Hennessey v. Ice Floe LLC

• Court: District Court, W.D. Washington
• Decided: February 1, 2021
• Docket: 2:20-cv-00835
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 JONATHAN HENNESSEY, 7 Cause No. C20-0835RSL Plaintiff, 8 v. ORDER GRANTING LEAVE TO 9 AMEND ICE FLOE, LLC, d/b/a NICHOLS 10 BROTHERS BOAT BUILDERS, 11 Defendant. 12 13 This matter comes before the Court on “Plaintiff’s Motion to Amend Complaint for 14 Damages and Other Relief.” Dkt. # 18. Courts “should freely give leave [to amend] when justice 15 16 so requires.” Fed. R. Civ. P. 15(a)(2). There is a “strong policy in favor of allowing amendment” 17 (Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)), and “[c]ourts may decline to grant leave to 18 amend only if there is strong evidence of undue delay, bad faith or dilatory motive on the part of 19 the movant, repeated failure to cure deficiencies by amendments previously allowed, undue 20 prejudice to the opposing party by virtue of allowance of the amendment, or futility of 21 22 amendment, etc.” (Sonoma County Ass’n of Retired Employees v. Sonoma County, 708 F.3d 23 1109, 1117 (9th Cir. 2013) (internal quotation marks and alterations omitted)). The underlying 24 purpose of Rule 15 is “to facilitate decision on the merits, rather than on the pleadings or 25 technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 26 Having considered the proposed amended complaint, the Court finds that leave to amend 27 1 is appropriate. Defendant objects to the addition of intentional infliction of emotional distress 2 and negligent supervision claims on the ground that they are duplicative of plaintiff’s 3 discrimination claim and therefore subject to dismissal under Fed. R. Civ. P. 12(b)(6).The 4 Washington Court of Appeals has noted that a negligent infliction of emotional distress claim 5 based on the same facts that give rise to the state law discrimination claim may be duplicative 6 7 because emotional distress damages are recoverable under the Washington Law Against 8 Discrimination (“WLAD”). “Because the law will not permit a double recovery, a plaintiff will 9 not be permitted to be compensated twice for the same emotional injuries.” Francom v. Costco 10 Wholesale Corp., 98 Wn. App. 845, 864-65 (2000). This line of reasoning has been followed 11 only sparingly in the state courts, however, and a number of judges of this district doubt that a 12 mere potential for double recovery warrants dismissal of an otherwise adequately pled claim. 13 14 The Honorable John C. Coughenour, for instance, has described the import of Francom as the 15 avoidance of double recovery, not a bar on pleading in the alternative: 16 [T]his issue relates to an award of damages, not the submission of an 17 alternative legal theory to the factfinder. See Robinson v. Pierce Cnty., 539 18 F. Supp.2d 1316, 1332 (W.D. Wash. 2008) (“[T]he Court declines to dismiss [Plaintiff’s] negligent supervision claim merely because it relies on 19 the same factual allegations as his discrimination claim.”); Nygren v. AT&T 20 Wireless Servs., Inc., Case No. C03-3928-JLR, Dkt. No. 63, at 2 (W.D. 21 Wash. May 16, 2005) (stating that Francom does not require the court to dismiss the emotional distress claims, but instead establishes that a plaintiff 22 “cannot win ‘double recovery’ under discrimination and negligence 23 theories”). Until such a time as Plaintiff is granted judgment on the WLAD 24 claims, Defendants’ concerns regarding a double recovery are premature. See Maxwell v. Virtual Educ. Software, Inc., Case No. C09-0173-RMP, 25 2010 WL 3120025, at *11 (E.D. Wash. Aug. 6, 2010) (until judgment is 26 granted on a discrimination claim, the issue of a double recovery is 27 prematurely asserted). The Court declines to dismiss the Intentional 1 Infliction of Emotional Distress claims. 2 Neravetla v. Virginia Mason Med. Ctr., No. C13-1501-JCC, 2014 WL 12787979, at *5 3 (W.D. Wash. Feb. 18, 2014). See also Ngo v. Senior Operations, LLC, No. C18-1313RSL, 2020 4 5 WL 2614737, at *7 (W.D. Wash. May 22, 2020) (declining to dismiss an emotional distress 6 claim “simply because it raises the specter of a double recovery. Parties are permitted to assert 7 claims in the alternative, and any concerns regarding the appropriate calculation of damages at 8 trial can be addressed in the verdict form or, if need be, the remittitur process.”). Because the tort 9 claims would not be subject to dismissal as duplicative, the proposed amendment is not futile. 10 Defendant requests, in the alternative, that if leave to amend is granted, it should be given 11 12 an opportunity for additional interrogatories and time in which to depose plaintiff regarding the 13 new aspects of his amended complaint. Plaintiff did not respond to this request. 14 15 For all of the foregoing reasons, plaintiff’s motion to amend is GRANTED. Plaintiff may, 16 within fourteen days of the date of this Order, file a second amended complaint substantially in 17 18 the form of Dkt. # 19-3. Defendant is permitted to serve up to a total of 28 interrogatories and to 19 depose plaintiff for an additional 90 minutes regarding the new aspects of the amended 20 complaint. 21 22 Dated this 1st day of February, 2021. 23 Robert S. Lasnik 24 United States District Judge 25 26 27