United States District Court, W.D. Washington, Tacoma
B. Leighton, United States District Judge.
MATTER is before the Court on Franciscan's Motion to Dismiss
[Dkt. # 50] Plaintiff Rorebeck's Second Amended Complaint
[Dkt. # 49], and on Rorebeck's responsive Motion to again
Amend her Complaint [Dkt. # 56]. The Court previously
Dismissed Rorebeck's ADA and WLAD claims, and granted her
leave to amend her “retaliation for opposing unlawful
practices under HIPAA” and defamation claims.
Second Amended Complaint is her effort to state plausible
ADA, HIPAA, and defamation claims. Franciscan argues that her
effort is futile because she has failed to cure the
deficiencies in her prior complaint.
it argues that Rorebeck's ADA claim (advanced against the
employer) is not plausible because she has still not alleged
that she is disabled, or that she exhausted her
administrative remedies. Franciscan argues that
Rorebeck's revised HIPAA claim remains implausible
because there is no private right of action under HIPAA. It
argues that her HIPAA and related RCW 70.02.020 claims are
based solely on her claim she overheard a manager disclose a
different employee's-not a patient's-medical
information, and that such a disclosure is not a HIPAA
violation. And it argues that Rorebeck has not and cannot
plausibly claim that any individual defendant was acting
“other than in the capacity or a member of the
workforce of such covered entity” (See 45 CFR
§160.103; Court's prior Order Dkt. # 48).
argues that Rorebeck's revised defamation claim is
subject to dismissal because she has still failed to
plausibly allege that any individual defendant made a false
statement about her, to anyone-she still has not identified
the speaker, the content, what was false about it, or the
argues that Franciscan's latest attempt to dismiss her
ADA claim against it (an argument it did not make in the
first go-round) is unfair, and argues that she did exhaust
her administrative remedies, specifically that she exhausted
the EEOC process and obtained a right to sue letter.
defamation claim, Rorebeck again relies on Rule 8's
“short plain statement” standard to argue that
all she is required to provide is notice. She claims the
defendants know who said what about her, and that that is all
that is required. If and to the extent the Court requires her
plead more, she proposes a third amended complaint, which
4.30 Defendants placed several statements into Plaintiffs
personnel file that were untruthful and defamatory relating
to her work, knowing they would be provided along with her
employment file to any employer with whom Plaintiff sought
[Dkt. # 55-4 at 11].
under Fed.R.Civ.P. 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. Balistreri
v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th
Cir. 1990). A plaintiffs complaint must allege facts to state
a claim for relief that is 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. Although the
court must accept as true the Complaint's well-pled
facts, conclusory allegations of law and unwarranted
inferences will not defeat an otherwise proper 12(b)(6)
motion to dismiss. Vazquez v. Los Angeles Cty., 487
F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A]
plaintiffs 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 id.).
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. Albrecht v. Lund, 845 F.2d 193,
195-96 (9th Cir. 1988).
to amend a complaint under Fed.R.Civ.P. 15(a) “shall be
freely given when justice so requires.” Carvalho v.
Equifax Info. Services, LLC, 629 F.3d 876, 892 (9th Cir.
2010) (citing Forman v. Davis, 371 U.S. 178, 182
(1962)). This policy is “to be applied with extreme
liberality.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations
omitted). In determining whether to grant leave under Rule
15, courts consider five factors: “bad faith, undue
delay, prejudice to the opposing party, futility of
amendment, and whether the plaintiff has previously amended
the complaint.” United States v. Corinthian
Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (emphasis
added). Among these factors, prejudice to the opposing party
carries the greatest weight. Eminence Capital, 316
F.3d at 1052.
proposed amendment is futile “if no set of facts can be
proved under the amendment to the pleadings that would
constitute a valid and sufficient claim or defense.”
Gaskill v. Travelers Ins. Co., No. 11-cv-05847-RJB,
2012 WL 1605221, at *2 (W.D. Wash. May 8, 2012) ...