United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendants Mark Lindquist
(“Lindquist”), Mark and Chelsea Lindquist, and
Pierce County's (“County”) (collectively
“Defendants”) motion to dismiss. Dkt. 56. The
Court has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants in part and denies in part the motion for the
reasons stated herein.
February 1, 2016, Plaintiff Glenda Nissen
(“Nissen”) filed a complaint against Defendants
in Pierce County Superior Court for the State of Washington.
Dkt. 1, Ex. A. Nissen asserted causes of action for
violations of her constitutional rights, abuse of process,
invasion of privacy, constructive discharge, outrage,
violations of Washington Law Against Discrimination, RCW
Chapter 49.60 (“WLAD”), and breach of contract.
February 5, 2016, Defendants removed the matter to this
Court. Dkt. 1.
February 22, 2016, Defendants moved to dismiss. Dkt. 9. On
April 20, 2016, the Court granted the motion and granted
Nissen leave to amend. Dkt. 18.
April 28, 2016, Nissen filed an amended complaint. Dkt. 20.
On May 12, 2016, Defendants filed a motion to dismiss. Dkt.
25. On August 11, 2016, the Court granted the motion in part
and requested supplemental briefing. Dkt. 30. On January 3,
2017, the Court granted the motion in part and requested
supplemental briefing. Dkt. 37.
January 20, 2017, Nissen filed a motion to amend. Dkt. 39. On
March 13, 2017, the Court granted the remainder of
Defendants' motion and granted Nissen's motion. Dkt.
March 17, 2017, Nissen filed a second amended complaint
(“SAC”). Dkt. 45. On September 7, 2017,
Defendants filed a motion to dismiss the SAC. Dkt. 56. On
September 25. 2017, Nissen responded and filed an appendix
for the convenience of the Court. Dkt. 57. On September 29,
2017, Defendants replied and moved to strike the appendix.
was a police officer with the County. Nissen allegedly spoke
out against Lindquist as a prosecutor. Nissen also filed
public record act requests that subsequently turned into
state court cases seeking to obtain records that Lindquist
refused to produce. Nissen alleges that she experienced
retaliation for her actions, which led to a settlement
agreement between her and the County. Nissen, however,
alleges that the County and its employees failed to honor the
agreement and continued to retaliate against her. Eventually,
Nissen resigned alleging a constructive discharge.
of attacking the complaint as a whole, Defendants attack
specific allegations and arguments as being implausible.
Nissen has definitely provided ample irrelevant and
implausible material. Nissen, however, must only assert one
plausible allegation for each element of a claim to survive a
motion to dismiss. As discussed below, Nissen has met this
minimal burden on all but one of her claims.
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Material allegations are taken as admitted and the complaint
is construed in the plaintiff's favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive
a motion to dismiss, the complaint does not require detailed
factual allegations but must provide the grounds for
entitlement to relief and not merely a “formulaic
recitation” of the elements of a cause of action.
Twombly, 127 S.Ct. at 1965. Plaintiffs must allege
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 1974.
First Amendment Retaliation
order to state a claim against a government employer for
violation of the First Amendment, an employee must show (1)
that he or she engaged in protected speech; (2) that the
employer took adverse employment action; and (3) that his or
her speech was a substantial or motivating factor for the
adverse employment action.” C ...