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 GRANTING SUMMARY JUDGMENT MOTIONS
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE
THE COURT are motions for summary judgment from Plaintiff and
Counterclaim Defendant Little Butte Property Water
Association (“Little Butte”), ECF No. 40, and
from Third Party Defendants Chelan County, Chelan County
Sheriff's Office, and individually named Chelan County
Sheriff's Deputies Mike Lamon, Chris Eakle, and Dominic
Mutch (the “Chelan County Defendants”), ECF No.
57. Little Butte seeks summary judgment in its favor for
injunctive relief and damages against Defendant and
Counterclaimant Ken Bradley. ECF No. 40. The Chelan County
Defendants seek an order of dismissal with prejudice of Mr.
Bradley's counterclaims against Little Butte. ECF No. 57.
Mr. Bradley requested oral argument for Little Butte's
summary judgment motion, the Court finds that it would not be
assisted by oral argument from the parties on the matters
raised by that motion and declines to schedule the matter for
argument. Consequently, having reviewed all
submitted documents related to the motions, and the relevant
law, the Court grants both motions for summary judgment, and
enters judgment for the Chelan County Defendants and Little
Butte. / / / / / /
Bradley's Failure to File Controverting Statements of
Chelan County Defendants request that the Court accept as
undisputed their statement of facts in support of their
motion for summary judgment because Mr. Bradley did not file
an opposing statement of material fact as required by Local
Rule 56.1, nor any exhibits to rebut the Chelan County
Defendants' statement of material facts. Similarly,
Little Butte argues that the two unsigned, undated, and
unsworn declarations that Mr. Bradley submitted with his
response to Little Butte's summary judgment motion, one
from Mr. Bradley and the other from his counsel, do not
comply with 28 U.S.C. § 1746, and do not provide any
admissible evidence to controvert Little Butte's
statement of material facts in support of its motion for
must support an assertion that a fact is genuinely disputed
by citation to particular materials in the record, including
pleadings, discovery, and affidavits. Fed.R.Civ.P. 56(c).
56(e), Fed. R. Civ. P., provides:
party fails to properly support an assertion of fact or fails
to properly address another party's assertion of fact as
required by Rule 56(c), the court may:
(1) give an opportunity to properly support address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials- including the facts considered undisputed-show
that the movant is entitled to it; or
(4) issue any other appropriate order.
In addition, Local Rule (“LR”) 56.1(b) provides:
Any party opposing a motion for summary judgment must file
with its responsive memorandum a statement in the form
prescribed in (a), setting forth the specific facts which the
opposing party asserts establishes a genuine issue of
material fact precluding summary judgment. Each fact must
explicitly identify any fact(s) asserted by the moving party
which the opposing party disputes or clarifies. (E.g.:
‘Defendant's fact #1: Contrary to plaintiff's
fact #1, . . . .') Following the fact and record
citation, the opposing party may briefly describe any
evidentiary reason the moving party's fact is disputed.
(E.g.: “Defendant's supplemental objection to
plaintiff's fact #1: hearsay.”)
56.1(d) further provides: “In determining any motion
for summary judgment, the Court may assume that the facts as
claimed by the moving party are admitted to exist without
controversy except as and to the extent that such facts are
controverted by the record set forth in (b).”
resolving a motion for summary judgment “may substitute
an unsworn declaration for a sworn affidavit if the
declaration complies with 28 U.S.C. § 1746.”
United States v. Ritchie, 342 F.3d 903, 909 (9th
Cir. 2003). Pursuant to 28 U.S.C. § 1746, the
declaration must be signed under penalty of perjury. The
declarations submitted by Mr. Bradley in support of his
response to Little Butte's summary judgment motion, ECF
Nos. 66-1 and 66-2, are not signed or dated. In addition, the
declarations refer to exhibits that were not attached or
otherwise filed, and the declarations themselves do not
provide the information necessary to determine whether the
declarations were made on Mr. Bradley's and his
counsel's personal knowledge. See Fed. R. Civ.
has been no request from Mr. Bradley to supplement the
record, and the Court finds no justifiable reason to extend
Mr. Bradley an opportunity to do so, particularly given that
the Court granted him an extended opportunity to respond to
the Chelan County Defendants' motion for summary
judgment. See ECF No. 68. Therefore, the Court deems
the facts as presented by the Chelan County Defendants and
Little Butte to be undisputed.
Butte delivers potable water to 32 residential “user
members” and “a few nonmember residential users,
” as well as two commercial establishments. ECF No. 46
Bradley owns residential property outside of Chelan. The
previous owners of the property sought a judicial
determination of the property's relationship with the
Little Butte water system. See ECF No. 46 at 2,
7-10. The result of that litigation was a judgment, issued in
1982, finding that Little Butte is obligated to provide water
to the residential property and, in return, the property
owners are required to pay the fees and assessments
associated with water service from Little Butte. Id.
Butte's potable water delivery system was developed in
approximately 1960 and involves pumping water from Lake
Chelan through “a pipeline easement that runs over 3000
linear feet . . . to the [Little Butte] pump station, water
filtration plant, and storage tanks.” ECF No. 46 at 2.
Mr. Bradley's property is subject to a portion of that
summer 2013, the Little Butte water system had begun to
deteriorate and fail, including a leak around July 2013 that
caused mud to run onto a local highway. On or around
September 21, 2013, Little Butte determined that it would
need to replace portions of the system.
replacement work was scheduled to begin on October 4, 2013,
with an anticipated nineteen work days needed to complete the
project. However, Mr. Bradley inhibited Little Butte's
contractor's access to his property on October 4. In a
letter that indicates on its face that it was emailed to
Little Butte on October 4, Mr. Bradley listed fifteen items
that would be required for him to allow access to his
property for the work on the pipeline. ECF No. 46 at 12. On
October 8, 2013, Mr. Bradley conveyed to Little Butte,
through a representative, that he would allow access to his
property once he received proof of insurance and a copy of
the easement from Little Butte. ECF No. 46 at 3. Little Butte
asserts that it provided that documentation to Mr. Bradley on
October 10, 2013. ECF Nos. 46 at 3; 50 at 2. However, Mr.
Bradley did not allow access, and work on the pipeline
replacement stopped on October 8, 2013. ECF No. 46 at 4.
Contractor Elite Excavation & Services notified Little
Butte that while standing by waiting to complete the work on
the pipeline, the company would bill the water association
for the costs associated with retaining the specialty
equipment in the area. ECF No. 54 at 3.
approximately October 22, 2013, Little Butte filed a lawsuit
against Mr. Bradley in Chelan County Superior Court, and, on
October 24, 2013, the court issued a temporary restraining
order (“TRO”) authorizing immediate access for
Little Butte and its contractor to the pipeline and directing
removal of “any obstructions such as vehicles, locks or
other objects that may interfere with the replacement of that
pipeline.” ECF No. 42-3 at 2.
same day that the restraining order was entered, Elite
Excavation “re-mobilized” its crews to restart
the pipeline. ECF No. 54 at 3. The contractor built an access
road along the route of the pipeline across Mr. Bradley's
property to facilitate access to a location between Mr.
Bradley's property and the shoreline of Lake Chelan,
where Elite Excavation was constructing a booster pump. ECF
No. 41 at 7-8.
November 11, 2013, Elite Excavation invoiced Little Butte in
the amount of $23, 868.00 for the costs incurred during the
18-day delay in the pipeline construction “due to the .
. . actions caused by Mr. Bradley.” ECF No. 54 at 4.
Little Butte paid the invoice on November 14, 2013. ECF No.
54 at 4.
fall 2013, Chelan County Sheriff's Deputies responded to
Mr. Bradley's property on five or six occasions in
response to claims that Mr. Bradley was interfering with work
related to replacing the pipeline. ECF No. 59-1 at 12-15. Mr.
Bradley also called law enforcement when individuals from
Little Butte came to the property. ECF No. 59-1 at 16.
construction, a professional line locator had identified the
location of the original Little Butte pipeline across Mr.
Bradley's property. ECF No. 52 at 3. Elite Excavation
followed the line location while performing the pipeline
replacement work. See ECF Nos. 42-7 at 2; 43 at 9.
Mr. Bradley and his acquaintances insisted that the
contractor's employees were digging in the wrong place.
ECF Nos. 53 at 2; 55 at 2.
approximately November 19, 2013, Mr. Bradley refused the
contractor access to continue work on the remaining feet of
pipeline crossing Mr. Bradley's property. ECF Nos. 41 at
8-9; 42-7 at 2. On November 20, 2013, Elite Excavation called
for a “line locate” to identify Mr. Bradley's
personal utilities in order to avoid them while replacing the
pipeline across ...