windsor Health Group, which hired Ms.
Vopnford and was subsequently purchased by Wellcare.
(See Am. Compl. ¶¶ 3.29-3.30, 3.32, 3.49.)
Olympic's actions, in some cases more than a decade
earlier, do not bear on liability, damages, or any other
issue in this case, which concerns actions by Wellcare, its
subsidiary, and its agents after hiring Ms. Vopnford in
August 2011. (Id. ¶ 3.32.) Paragraphs 3.2
through 3.31 therefore “have no possible relationship
to the controversy” and “may confuse the
issues” in this case. Ollier, 735 F.Supp. at
1223; see also Platte Anchor, 352 F.Supp.2d at 1057.
Furthermore, if allowed to stand, the eight-year time frame
referenced in the challenged allegations could prejudice
Moving Defendants by dramatically expanding the scope of
relevant discovery. See Freeman, 2004 WL 2326369, at
*2. Accordingly, the court strikes paragraphs 3.2 through
3.31 from the complaint. See Fed. R. Civ. P. 12(f).
Motion to Dismiss for Lack of Personal Jurisdiction
Moving Defendants argue that the amended complaint fails to
establish personal jurisdiction over them, and they therefore
move to dismiss all claims against them. (MTD at 6-9.)
Rule of Civil Procedure 12(b)(2) allows a defendant to move
to dismiss claims against it for lack of personal
jurisdiction. See Fed. R. Civ. P. 12(b)(2).
“In opposing a defendant's motion to dismiss for
lack of personal jurisdiction, the plaintiff bears the burden
of establishing that jurisdiction is proper.”
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d
1066, 1073 (9th Cir. 2011). However, in the absence of an
evidentiary hearing, “the plaintiff need only make
‘a prima facie showing of jurisdictional facts to
withstand the motion to dismiss.'” Wash. Shoe
Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 671-72
(9th Cir. 2012) (quoting Pebble Beach Co. v. Caddy,
453 F.3d 1151, 1154 (9th Cir. 2006)); see also Ranza v.
Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015).
Although the plaintiff cannot simply rest on the bare
allegations of her complaint, uncontroverted allegations in
the complaint must be taken as true, and conflicts between
parties over statements in affidavits must be resolved in the
plaintiff's favor. Schwarzenegger v. Fred Martin
Motor Co., 374 F.3d 797, 800 (9th Cir. 2004); see
CollegeSource, 653 F.3d at 1073; Ranza, 793
F.3d at 1068.
test for personal jurisdiction involves two basic inquiries:
(1) whether the applicable long-arm statute is satisfied and
(2) whether the assertion of personal jurisdiction satisfies
due process. See CollegeSource, 653 F.3d at 1073.
Where, as here, no federal long-arm statute applies, the
court applies the long-arm statute of the state in which it
sits. Schwarzenegger, 374 F.3d at 800.
“Washington's long-arm statute extends jurisdiction
over a defendant to the fullest extent” due process
permits. Wash. Shoe, 704 F.3d at 672 (citing RCW
4.28.185; Shute v. Carnival Cruise Lines, 783 P.2d
78, 82 (Wash. 1989)); see also Failla v. FixtureOne
Corp., 336 P.3d 1112, 1116 (Wash. 2014)
(“[Washington's] long-arm statute [is] designed to
be co-extensive with federal ...