United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
HISEY'S ANTI-SLAPP MOTIONS
B. Leighton United States District Judge
MATTER is before the Court on Plaintiff Hisey's Motion to
Dismiss (and Special Motion to Strike) Defendant Ellis's
Counterclaim against her for defamation based on (1) her
report to the Vancouver Police Department and (2) her
subsequent complaint to the Better Business Bureau. Hisey
argues that her complaints to a governmental agency about a
matter reasonably within its concern entitle her to immunity
under Washington's “anti-SLAPP” statute, RCW
4.24.510. She seeks dismissal of the counterclaims under Rule
12(b)(6). She also asks the court to strike the counterclaims
under the anti-SLAPP statute's “special motion to
strike” provision, RCW 4.24.525(4).
argues that the “special motion to strike”
provision of the anti-SLAPP statute (RCW 4.24.525(4)) has
been deemed unconstitutional. Davis v. Cox, 183
Wash.2d 269, 294 (2015). He also argues that Hisey cannot
prevail on her more traditional Rule 12(b)(6) motion to
dismiss because his counterclaim is based in part on
Hisey's report to a non-governmental agency, the BBB.
under Rule 12(b)(6) may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. See Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). A plaintiff's complaint must allege facts to
state a claim for relief plausible on its face. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has
“facial plausibility” when the party seeking
relief “pleads factual content that allows the Court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “[A]
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations and
footnotes omitted). This requires a plaintiff to plead
“more than an unadorned,
Iqbal, 556 U.S. at 678 (citing Twombly).
Rule 12(b)(6) motion, “a district court should grant
leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts.”
Cook, Perkiss & Liehe v. N. Cal. Collection
Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where
the facts are not in dispute, and the sole issue is whether
there is liability as a matter of substantive law, the Court
may deny leave to amend. See Albrecht v. Lund, 845
F.2d 193, 195-96 (9th Cir. 1988).
anti-SLAPP statute aims to deter meritless suits filed to
chill a defendant's exercise of his First Amendment
rights. It immunizes any “person who communicates a
complaint or information to any branch or agency of federal,
state, or local government … from civil liability for
claims based upon the communication … [if it regards]
any matter reasonably of concern to that agency or
organization.” RCW 4.24.510 (2002). “The
communicator need not have acted in good faith in order to be
entitled to immunity.” Engler v. City of
Bothell, No. C15-1873JLR, 2016 WL 3453664, at *7 (W.D.
Wash. June 20, 2016) (explaining that the 2002 amendment
removed the statute's good faith requirement, broadening
the absolute protection afforded to communicators) (citing
Bailey v. State, 191 P.3d 1285, 1291 (Wash.Ct.App.
2008)). Even if his speech was defamatory, he is immune if
his communication regarded “any matter reasonably of
concern” to the governmental agency to which he
reported. See, e.g., Lowe v. Rowe, 173 Wash.App.
253, 262, 294 P.3d 6, 11 (Wash.Ct.App. 2012) (dismissing
defamation claim because anti-SLAPP immunity applied). Speech
is ‘of public concern' when it can “be fairly
considered as relating to any matter of political, social, or
other concern to the community.” Snyder v.
Phelps, 562 U.S. 443, 453 (2011).
true that the special motion to strike is not in play.
Davis v. Cox, supra. But the immunity granted by RCW
4.24.510 is triggered when the defendant (Hisey, in this
context) reports or communicates to a governmental agency
about matters reasonably of concern to it, and a
plaintiff's (Ellis, in this context) failure to state a
claim in the face of it can be determined under the Rule
is immune from Ellis's claim(s) arising from her report
to the Vancouver Police Department, and Ellis admits as much.
The Motion to dismiss that claim under RCW 4.24.510 is
GRANTED, and the claim based on the VPD report is DISMISSED
with prejudice and without leave to amend. Hisey is entitled
to statutory damages and to attorneys' fees under this
statute, and she should file a brief in support of the same
within 10 days. Defendants shall respond to any such filing
within 10 days of that filing. The Court will not award such
damages or fees to both Hisey and her law firm;
there will be (only) one award.
counterclaim(s) based on the report to the BBB are not
similarly subject to dismissal under the Rule
12(b)(6)/Iqbal/Twombly standard; it is plausible
that Hisey's report to that (non-governmental) agency is
not entitled to similar immunity. Hisey's Motion to
Dismiss that counterclaim based on anti-SLAPP immunity is
Motion to Strike footnote number one to Ellis's Response
to the Motion is DENIED. Ellis (and Hisey) should refrain
from gratuitously including unnecessary and ...