United States District Court, E.D. Washington
LITTLE BUTTE PROPERTY OWNERS WATER ASSOCIATION, a Washington nonprofit corporation, Plaintiff/Counterclaim Defendant,
KEN B. BRADLEY, an individual; Defendant/Counterclaimant, KEN B. BRADLEY, Third Party Plaintiff,
CHELAN COUNTY; CHELAN COUNTY SHERIFFS OFFICE; OFFICER DOMINIC MUTCH; OFFICER CHRIS EAKLE; OFFICER MIKE LAMON; and JANE AND OR JOHN DOE OFFICERS 1-10, Third Party Defendants.
ORDER RESOLVING MOTIONS
ROSANNA MALOUF PETERSON United States District Judge
THE COURT are the following motions: (1) a motion to
partially dismiss, for failure to state a claim, Defendant
and Third Party Plaintiff Ken Bradley's claims based on
the Washington State Constitution, brought by Third Party
Defendants Chelan County, et al. (the “Chelan
County Defendants”), ECF No. 15; (2) a motion to
dismiss Defendant and Counterclaimant Ken Bradley's
counterclaims, by Plaintiff and Counterclaim Defendant Little
Butte Property Water Association (“Little
Butte”), ECF No. 14; (3) a motion for preliminary
injunction by Defendant and Counterclaimant Mr. Bradley, ECF
No. 25; and (4) a motion to exclude expert witness testimony,
by Plaintiff Little Butte, ECF No. 16. The Court heard Little
Butte's motion to dismiss and Mr. Bradley's motion
for a preliminary injunction with oral argument, and the
remaining motions without oral argument.
reviewed the parties' filings, heard argument, and
determined the relevant law, the Court resolves the motions
a procedurally complex matter, in which the parties'
roles are multi-faceted: Little Butte is Plaintiff and
Counterclaim Defendant; Mr. Bradley is Defendant,
Counterclaimant against Little Butte, and Third Party
Plaintiff against the Chelan County Defendants; and the
Chelan County Defendants are Third Party Defendants, brought
into the case by Mr. Bradley's cross-claims. ECF Nos.
1-1, 7, and 8. For the sake of clarity, the Court primarily
will refer to the parties by their names.
prematurely engaging in formal fact-finding, the Court merely
summarizes the various factual disputes between the parties
and the key events as they appear to the Court at this stage.
Bradley owns property in or near Chelan, Washington. Although
not a member of Little Butte, he is entitled to receive
water, subject to payment of assessments, pursuant to a
judgment entered in 1982 involving prior owners of the
property. However, Mr. Bradley maintains that he “did
not have to pay maintenance and upkeep fees under his
grandfathered status to the Water Association, ” which
Little Butte denies. ECF Nos. 7 at 7; 8 at 6.
dispute among the parties originates with two events, which
Mr. Bradley maintains are materially related, and Little
Butte maintains are not. First, Little Butte notified
Defendant of an impending water line replacement in September
2013. Little Butte claimed a right of entry onto Mr.
Bradley's property to maintain or repair the pipeline
running underneath a portion of the lot. Around October 2013,
Mr. Bradley and Little Butte engaged in a conflict over
whether Little Butte and its contractor could access the
property. Mr. Bradley claims that Little Butte would not
provide Mr. Bradley with proof of insurance to demonstrate
that any damage done to his property would be corrected.
Little Butte claims that Mr. Bradley blocked access to the
easement across his property.
end of October 2013, Little Butte filed a lawsuit against Mr.
Bradley in Chelan County Superior Court for temporary and
permanent injunctive relief to enjoin Mr. Bradley from
interfering with Little Butte's access to the water line
according to the easement and for damages for the delay in
accessing it. The Chelan County Superior Court granted the
temporary injunction, and Little Butte's contractor began
work on the water line under Mr. Bradley's property.
Little Butte alleges that Mr. Bradley again inhibited access
to the property, causing Little Butte to incur costs for the
delay. Little Butte obtained a contempt order, with the court
holding Mr. Bradley in contempt for failing to adhere to the
preliminary injunction and awarding Little Butte $2000 in
attorney's fees and costs.
Butte completed the work on Mr. Bradley's property. Mr.
Bradley claims that the excavation that Little Butte's
contractor performed on the property to replace the water
line caused invasive weed growth that Mr. Bradley did not
notice until May 2014, and that Little Butte “did as
much as $300, 000 in damage to the landscape.” ECF No.
7 at 15.
August 2014, the Chelan County Superior Court entered
judgment in favor of Little Butte. In September 2014, Little
Butte secured a civil bench warrant for Mr. Bradley. Mr.
Bradley alleges that the Chelan County Defendants'
service of the civil bench warrant in October 2014, at the
initiative of Little Butte, triggered Mr. Bradley's
post-traumatic stress disorder, caused physical injuries, and
subjected Mr. Bradley to wrongful arrest and detention. These
events underlie Mr. Bradley's pending 42 U.S.C. §
1983 claims for violations of his civil rights and tort claim
for infliction of emotional distress.
Bradley alleges that in January 2017, the August 2014
judgment in favor of Little Butte was vacated for
insufficient personal service of the complaint on Mr.
Bradley. The Chelan County Defendants removed the
Chelan County Superior Court action to this Court, based on
federal question jurisdiction, on May 12, 2017. ECF No. 1.
second event, which Mr. Bradley posits is materially related
to the above events, but Little Butte disagrees, is that
Little Butte shut off water service to Mr. Bradley's
property in October 2014 on the basis that he had not paid
the required fees and assessments for domestic water rates
and for maintenance of the water line. Mr. Bradley asserted
at oral argument that Little Butte's refusal to supply
water to his property is related to the damage done to his
property outside the boundaries of his easement. Little Butte
responded that the termination of water service to Mr.
Bradley's property is not related to either Little
Butte's claims or Mr. Bradley's counterclaims in this
action. ECF No. 28 at 4-5.
Butte amended its complaint in January 2017, seeking to
dissolve the October 24, 2013 temporary restraining order and
replace it with a permanent injunction against Mr. Bradley
from interfering with Little Butte's right of access over
the easement. ECF No. 1-1 at 19-24. Little Butte also seeks a
judgment for the state court's November 26, 2013 award of
$2000 in attorney fees and costs and $23, 868 in delay
damages from Mr. Bradley for inhibiting Little Butte's
work within the organization's alleged easement across
his property in 2013. Id.
Bradley raises a number of affirmative defenses to Little
Butte's claims and states a number of counter- and
cross-claims for violations of his Federal constitutional
rights, under 42 U.S.C. § 1983, and Washington State
County Defendants' Motion to Dismiss Claim under the
Washington State Constitution
preliminary matter, the Court notes that Mr. Bradley does not
oppose the Chelan County Defendants' motion to dismiss
Mr. Bradley's Washington State constitutional claim
against them. ECF No. 21. Mr. Bradley further concedes that
his claim against Little Butte for a civil rights violation
under the Washington State Constitution also may be
dismissed, subject to the reservation that any of his
allegations related to his state constitutional claims should
not be stricken “in so much as they support the
remaining tort claims” in his Amended Answer. ECF No.
21 at 2; see also ECF No. 7 (Amended Answer).
Accordingly, the Chelan County Defendants' motion to
dismiss is granted, and Mr. Bradley's cross-claim against
the Chelan County Defendants and counterclaim against Little
Butte for violation of Article 1, Section 7, of the
Washington State Constitution are dismissed.
Butte's Motion to Dismiss Mr. Bradley's
Butte moves to dismiss the four counterclaims pursuant to
Fed.R.Civ.P. Rule 12(c), principally on the basis that they
are time-barred by the applicable statutes of limitations.
Alternatively, Little Butte seeks dismissal of Mr.
Bradley's fourth counterclaim, alleging trespass onto his
property, on the basis that he fails to plead that he
suffered “actual and substantial” damages within
the three years before filing of the counterclaim. Also,
Little Butte seeks to dismiss Mr. Bradley's counterclaims
on the basis that they lack “plausibility”
because “the court from which Little Butte sought and
obtained relief was acting under color of
jurisdiction.” ECF No. 14 at 7.
late-filed response,  Mr. Bradley argues that the statute of
limitations for his counterclaims is tolled by Little
Butte's initial filing of their complaint in October 2013
and that, even if the limitations period was not tolled, the
three-year statute of limitations on his claims had not run
by February 10, 2017, because Mr. Bradley had no knowledge of
the harm for the invasive weed problem until spring 2014 and
for his injuries stemming from service of the civil warrant
until October 2014. Mr. Bradley further argues that his
counterclaim for trespass involved an ongoing and continuing
invasion of his property interests that “did not
devolve to [sic] serious right to privacy issues until Mr.
Bradley was removed from his home on October 29, 2014.”
ECF No. 18 at 7.
deciding a motion for judgment on the pleadings under
Fed.R.Civ.P. Rule 12(c) applies the same standard that is
applied to motions to dismiss for failure to state a claim
under Fed.R.Civ.P. Rule 12(b)(6). Dworkin v. Hustler
Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A
court must assume the allegations in the challenged
pleadings, here Defendant's Amended Answer, are true, and
must construe the pleading in the light most favorable to the
non-moving party. See Fleming v. Pickard, 581 F.3d
922, 925 (9th Cir. 2009). Judgment on the pleadings is
“properly granted when, taking all the allegations in
the pleadings as true, the moving party is entitled to
judgment as a matter of law.” Nelson v. City of
Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998). Leave to
amend the deficient pleading is appropriate unless the
deficiency cannot be cured by the allegation of other facts.
Knappenberger v. City of Phoenix, 566 F.3d 936, 942
(9th Cir. 2009).
courts apply state statutes of limitations for personal
injury actions in evaluating claims brought under 42 U.S.C.
§ 1983. See Wallace v. Kato, 549 U.S. 384, 387
(2007); Wilson v. Garcia, 471 U.S. 261, 276
(1985), superseded by statute on other grounds as stated
in Jones v. R.R. Donnelley & Sons, Co., 541 U.S.
369, (2004); Alameda Books, Inc. v. City of Los
Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011). The
statute of limitations for personal injury actions in
Washington is three years. Revised Code of Washington
(“RCW”) 4.16.080. Claims for intentional and
negligent infliction of emotional distress, and for
destruction of property, trespass, and condemnation, also are
subject to a three-year statute of limitations. Id.;
see Cox v. Oasis Physical Therapy, PLLC, 153 Wn.App.
176, 190 (Wash. App. Div. 3, 2009).
a federal court looks to state law for the length of the
limitations period, federal law governs when the claim
accrues. Lukovsky v. City and Cty. of San Francisco,
535 F.3d 1044, 1048 (9th Cir. 2008). “Accrual is the
date on which the statute of limitations begins to run; under
federal law, a claim accrues ‘when the plaintiff knows
or has reason to know of the injury which is the basis of the
action.'” Id. (quoting Olsen v. Idaho
State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004)
(internal quotation omitted)).
should grant a motion to dismiss based on the expiration of
the statute of limitations only if it is apparent on the face
of the complaint that the limitations period has run.
Conerly v. Westinghouse Elec. Corp., 623 F.2d 117,
119 (9th Cir. 1980). Here, the Court cannot determine on the
face of Mr. Bradley's counterclaims that the statute of
limitations had run by February 10, 2017, when Mr. Bradley
filed his initial answer and counterclaims and cross-claims.
See ECF No. 1-1 at 33. Mr. Bradley's section
1983 counterclaims and cross-claims arise out of events and
alleged injuries in October 2014. Mr. Bradley's claims
related to damage to his property, based on the face of the
complaint, could potentially have accrued within the
limitations period. Therefore, dismissal of Mr. Bradley's
counterclaims based on the expiration of the statute of
limitations is not supported at this juncture. See
Conerly, 623 F.2d at 119; see also Varrasso v.
Barksdale, No. 13-cv-1982-BAS-JLB, 2016 U.S. Dist. LEXIS
46105, at *19-20 (S.D. Cal. Apr. 5, 2016). Nor does the Court
find it appropriate ...