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Whitted v. Jordan

United States District Court, W.D. Washington, Seattle

June 13, 2019

STEPHEN E. WHITTED, Plaintiff,
v.
PETER JORDAN, et al., Defendants.

          ORDER

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendants Peter and Lori Jordan's (individually “Mr. Jordan” and “Ms. Jordan, ” collectively “the Jordans”) motion for summary judgment (Dkt. No. 28) and motion for sanctions (Dkt. No. 38), Defendants Stacey Smythe, Molly B. Kenny, and the Law Offices of Molly B. Kenny's (individually “Ms. Smythe” and “Ms. Kenny, ” collectively the “MBK Defendants”) motion for summary judgment (Dkt. No. 40), Plaintiff Stephen Whitted's (“Mr. Whitted”) motions to defer or deny Defendants' motions for summary judgment (Dkt. Nos. 44, 57) and motion for leave to file an amended complaint (Dkt. No. 49), and Mr. Whitted and the Jordan's joint submissions pursuant to W.D. Wash. Local Civil Rule 37 (Dkt. Nos. 47, 85). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby issues the following order.

         I.BACKGROUND

         This lawsuit arises out of Mr. Whitted and Ms. Jordan's divorce and subsequent legal proceedings in both Georgia and Washington related to the custody and support of their three children. (See generally Dkt. Nos. 1, 29, 29-1.)

         After 22 years of marriage, Ms. Jordan filed for divorce in Georgia. (Dkt. No. 29 at 1-2.) On November 13, 2007, the Fulton County Superior Court entered a final judgment and decree of divorce (the “divorce decree”). (Id. at 2; Dkt. No. 29-1 at 4-13.)[1] Mr. Whitted and Ms. Jordan were awarded joint legal and joint physical custody of their three children, who were minors at the time of the divorce. (Dkt. No. 29-1 at 5.) Under the divorce decree, Ms. Jordan received primary physical custody, and Mr. Whitted was ordered to pay child support in the amount of $1, 735.93 per month. (Id. at 5, 10.) In July 2008, the Fulton County Superior Court found Mr. Whitted in contempt for failure to pay child support and placed a lien on his wages. (Id. at 17- 19.)

         In February 2010, the Jordans married. (Dkt. No. 29 at 3.) Later that year, Ms. Jordan petitioned the Fulton County Superior Court for a modification of the custody order established in the divorce decree. (Id.) Ms. Jordan sought, among other things, sole legal custody of the minor children and permission to move her family from Georgia to North Carolina. (Id.) Mr. Whitted responded by filing a separate lawsuit in Fulton County Superior Court against Ms. Jordan, her attorney in the modification action, and “John Doe.” (Dkt. No. 29-1 at 46-69.) In that lawsuit, Mr. Whitted alleged, among other things, that Ms. Jordan's attorneys had engaged in “abusive litigation, ” and that “John Doe” had interfered with Mr. Whitted's parental relationship with his three children. (Id. at 61-66.) Mr. Whitted's claims were eventually dismissed. (Dkt. No. 29 at 4.)

         On January 14, 2011, following a trial, the Fulton County Superior Court modified the divorce decree to grant Ms. Jordan sole legal and physical custody of the children and approved their move to North Carolina. (Dkt. No. 29-1 at 72-77.) On September 20, 2011, Mr. Whitted filed a lawsuit in the U.S. District Court for the Northern District of Georgia, seeking monetary and injunctive relief against a Fulton County Superior Court judge and Mr. Jordan. (Dkt. Nos. 30 at 4, 30-1 at 2-25.) Against Mr. Jordan, Mr. Whitted alleged claims of false imprisonment, loss of consortium, intentional infliction of emotional distress, “intentional interference with parent child custodial relationship/abduction, ” and civil conspiracy. (Dkt. No. 30-1 at 17-21.) Mr. Whitted alleged that Mr. Jordan conspired with Ms. Jordan to relocate the children from Georgia to North Carolina, which allegedly harmed Mr. Whitted's parent-child relationship. (Id. at 12- 13.) In April 2012, the district court dismissed all of Mr. Whitted's claims without prejudice. (Id. at 57-58.)

         In July 2012, Ms. Jordan informed Mr. Whitted that she and Mr. Jordan were moving to Washington with the children. (Dkt. No. 29 at 5.) After re-locating to Washington, each of Ms. Jordan's children legally changed their surnames from Whitted to Jordan. (Dkt. No. 29 at 6-7.) The two older children changed their names after they turned 18, while the youngest child changed his name when he was 16. (Id.) As a minor, Ms. Whitted had to join her youngest son in filing a petition for change of name with the King County District Court, which was granted in August 2014. (Id. at 7.)

         The last child support payment that Ms. Jordan received from Mr. Whitted was in October 2010. (Id.) In June 2016, Ms. Jordan filed a petition for modification of the child support order in King County Superior Court (the “King County action”), seeking to hold Mr. Whitted in contempt for failing to pay child support. (Id.) Ms. Jordan sought unpaid child support payments, unpaid health insurance premiums, attorney fees, and an offsetting judgment that would reduce the amount of retirement assets Ms. Jordan was required to pay Mr. Whitted under the divorce decree. (Id. at 121-128.) Ms. Jordan hired Defendant Law Offices of Molly B. Kenny and was represented by Ms. Smythe. (Dkt. No. 29 at 7; Dkt. No. 43 at 1.) Prior to filing the lawsuit, Ms. Smythe registered the divorce decree in Washington pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), Revised Code of Washington § 26.27. (Dkt. No. 43 at 2.)

         At a contempt hearing in August 2016, a King County Superior Court Commissioner held that the court lacked subject matter jurisdiction over Ms. Jordan's petition because Ms. Jordan had incorrectly registered the divorce decree under UCCJEA, rather than the Uniform Interstate Family Support Act (“UIFSA”), Revised Code of Washington § 26.21A.[2] (Dkt. Nos. 29 at 8, 57-3 at 2-7.) On Ms. Jordan's motion for revision, a King County Superior Court judge overturned the Commissioner's ruling and found that Ms. Jordan had substantially complied with UIFSA's registration provisions. (Dkt. No. 43-5 at 1-4.)

         At a hearing on January 12, 2017, a King County Superior Court judge found Mr. Whitted in contempt for failing to pay child support and provide insurance for the children. (Dkt. No. 29-1 at 130-136.) The superior court entered judgment against Mr. Whitted for $164, 868.85 in back child support and awarded Ms. Jordan $18, 000 in attorney fees. (Id.) The superior court also ordered Mr. Whitted into custody, and deputies placed him in handcuffs and escorted him to the King County Jail. (Id. at 134; Dkt. No. 43 at 2.) As Mr. Whitted was being escorted through the courthouse hallway, Ms. Smythe took several photographs of him in handcuffs. (Dkt. No. 43 at 2.) Ms. Smythe shared these photographs with Ms. Jordan and Ms. Kenny. (Id. at 3.) Ms. Jordan emailed one of the photographs to a friend of Mr. Whitted's, with the caption “off to jail.” (Dkt. No. 29 at 9.)

         Mr. Whitted appealed the King County Superior Court's judgment. See In re: Lori Jordan v. Stephen Whitted, No. 76168 (Wash.Ct.App. 2016). On February 12, 2018, Division One of the Washington State Court of Appeals affirmed the superior court's judgment. (Dkt. No. 43-4.) The Court of Appeals specifically held that Ms. Jordan complied with UIFSA's registration requirements and affirmed all aspects of the superior court's contempt order and judgment. (Id.)

         On May 2, 2018, Mr. Whitted filed the present lawsuit. (Dkt. No. 1.) Mr. Whitted asserts numerous causes of action against the Jordans and the MBK Defendants, the majority of which arise from litigation of the King County action. (See generally id.) The Jordans and MBK Defendants have filed separate motions for summary judgment. (Dkt. Nos. 28, 40.) The Jordans separately move for sanctions pursuant to Federal Rule of Civil Procedure 11. (Dkt. No. 38.) Mr. Whitted responded to both motions for summary judgment by asking the Court for a continuance pursuant to Federal Rule of Civil Procedure 56(d). (Dkt. Nos. 44, 57.) Mr. Whitted also seeks leave to amend his complaint. (Dkt. No. 49.) The Jordans and Mr. Whitted have filed two joint submissions seeking rulings regarding discovery. (Dkt. Nos. 47, 85.) The Court resolves each motion below.

         II. DISCUSSION

         A. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Material facts are those that may affect the outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). Ultimately, summary judgment is appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

         B. Jurisdiction and Applicable Law

         The Court has diversity jurisdiction over this action because Mr. Whitted is a citizen of Maryland, Defendants are citizens of Washington, and the amount in controversy exceeds $75, 000. See Fed. R. Civ. P. 1332; (Dkt. Nos. 1, 21, 24.) “A district court in diversity jurisdiction must apply the law of the forum state to determine the choice of law.” Cleary v. News Corp., 30 F.3d 1255, 1265 (9th Cir. 1994). Under Washington law, “[w]here there is no conflict between the laws or interests of two states, the presumptive local law is applied.” Rice v. Dow Chem. Co., 875 P.2d 1213, 1216 (Wash. 1994).

         The parties do not assert, and the Court does not find, that there are conflicts between the laws of Washington and any other jurisdictions whose laws might apply to this action, whether it be Maryland (Mr. Whitted's place of residence) or Georgia (the place where some of the allegations underlying Mr. Whitted's claims arose). Thus, the Court will apply Washington law as appropriate, including for the prima facie case for each cause of action and the relevant statutes of limitation. The Court also finds that it is not precluded from adjudicating these claims under the domestic relations exception. See Ankenbrandt v. Richards, 504 U.S. 689, 692 (1992). Nor does the Court find that it is appropriate to abstain from adjudicating Mr. Whitted's claims. See Id. at 704-06.

         C. Mr. Whitted's Motions Pursuant to Rule 56(d)

         In response to Defendants' motions for summary judgment (Dkt. Nos. 28, 40), Mr. Whitted asks the Court to grant a continuance pursuant to Federal Rule of Civil Procedure 56(d) in order to allow him to conduct further discovery. (Dkt. Nos. 44, 57.)[3] A district court may defer ruling on a motion for summary judgment or allow additional time to conduct discovery if “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). To meet its burden under Rule 56(d), a party seeking to delay summary judgment for further discovery must show that: “(1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008).

         Mr. Whitted has not met his burden to demonstrate that a Rule 56(d) continuance is warranted. In his affidavit in support of a continuance to respond to the Jordans' motion for summary judgment, Mr. Whitted asserts that the Jordans provided “dilatory and evasive” responses to his discovery requests. (Dkt. No. 44-3 at 1.) Mr. Whitted states that “[t]he receipt of meaningful factual responses to each of the interrogatories and requests for production of documents served to date is essential to the presentation of the ten claims asserted in the complaint, as well as the defense of defendants' motion for summary judgment now filed in this matter.” (Id. at 2.) But Mr. Whitted does not state-either in his affidavit or in his motion for a continuance-the specific facts that he hopes to elicit from further discovery. (See Dkt. Nos. 44, 44-3.)[4] Instead, Mr. Whitted makes broad and conclusory statements about what he believes to be the Jordans' noncompliance with his discovery requests. (See id.) Further, Mr. Whitted does not explain how the discovery he seeks is essential to opposing the Jordans' motion for summary judgment. Mr. Whitted offers only generalized statements about why he needs additional discovery from the Jordans. (See, e.g., Dkt. No. 44-3 at 1) (“This written discovery was specifically tailored to elicit information, facts, and evidence probative of each of the causes of action asserted in the complaint.”).

         Mr. Whitted's request for a continuance to respond to the MBK Defendants' motion for summary judgment suffers from the same deficiencies. (See Dkt. No. 57.) In his affidavit, Mr. Whitted asserts that the MBK Defendants have provided inadequate discovery responses. (Dkt. No. 57-1 at 1-2.) Mr. Whitted suggests that the information he is seeking is outlined in a letter he sent to opposing counsel; however, that letter merely repeats the same generalized discovery objections Mr. Whitted made in his affidavit seeking a Rule 56(d) continuance. (Compare Dkt. No. 57-1, with Dkt. No. 57-2.) Mr. Whitted neither states the specific facts that he intends to elicit from further discovery, nor explains how such facts are essential to opposing the MBK Defendants' motion for summary judgment.[5] For the above reasons, Mr. Whitted's requests for a Rule 56(d) continuance (Dkt. Nos. 44, 57) are DENIED.

         D. Defendants' Motions for Summary Judgment

         Mr. Whitted asserts 10 causes of actions in his complaint. (See Dkt. No. 1 at 13-27.) The Jordans and MBK Defendants have filed separate motions for summary judgment asking the Court to dismiss all of Mr. Whitted's claims with prejudice on various grounds. The Court discusses each cause of action in turn.

         1. Intentional Interference with Parent-Child Relationship

         In Count I of the complaint, Mr. Whitted asserts that Mr. Jordan intentionally interfered with Mr. Whitted's custodial relationship with his three children. (Dkt. No. 1 at 13.) Washington recognizes a common law claim for intentional inference with a parent-child relationship. See, e.g., Strode v. Gleason, 510 P.2d 250, 254 (Wash.Ct.App. 1973) (“We hold that a parent has a cause of action for compensatory damages against a third party who maliciously alienates the affections of a minor child.”).[6] A plaintiff must prove the following elements: “(1) the existence of a family relationship, (2) a wrongful interference with the relationship by a third person, (3) an intention on the part of the third person that such wrongful interference results in a loss of affection or family association, (4) a causal connection between the third parties' conduct and the loss of affection, and (5) that such conduct resulted in damages.” Waller v. State, 824 P.2d 1225, 1236 (Wash.Ct.App. 1992) (citing Strode, 510 P.2d at 250). A three-year statute of limitations applies to claims for intentional interference with a parent-child relationship. Strode, 510 P.2d at 254 (citing Wash. Rev. Code § 4.16.080). The statute of limitations begins to accrue “when the parent is aware that the hurt is suffered.” Id.

         Mr. Jordan argues that summary judgment is warranted because, among other things, Mr. Whitted's intentional interference claim is barred by the statute of limitations. (Dkt. No. 28 at 17.) The Court agrees. Mr. Whitted asserts that Mr. Jordan interfered with his custodial rights and relationship by:

1) removing the Plaintiff's children from the state of Georgia and detaining them in Chapel Hill, North Carolina, and Washington, all without the Plaintiff's permission or consent, preventing the Plaintiff from exercising his parental and custodial rights, and 2) conspiring to illegally change the name of Plaintiff's children without Plaintiff's consent and then concealing the purported change of name from Plaintiff for years.

(Dkt. No. 1 at 13.) On September 20, 2011, Mr. Whitted filed suit in the U.S. District Court for the Northern District of Georgia, alleging, among other things, that Mr. Jordan had intentionally interfered with Mr. Whitted's parent-child custodial relationship by “removing [his] children from the state of Georgia and detaining them in Chapel Hill, in North Carolina, without [Mr. Whitted's] permission or consent, preventing [him] from exercising his parental and custodial rights.” (Dkt. No. 30-1 at 20, 25.) Those allegations are identical to many of the allegations contained in the present complaint underlying Mr. Whitted's intentional interference claim. (Compare id., with Dkt. No. 1 at 13.) Therefore, Mr. Whitted was aware of Mr. Jordan's actions that allegedly interfered with Mr. Whitted's custodial relationship with his children since, at the latest, September 2011. Since Mr. Whitted did not file this lawsuit until May 2, 2018, his claim falls well outside the tort's three-year statute of limitations. See Strode, 510 P.2d at 254.

         The same conclusion results even if the Court considers Mr. Jordan's alleged actions taken after Mr. Whitted filed his federal lawsuit in 2011. (See Dkt. No. 1 at 13) (alleging that Mr. Jordan removed Mr. Whitted's children from North Carolina to Washington and conspired to change the names of Mr. Whitted's children without his consent). Regardless of Mr. Jordan's supposed continued interference, Mr. Whitted believed that he had suffered harm to his parent-child relationship as a result of Mr. Jordan's actions no later than 2011. Under Washington law, the three-year statute of limitations began to accrue at that time and would not reset every time Mr. Jordan allegedly took additional actions to interfere with Mr. Whitted's parental relationship with his children. See Strode, 510 P.2d at 254 (statute of limitations begins to run when “when the parent is aware that the hurt is suffered.”).[7]

         In addition to the statute of limitations bar, Mr. Whitted's intentional interference claim fails because he has not created a genuine dispute of material fact regarding whether Mr. Jordan's alleged conduct was the cause of Mr. Whitted's loss of affection with his children. In fact, the uncontradicted evidence in the record suggests that Mr. Whitted's own conduct led to the loss of affection with his children. In January 2011, the Superior Court of Fulton County granted Ms. Jordan sole physical and legal custody of her three children. (Dkt. No. 29-1 at 75.) The court noted that its decision was a result of Mr. Whitted's neglect and “in the best interest of the children.” (Id. at 73-75.)

         All three of Mr. Whitted's children have filed declarations explaining that he was barely involved with their lives either before or after their mother married Mr. Jordan. (See Dkt. Nos. 31, 32, 33); (see, e.g.i, Dkt. No. 32 at 1-2) (“I was in middle school when my parents divorced. The lack of relationship with [Mr. Whitted] did not start with the divorce, and it has not improved since that time.”). Moreover, all three children state that Mr. Jordan did not take any of the actions that Mr. Whitted alleges form the basis for his intentional interference claim, such as keeping the children away from Mr. Whitted or forcing the children to change their surnames. (See, e.g., Dkt. No. 32 at 2) (“The decision to change my name from Whitted to Jordan was completely my own decision.”). Mr. Whitted has not presented any evidence to rebut the Jordans' evidence that Mr. Jordan did not interfere with Mr. Whitted's parent-child relationship.

         Because Mr. Whitted's claim is time-barred and he has not come forward with any evidence to demonstrate that Mr. Jordan intentionally interfered with Mr. Whitted's parent-child relationships, the Jordans' motion for summary judgment is GRANTED as to this claim.

         2. Civil Conspiracy (as to the Jordans)

         Mr. Whitted alleges in Count II of the complaint that the Jordans conspired to “intentionally interfere with the parent and custodial relationship of [Mr. Whitted] with his three minor children, to falsely imprison Plaintiff's children, to cause loss of consortium, and to intentionally inflict emotional distress upon the Plaintiff, inter alia.” (Dkt. No. 1 at 15.) Under Washington law, a claim for civil conspiracy is actionable “if two or more persons combine to accomplish an unlawful purpose or combine to accomplish some purpose not in itself unlawful by unlawful means.” Corbit v. J. I. Case Co., 424 P.2d 290, 295 (Wash. 1967). The plaintiff has the burden of showing that “the alleged coconspirators entered into an [a]greement to accomplish the object of the conspiracy.” Id. A civil conspiracy must be proved with clear, cogent, and convincing evidence. Id.

         Mr. Whitted's intentional interference claim cannot support his civil conspiracy claim because the former is time-barred as explained in the prior section. See supra Part II.D.1. The Jordans assert that Mr. Whitted has failed to produce any evidence in support of the other allegations underlying his civil conspiracy claim. (Dkt. No. 28 at 16-17.) The Court agrees. Mr. Whitted has come forward with nothing more than conclusory allegations regarding his claims that the Jordans conspired to “falsely imprison [Mr. Whitted's] children, to cause loss of consortium, and to intentionally inflict emotional distress upon [Mr. Whitted]. (Dkt. No. 1 at 13.)[8] As the Court explained in the prior section, the evidence in the record contradicts Mr. Whitted's allegations regarding the Jordans' treatment of the three children, and Mr. Whitted has not presented any evidence to create a genuine issue of material fact regarding his civil conspiracy claim. See supra Part II.D.1. Certainly, Mr. Whitted has not presented clear, cogent, or convincing evidence to support conduct by the Jordans that amounted to a civil conspiracy.

         For the above reasons, the Jordan's motion for summary judgment as to Mr. Whitted's claim for civil ...


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