1 HONORABLE RICHARD A. JONES
9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 AT SEATTLE
11 CITY OF SEATTLE, 12 Plaintiff, Case No. 2:16-cv-00107-RAJ 13 v. ORDER GRANTING IN PART 14 AND DENYING IN PART MONSANTO COMPANY, et al., PLAINTIFF’S MOTION FOR 15 PARTIAL SUMMARY Defendants. JUDGMENT 16
17 18 I. INTRODUCTION 19 The matter before the Court is the Motion for Partial Summary Judgment of 20 Affirmative Defenses filed by Plaintiff City of Seattle (the “Motion”). Dkt. # 271. After 21 reviewing the motion, the Court determines oral argument is unnecessary. For the reasons 22 below, the Court GRANTS in part and DENIES in part the Motion. 23 II. BACKGROUND The background of this case is well-known and documented in the Court’s Order 24 granting in part and denying in part Defendants’ motion to dismiss the City’s First 25 Amended Complaint. Dkt. # 60. The City filed its Second Amended Complaint (“SAC”) 26 on July 27, 2022, which only alleged an intentional public nuisance claim. Dkt. # 267. 27 Monsanto filed its Answer and Affirmative Defense to the City’s Second Amended 1 Complaint on August 8, 2022. Dkt. # 270. The City filed this Motion for Partial 2 Summary Judgment of Affirmative Defenses on August 11, 2022. Dkt. # 271. 3 4 III. DISCUSSION 5 When a plaintiff seeks summary judgment on affirmative defenses, they “may 6 satisfy [the] Rule 56 burden by showing that there is an absence of evidence to support 7 [an essential element] of the [non-moving party’s] case.” Powell v. Union Pac. R.R. Co., 8 864 F. Supp. 2d 949, 962 (E.D. Cal. 2012) (internal quotation marks and brackets 9 omitted). While it is not essential that the plaintiff negate elements of the affirmative 10 defenses by submitting affidavits or other evidence, they must point to something 11 showing the absence of supporting evidence. Id. The Court addresses each contention in 12 turn. 13 (1) Failure to state a claim (Affirmative Defenses 1, 61) 14 Monsanto raises affirmative defenses based on the City’s failure to state a claim 15 upon which relief may be granted. Courts in the Ninth Circuit have routinely held that 16 “failure to state a claim” is not a proper affirmative defense. See, e.g., Kaiser v. CSL 17 Plasma Inc., 240 F. Supp.3d 1129, 1134 (W.D. Wash. 2017) (citations omitted). These 18 courts have explained that failure to state a claim is not a proper affirmative defense but, 19 rather, asserts a defect in the prima facie case and is more properly brought as a motion. 20 Id. (citing cases). Accordingly, the Court grants the motion and dismisses those 21 affirmative defenses. 22 (2) Standing (Affirmative Defenses 58, 59) 23 Monsanto asserts that the City lacks standing to pursue its public nuisance claim. 24 This Court has previously determined that the City has suffered injury to its property 25 giving rise to standing for public nuisance claim. See Dkt. # 60 at 11–12. Accordingly, 26 the Court grants the motion and dismisses those defenses based on lack of standing. 27 (3) Administrative jurisdiction and exhaustion (Affirmative Defenses 30, 1 31) 2 The City next asks the Court to dismiss Monsanto’s affirmative defense of primary 3 jurisdiction. Dkt. # 271 at 13. Primary jurisdiction is a prudential doctrine that permits 4 courts to determine “that an otherwise cognizable claim implicates technical and policy 5 questions that should be addressed in the first instance by the agency with regulatory 6 authority over the relevant industry rather than by the judicial branch.” Clark v. Time 7 Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). In evaluating primary jurisdiction, 8 courts consider “(1) the need to resolve an issue that (2) has been placed by Congress 9 within the jurisdiction of an administrative body having regulatory authority (3) pursuant 10 to a statute that subjects an industry or activity to a comprehensive regulatory authority 11 that (4) requires expertise or uniformity in administration.” Syntek. Astiana v. Hain 12 Celestial Grp., Inc., 783 F.3d 753, 760 (9th Cir. 2015) (citations omitted). 13 Monsanto asserts that primary jurisdiction over some or all of the claims alleged is 14 vested in the United States Environmental Protection Agency (“EPA”), the Washington 15 State Department of Ecology (“Ecology”), and/or other state or federal agencies, certain 16 of which have issued orders with respect to the alleged contamination. Dkt. # 270 (Aff. 17 Def. 31). In the same vein, Monsanto asserts that the City has not exhausted its 18 administrative remedies. 19 In this case, the City seeks damages and abatement costs rather than any ruling on 20 the contents of any EPA or Ecology order. Accordingly, there does not appear to be any 21 “agency expertise” in the context of a public nuisance action against a private party 22 which would make the primary jurisdiction doctrine applicable. Furthermore, allowing 23 this public nuisance case against a private party to proceed will not lead to the deliberate 24 bypass of the administrative scheme requiring the exhaustion of administrative remedies. 25 Therefore, the Court will grant the motion and dismiss the affirmative defenses relating to 26 primary jurisdiction and exhaustion of administrative remedies. 27 1 (4) Economic loss doctrine (Affirmative Defense 50) 2 The City seeks dismissal of the affirmative defense based on the economic loss 3 doctrine. Under the economic loss doctrine, when parties have contracted to protect 4 against potential economic liability, contract principles override the tort and purely 5 economic damages are not recoverable. Berschauer/Phillips Const. Co. v. Seattle School 6 Dist. No. 1, 124 Wn. 2d 816, 818 (1994). There are no allegations of a contract between 7 the parties such that the economic loss doctrine would apply. Therefore, the Court will 8 grant the motion and dismiss the affirmative defense based on the economic loss doctrine. 9 (5) Preemption (Affirmative Defenses 7, 28, 64) 10 Monsanto argues that the City’s public nuisance claim is preempted by federal and 11 state law, including, without limitation, the Toxic Substances Control Act (“TSCA”), the 12 Federal Food, Drug, and Cosmetic Act (“FDCA”), the Comprehensive Environmental 13 Response, Compensation, and Liability Act (“CERCLA”), the Occupational Safety and 14 Health Act (“OSHA”), and all their predecessors and amendments, the Washington 15 Product Liability Act (“WPLA”), and any other applicable statutes and/or federal and 16 state law. Dkt. # 270 (Aff. Def. 31). The Court notes that TSCA and FDCA expressly 17 contain savings clauses for state and common law claims. Similarly, OHSA, which 18 impacts “employment performed in a workplace,” 29 USC § 653(a), seemingly does not 19 apply here to the City’s claim. Id. However, the sufficiency of the legal and factual basis 20 of these defenses, as well as the applicability of the defenses to a representative action for 21 abatement of a public nuisance, will be addressed and determined on either Monsanto’s 22 motion for summary judgment (to the extent relevant) or at trial. 23 (6) Defenses relating to claims no longer at issue 24 Monsanto asserts numerous affirmative defenses relating to unjust enrichment, 25 products liability, and negligence. See Aff. Defs. 20 (unjust enrichment), 38, 41, 45, 46, 26 66, 80, 85, 86 (products liability), and 37, 47, 53 (negligence). The Court reiterates that 27 because these defenses do not respond to any claims brought by Seattle in the first place, 1 they are irrelevant and redundant. Dkt. # 116 at 26–27. The Court will grant the motion 2 and dismiss these defenses.
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1 HONORABLE RICHARD A. JONES
9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 AT SEATTLE
11 CITY OF SEATTLE, 12 Plaintiff, Case No. 2:16-cv-00107-RAJ 13 v. ORDER GRANTING IN PART 14 AND DENYING IN PART MONSANTO COMPANY, et al., PLAINTIFF’S MOTION FOR 15 PARTIAL SUMMARY Defendants. JUDGMENT 16
17 18 I. INTRODUCTION 19 The matter before the Court is the Motion for Partial Summary Judgment of 20 Affirmative Defenses filed by Plaintiff City of Seattle (the “Motion”). Dkt. # 271. After 21 reviewing the motion, the Court determines oral argument is unnecessary. For the reasons 22 below, the Court GRANTS in part and DENIES in part the Motion. 23 II. BACKGROUND The background of this case is well-known and documented in the Court’s Order 24 granting in part and denying in part Defendants’ motion to dismiss the City’s First 25 Amended Complaint. Dkt. # 60. The City filed its Second Amended Complaint (“SAC”) 26 on July 27, 2022, which only alleged an intentional public nuisance claim. Dkt. # 267. 27 Monsanto filed its Answer and Affirmative Defense to the City’s Second Amended 1 Complaint on August 8, 2022. Dkt. # 270. The City filed this Motion for Partial 2 Summary Judgment of Affirmative Defenses on August 11, 2022. Dkt. # 271. 3 4 III. DISCUSSION 5 When a plaintiff seeks summary judgment on affirmative defenses, they “may 6 satisfy [the] Rule 56 burden by showing that there is an absence of evidence to support 7 [an essential element] of the [non-moving party’s] case.” Powell v. Union Pac. R.R. Co., 8 864 F. Supp. 2d 949, 962 (E.D. Cal. 2012) (internal quotation marks and brackets 9 omitted). While it is not essential that the plaintiff negate elements of the affirmative 10 defenses by submitting affidavits or other evidence, they must point to something 11 showing the absence of supporting evidence. Id. The Court addresses each contention in 12 turn. 13 (1) Failure to state a claim (Affirmative Defenses 1, 61) 14 Monsanto raises affirmative defenses based on the City’s failure to state a claim 15 upon which relief may be granted. Courts in the Ninth Circuit have routinely held that 16 “failure to state a claim” is not a proper affirmative defense. See, e.g., Kaiser v. CSL 17 Plasma Inc., 240 F. Supp.3d 1129, 1134 (W.D. Wash. 2017) (citations omitted). These 18 courts have explained that failure to state a claim is not a proper affirmative defense but, 19 rather, asserts a defect in the prima facie case and is more properly brought as a motion. 20 Id. (citing cases). Accordingly, the Court grants the motion and dismisses those 21 affirmative defenses. 22 (2) Standing (Affirmative Defenses 58, 59) 23 Monsanto asserts that the City lacks standing to pursue its public nuisance claim. 24 This Court has previously determined that the City has suffered injury to its property 25 giving rise to standing for public nuisance claim. See Dkt. # 60 at 11–12. Accordingly, 26 the Court grants the motion and dismisses those defenses based on lack of standing. 27 (3) Administrative jurisdiction and exhaustion (Affirmative Defenses 30, 1 31) 2 The City next asks the Court to dismiss Monsanto’s affirmative defense of primary 3 jurisdiction. Dkt. # 271 at 13. Primary jurisdiction is a prudential doctrine that permits 4 courts to determine “that an otherwise cognizable claim implicates technical and policy 5 questions that should be addressed in the first instance by the agency with regulatory 6 authority over the relevant industry rather than by the judicial branch.” Clark v. Time 7 Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). In evaluating primary jurisdiction, 8 courts consider “(1) the need to resolve an issue that (2) has been placed by Congress 9 within the jurisdiction of an administrative body having regulatory authority (3) pursuant 10 to a statute that subjects an industry or activity to a comprehensive regulatory authority 11 that (4) requires expertise or uniformity in administration.” Syntek. Astiana v. Hain 12 Celestial Grp., Inc., 783 F.3d 753, 760 (9th Cir. 2015) (citations omitted). 13 Monsanto asserts that primary jurisdiction over some or all of the claims alleged is 14 vested in the United States Environmental Protection Agency (“EPA”), the Washington 15 State Department of Ecology (“Ecology”), and/or other state or federal agencies, certain 16 of which have issued orders with respect to the alleged contamination. Dkt. # 270 (Aff. 17 Def. 31). In the same vein, Monsanto asserts that the City has not exhausted its 18 administrative remedies. 19 In this case, the City seeks damages and abatement costs rather than any ruling on 20 the contents of any EPA or Ecology order. Accordingly, there does not appear to be any 21 “agency expertise” in the context of a public nuisance action against a private party 22 which would make the primary jurisdiction doctrine applicable. Furthermore, allowing 23 this public nuisance case against a private party to proceed will not lead to the deliberate 24 bypass of the administrative scheme requiring the exhaustion of administrative remedies. 25 Therefore, the Court will grant the motion and dismiss the affirmative defenses relating to 26 primary jurisdiction and exhaustion of administrative remedies. 27 1 (4) Economic loss doctrine (Affirmative Defense 50) 2 The City seeks dismissal of the affirmative defense based on the economic loss 3 doctrine. Under the economic loss doctrine, when parties have contracted to protect 4 against potential economic liability, contract principles override the tort and purely 5 economic damages are not recoverable. Berschauer/Phillips Const. Co. v. Seattle School 6 Dist. No. 1, 124 Wn. 2d 816, 818 (1994). There are no allegations of a contract between 7 the parties such that the economic loss doctrine would apply. Therefore, the Court will 8 grant the motion and dismiss the affirmative defense based on the economic loss doctrine. 9 (5) Preemption (Affirmative Defenses 7, 28, 64) 10 Monsanto argues that the City’s public nuisance claim is preempted by federal and 11 state law, including, without limitation, the Toxic Substances Control Act (“TSCA”), the 12 Federal Food, Drug, and Cosmetic Act (“FDCA”), the Comprehensive Environmental 13 Response, Compensation, and Liability Act (“CERCLA”), the Occupational Safety and 14 Health Act (“OSHA”), and all their predecessors and amendments, the Washington 15 Product Liability Act (“WPLA”), and any other applicable statutes and/or federal and 16 state law. Dkt. # 270 (Aff. Def. 31). The Court notes that TSCA and FDCA expressly 17 contain savings clauses for state and common law claims. Similarly, OHSA, which 18 impacts “employment performed in a workplace,” 29 USC § 653(a), seemingly does not 19 apply here to the City’s claim. Id. However, the sufficiency of the legal and factual basis 20 of these defenses, as well as the applicability of the defenses to a representative action for 21 abatement of a public nuisance, will be addressed and determined on either Monsanto’s 22 motion for summary judgment (to the extent relevant) or at trial. 23 (6) Defenses relating to claims no longer at issue 24 Monsanto asserts numerous affirmative defenses relating to unjust enrichment, 25 products liability, and negligence. See Aff. Defs. 20 (unjust enrichment), 38, 41, 45, 46, 26 66, 80, 85, 86 (products liability), and 37, 47, 53 (negligence). The Court reiterates that 27 because these defenses do not respond to any claims brought by Seattle in the first place, 1 they are irrelevant and redundant. Dkt. # 116 at 26–27. The Court will grant the motion 2 and dismiss these defenses. 3 (7) Defenses relating to limitation periods (Affirmative Defenses 8, 9, 13) 4 This Court previously concluded that the City’s efforts to rid its waterways of 5 pollution is an act “for the common good,” and so its nuisance claim was not barred by 6 any applicable limitations period. See Dkt. # 60 at 9-10. Accordingly, the Court will grant 7 the motion and dismiss these defenses. (8) Defenses relating to estoppel, unclean hands, waiver, and consent 8 defenses (Affirmative Defenses 10, 11, 12, 14) 9 Monsanto seeks to assert estoppel, unclean hands, waiver, and consent as 10 affirmative defenses. See Dkt. # 270. Under Washington law, estoppel may be applied 11 equitably against a municipality acting in a proprietary capacity, but the bar is less likely 12 to be applied when a municipality has acted in a governmental capacity. City of Mercer 13 Island v. Steinmann, 9 Wash. App. 479, 481–82 (1973). As the Court concluded, the City 14 is acting here “for the common good” and thus in a governmental capacity. Dkt. # 60 at 15 9-10. The Court will dismiss the estoppel defense. 16 However, the sufficiency of the legal and factual basis of Monsanto’s remaining 17 defenses, as well as the applicability of the defenses to a representative action for 18 abatement of a public nuisance, will be addressed and determined at trial. 19 (9) Remaining Affirmative Defenses 20 The remaining defenses largely concern issues regarding allocation of liability, 21 statutory compliance, and the applicability of the collateral source rule. See Dkt. # 271 at 22 23-29. The Court will not rule in a vacuum on the applicability of these defenses. The 23 sufficiency of the legal and factual basis of Monsanto’s remaining defenses, as well as 24 the applicability of the defenses to a representative action for abatement of a public 25 nuisance, will either be addressed and determined on either Monsanto’s motion for 26 summary judgment (to the extent relevant to that motion) or at trial. 27 1 IV. CONCLUSION 2 For the reasons stated above, the Court GRANTS in part and DENIES in part 3 Plaintiff’s Motion for Partial Summary Judgment of Affirmative Defenses. Dkt. # 271. 4 The Motion is granted as to Affirmative Defenses 1, 8-10, 13, 20, 30-31, 37-38, 41, 45- 5 47, 50, 53, 58-59, 61, 66, 80, 85-86 and is otherwise denied.
6 DATED this 21st day of March, 2023. 7 A 8 9 The Honorable Richard A. Jones 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27