United States District Court, W.D. Washington, Seattle
STEPHEN E. WHITTED, Plaintiff,
PETER JORDAN, et al., Defendants.
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
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.
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.)
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.) 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.)
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.)
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
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.)
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.)
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. (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.)
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.)
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
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.
Summary Judgment Standard
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).
Jurisdiction and Applicable Law
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).
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.
Mr. Whitted's Motions Pursuant to Rule 56(d)
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.) 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).
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.) 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
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. For the above reasons, Mr. Whitted's
requests for a Rule 56(d) continuance (Dkt. Nos. 44, 57) are
Defendants' Motions for Summary Judgment
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.
Intentional Interference with Parent-Child
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.”). 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.
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
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.
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
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.)
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.
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.
Civil Conspiracy (as to the Jordans)
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.
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.) 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.
above reasons, the Jordan's motion for summary judgment
as to Mr. Whitted's claim for civil ...