1 The Honorable Barbara J. Rothstein
5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7
8 KING COUNTY,
9 Plaintiff, Civil Action No. 2:19-cv-508-BJR v. 10 ORDER DENYING MOTION FOR 11 VIRACON, INC., LEAVE TO AMEND FIRST AMENDED COMPLAINT 12 Defendant.
14 I. INTRODUCTION 15 Defendant Viracon, Inc. (“Viracon”) fabricated and sold insulating glass units (“IGUs”) 16 installed on an office building owned by Plaintiff King County. King County alleges that the 17 IGUs are defective and instituted this lawsuit against Viracon and two other defendants in April 18 19 2019 and filed a First Amended Complaint in May 2019. Dkt. Nos. 1, 12. Currently before the 20 Court is King County’s motion for leave to amend the First Amended Complaint to add a claim 21 for punitive damages. Dkt. No. 77. Viracon opposes the motion. Dkt. No. 98. Having reviewed 22 the motion, the opposition and reply thereto, the record of the case, and the relevant legal 23 authorities, the Court will deny the motion. The reasoning for the Court’s decision follows. 24
26 27 1 II. BACKGROUND 2 A. Factual Background 3 At the center of this lawsuit is the “Chinook Building”—an office building located in 4 downtown Seattle that was built in 2007. Dkt. No. 12 at ¶ 5.1. The Chinook Building has what the 5 parties refer to as a “curtainwall” exterior—an exterior comprised of IGUs that were 6 7 manufactured and sold by Viracon. Id. at 5.2. IGUs consist of two or more panes of glass 8 separated by a metal spacer enclosing a hermetically sealed air space. Dkt. No. 70 at ¶ 2. IGUs are 9 fabricated using a sealant made from polyisobutylene-based sealant (“PIB-based sealant”). Id. at ¶ 10 4. Historically, Viracon used only black PIB-based sealant but, beginning in 2002, Viracon added 11 gray PIB-based sealant as an option for its customers. Id. ¶¶ 7-8. The IGUs installed on the 12 Chinook Building are fabricated with gray PIB-based sealant. Dkt. No. 12 at ¶ 5.4. 13 King County alleges, and Viracon concedes, that the gray PIB-based sealant in the 14 15 Chinook Building’s IGUs is failing, causing a film to migrate “into the sightlines and glass of the 16 [IGUs].” Id. at 5.10; Dkt. No. 84 at 6. King County claims that at the time that the IGUs were 17 installed, Viracon knew that the gray PIB-based sealant was “defective” and “not suitable for” the 18 Chinook Building. Dkt. No. 12 at ¶ 5.13. Nevertheless, King County alleges, Viracon “did 19 nothing to prevent” the IGUs from being installed on the Chinook Building. Id. at ¶ 5.15. Instead, 20 the County claims, Viracon “prepared and disseminated product literature indicating that [gray 21 PIB-based sealant] performed as well as [black PIB-based sealant] and could be used 22 23 interchangeably with identical results.” Id. 24 B. Procedural Background 25 King County originally asserted three claims again Viracon: violation of the Washington 26 Products Liability Act (“WPLA”), violation of the Washington Consumer Protection Act 27 1 (“WCPA”), and common law fraud.1 See generally Dkt. No. 12. Important here, King County 2 alleged that “[a]pplying Washington choice of law rules”, Viracon’s fraudulent actions entitled 3 the County to punitive damages under Minnesota law. Id. at ¶ 13.2. 4 Viracon moved to dismiss the First Amended Complaint in its entirety. Dkt. No. 29. In a 5 decision dated December 4, 2019 (“the December 4, 2019 Order”), this Court dismissed King 6 7 County’s WPLA claim but denied the motion as to the WCPA and common law fraud claims. 8 Dkt. No. 54. In addition, the Court noted that Minnesota law prohibits a plaintiff from stating a 9 claim for punitive damages in its original complaint. Dkt. No. 54 at 12. As such, the Court 10 concluded that “King County’s claim for punitive damages is premature and must be dismissed.” 11 Id. 12 Prior to the foregoing motion practice, on July 23, 2019, this Court entered the Order 13 Setting Trial Date and Related Dates, which sets the dates that govern this lawsuit (the “Case 14 15 Management Order”). Dkt. No. 39. The Case Management Order set the deadline to amend 16 pleadings as August 30, 2019. On March 16, 2020—three months after this Court struck King 17 County’s request for punitive damages as premature and over four months after the deadline to 18 amend pleadings expired—the parties requested a sixty-day extension to all “unexpired 19 deadlines” in the Case Management Order, which this Court granted. Dkt. Nos. 58, 59. Notably, 20 King County did not request that the deadline to amend pleadings be extended. On May 26, 2020, 21 the parties once again requested that the Court extend the remaining case management deadlines, 22 23 which this Court granted. Dkt. Nos. 62-63. Once again, King County did not request that the 24 Court modify the deadline to amend pleadings. 25 26 1 King County also named Quanex IG Systems, Inc. and Truseal Technologies, Inc. as defendants 27 in this lawsuit, but each was dismissed from this action on October 29, 2019. Dkt. No. 53 1 III. DISCUSSION 2 King County moves for leave to amend the First Amended Complaint to seek punitive 3 damages against Viracon—nine months after this Court dismissed such claims as premature in the 4 December 4, 2019 Order. The County brings the motion pursuant to Federal Rule of Civil 5 Procedure (“FRCP”) 15. Dkt. No. 77 at 1. However, as explained above, the deadline to amend 6 7 pleadings in this case expired over a year ago, on August 30, 2019. See Dkt. No. 39. Therefore, 8 King County must first request modification of the Case Management Order under FRCP 16 and 9 satisfy Rule 16’s good cause standard before it may request leave to amended under FRCP 15. 10 DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017), cert. 11 denied, 138 S. Ct. 1559 (2018) (quoting In re W. States Wholesale Nat. Gas Antitrust Litig., 715 12 F.3d 716, 737 (9th Cir. 2013) (“Where, as here, a party seeks leave to amend after the deadline set 13 in the scheduling order has passed, the party’s request is judged under [FRCP] 16’s ‘good cause’ 14 15 standard rather than the ‘liberal amendment policy’ of [FRCP] 15(a).”). 16 Here, King County does not request that this Court modify the Case Management Order to 17 extend the deadline to amend pleadings; it merely moves to amend the First Amended Complaint. 18 This, alone, is a sufficient basis to deny the motion. U.S. Dominator, Inc. v. Factory Ship Robert 19 E. Rosoff, 768 F.2d 1099, 1104 (9th Cir. 1985), superseded by statute on other grounds as 20 recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) (a court may 21 deny as untimely a motion filed after the scheduling order cut-off date where no request to modify 22 23 the order has been made); Lockridge v. City of Tacoma, 315 F.R.D. 596, 599 (W.D. Wash. 2014) 24 (same). 25 King County argues that seeking relief under FRCP 16 is not necessary because the 26 “December 4, 2019 Order invited a later motion, after discovery had substantively demonstrated 27 1 evidence of punitive damages.” Dkt. No. 114 at 9. King County misunderstands the nature of the 2 December 4, 2019 Order.
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1 The Honorable Barbara J. Rothstein
5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7
8 KING COUNTY,
9 Plaintiff, Civil Action No. 2:19-cv-508-BJR v. 10 ORDER DENYING MOTION FOR 11 VIRACON, INC., LEAVE TO AMEND FIRST AMENDED COMPLAINT 12 Defendant.
14 I. INTRODUCTION 15 Defendant Viracon, Inc. (“Viracon”) fabricated and sold insulating glass units (“IGUs”) 16 installed on an office building owned by Plaintiff King County. King County alleges that the 17 IGUs are defective and instituted this lawsuit against Viracon and two other defendants in April 18 19 2019 and filed a First Amended Complaint in May 2019. Dkt. Nos. 1, 12. Currently before the 20 Court is King County’s motion for leave to amend the First Amended Complaint to add a claim 21 for punitive damages. Dkt. No. 77. Viracon opposes the motion. Dkt. No. 98. Having reviewed 22 the motion, the opposition and reply thereto, the record of the case, and the relevant legal 23 authorities, the Court will deny the motion. The reasoning for the Court’s decision follows. 24
26 27 1 II. BACKGROUND 2 A. Factual Background 3 At the center of this lawsuit is the “Chinook Building”—an office building located in 4 downtown Seattle that was built in 2007. Dkt. No. 12 at ¶ 5.1. The Chinook Building has what the 5 parties refer to as a “curtainwall” exterior—an exterior comprised of IGUs that were 6 7 manufactured and sold by Viracon. Id. at 5.2. IGUs consist of two or more panes of glass 8 separated by a metal spacer enclosing a hermetically sealed air space. Dkt. No. 70 at ¶ 2. IGUs are 9 fabricated using a sealant made from polyisobutylene-based sealant (“PIB-based sealant”). Id. at ¶ 10 4. Historically, Viracon used only black PIB-based sealant but, beginning in 2002, Viracon added 11 gray PIB-based sealant as an option for its customers. Id. ¶¶ 7-8. The IGUs installed on the 12 Chinook Building are fabricated with gray PIB-based sealant. Dkt. No. 12 at ¶ 5.4. 13 King County alleges, and Viracon concedes, that the gray PIB-based sealant in the 14 15 Chinook Building’s IGUs is failing, causing a film to migrate “into the sightlines and glass of the 16 [IGUs].” Id. at 5.10; Dkt. No. 84 at 6. King County claims that at the time that the IGUs were 17 installed, Viracon knew that the gray PIB-based sealant was “defective” and “not suitable for” the 18 Chinook Building. Dkt. No. 12 at ¶ 5.13. Nevertheless, King County alleges, Viracon “did 19 nothing to prevent” the IGUs from being installed on the Chinook Building. Id. at ¶ 5.15. Instead, 20 the County claims, Viracon “prepared and disseminated product literature indicating that [gray 21 PIB-based sealant] performed as well as [black PIB-based sealant] and could be used 22 23 interchangeably with identical results.” Id. 24 B. Procedural Background 25 King County originally asserted three claims again Viracon: violation of the Washington 26 Products Liability Act (“WPLA”), violation of the Washington Consumer Protection Act 27 1 (“WCPA”), and common law fraud.1 See generally Dkt. No. 12. Important here, King County 2 alleged that “[a]pplying Washington choice of law rules”, Viracon’s fraudulent actions entitled 3 the County to punitive damages under Minnesota law. Id. at ¶ 13.2. 4 Viracon moved to dismiss the First Amended Complaint in its entirety. Dkt. No. 29. In a 5 decision dated December 4, 2019 (“the December 4, 2019 Order”), this Court dismissed King 6 7 County’s WPLA claim but denied the motion as to the WCPA and common law fraud claims. 8 Dkt. No. 54. In addition, the Court noted that Minnesota law prohibits a plaintiff from stating a 9 claim for punitive damages in its original complaint. Dkt. No. 54 at 12. As such, the Court 10 concluded that “King County’s claim for punitive damages is premature and must be dismissed.” 11 Id. 12 Prior to the foregoing motion practice, on July 23, 2019, this Court entered the Order 13 Setting Trial Date and Related Dates, which sets the dates that govern this lawsuit (the “Case 14 15 Management Order”). Dkt. No. 39. The Case Management Order set the deadline to amend 16 pleadings as August 30, 2019. On March 16, 2020—three months after this Court struck King 17 County’s request for punitive damages as premature and over four months after the deadline to 18 amend pleadings expired—the parties requested a sixty-day extension to all “unexpired 19 deadlines” in the Case Management Order, which this Court granted. Dkt. Nos. 58, 59. Notably, 20 King County did not request that the deadline to amend pleadings be extended. On May 26, 2020, 21 the parties once again requested that the Court extend the remaining case management deadlines, 22 23 which this Court granted. Dkt. Nos. 62-63. Once again, King County did not request that the 24 Court modify the deadline to amend pleadings. 25 26 1 King County also named Quanex IG Systems, Inc. and Truseal Technologies, Inc. as defendants 27 in this lawsuit, but each was dismissed from this action on October 29, 2019. Dkt. No. 53 1 III. DISCUSSION 2 King County moves for leave to amend the First Amended Complaint to seek punitive 3 damages against Viracon—nine months after this Court dismissed such claims as premature in the 4 December 4, 2019 Order. The County brings the motion pursuant to Federal Rule of Civil 5 Procedure (“FRCP”) 15. Dkt. No. 77 at 1. However, as explained above, the deadline to amend 6 7 pleadings in this case expired over a year ago, on August 30, 2019. See Dkt. No. 39. Therefore, 8 King County must first request modification of the Case Management Order under FRCP 16 and 9 satisfy Rule 16’s good cause standard before it may request leave to amended under FRCP 15. 10 DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017), cert. 11 denied, 138 S. Ct. 1559 (2018) (quoting In re W. States Wholesale Nat. Gas Antitrust Litig., 715 12 F.3d 716, 737 (9th Cir. 2013) (“Where, as here, a party seeks leave to amend after the deadline set 13 in the scheduling order has passed, the party’s request is judged under [FRCP] 16’s ‘good cause’ 14 15 standard rather than the ‘liberal amendment policy’ of [FRCP] 15(a).”). 16 Here, King County does not request that this Court modify the Case Management Order to 17 extend the deadline to amend pleadings; it merely moves to amend the First Amended Complaint. 18 This, alone, is a sufficient basis to deny the motion. U.S. Dominator, Inc. v. Factory Ship Robert 19 E. Rosoff, 768 F.2d 1099, 1104 (9th Cir. 1985), superseded by statute on other grounds as 20 recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) (a court may 21 deny as untimely a motion filed after the scheduling order cut-off date where no request to modify 22 23 the order has been made); Lockridge v. City of Tacoma, 315 F.R.D. 596, 599 (W.D. Wash. 2014) 24 (same). 25 King County argues that seeking relief under FRCP 16 is not necessary because the 26 “December 4, 2019 Order invited a later motion, after discovery had substantively demonstrated 27 1 evidence of punitive damages.” Dkt. No. 114 at 9. King County misunderstands the nature of the 2 December 4, 2019 Order. Rather than give King County the green light to leapfrog over FRCP 3 16(b)(4)’s admonition that a scheduling order “may be modified only for good cause and with the 4 judge’s consent”, the December 4, 2019 Order placed King County on notice that the Case 5 Management Order required amendment. 6 7 Moreover, even if this Court were to interpret King County’s motion to amend the First 8 Amended Complaint as a motion to amend the Case Management Order—something the Ninth 9 Circuit has cautioned against, see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-9 10 (9th Cir. 1992)—King County would not clear FRCP 16’s “good cause” requirement. “Unlike 11 FRCP 15’s liberal amendment policy which focuses on the bad faith of the party seeking to 12 interpose an amendment and the prejudice to the opposing party, FRCP 16’s ‘good cause’ 13 standard primarily considers the diligence of the party seeking the amendment.” Id.; see also, 14 15 DRK Photo, 870 F.3d at 989 (stating that the “central inquiry” of whether good cause exists “is 16 whether the requesting party was diligent in seeking the amendment”). Simply put, if the moving 17 party was not diligent, “the inquiry should end.” Johnson, 975 F.2d at 609. 18 The Court concludes that King County was not diligent. King County waited over nine 19 months to seek leave to amend its complaint. In that time, the Case Management Order was 20 amended twice at the parties’ request, discovery closed2, the dispositive motion deadline passed, 21 and both parties filed for summary judgment.3 King County alleges that it needed to wait until 22 23
24 2 The discovery deadline was August 21, 2020; however, per King County’s request, discovery was 25 reopened for thirty (30) days on October 26, 2020 for the limited purpose of allowing the County to take one additional deposition. See Dkt. Nos. 63, 82. 26 3 King County’s motion was for partial summary judgment and it has since been withdrawn. Dkt. 27 Nos. 76, 113. 1 after the completion of discovery in order to substantiate its claim for punitive damages, but such 2 a claim makes little sense. First, the Court notes that a number of the documents the County offers 3 to support its motion were obtained by its counsel in 2016 as part of another litigation. See e.g., 4 Dkt. No. 79, Exs. 23-25, 27, and 34. Likewise, King County relies on deposition testimony 5 obtained by its counsel in that same litigation. Id. at Exs. 7, 16, 22, 28-29, and 36. Thus, King 6 7 County was in possession of this information long before the expiration of the discovery deadline. 8 Indeed, its counsel was in possession of this information before this case was filed. 9 Second, King County did not need to present evidence that established its entitlement to 10 punitive damages in its motion to amend the complaint; rather, the County simply needed to 11 allege a prima facie case for such damages. See Target Corp. v. LCH Pavement Consultants, 12 LLC, 960 F. Supp. 2d 999, 1010 (D. Minn. 2013) (“[I]n reaching the determination whether the 13 plaintiff has established a prima facie case for punitive damages, the Court makes no credibility 14 15 rulings and does not consider any challenge, by cross-examination or otherwise, to the plaintiff’s 16 proof, but the Court must carefully scrutinize the evidence presented by the moving party to make 17 sure that it amounts to a prima facie showing that the substantive requirements for punitive 18 damages have been met.”). A deep dive into discovery was not necessary to allege a prima facie 19 claim for punitive damages in this case. 20 Finally, allowing King County to amend its complaint at this stage of the litigation would 21 negate any semblance of adherence to this Court’s Case Management Order. Discovery is 22 23 closed.4 Viracon’s summary judgment motion is fully briefed and the matter is on the brink of 24 trial. The parties have already been granted significant extensions. Allowing King County to 25 amend its complaint would undoubtedly require the reopening of discovery so that King County 26
27 4 See footnote 2. 1 can obtain evidence of Viracon’s financial condition. See Mighty Enterprises, Inc. v She Hong 2 Industrial Co. Ltd., 745 Fed. Appx. 706, 709 (Ninth Cir. 2018) (noting that “the party seeking 3 punitive damages bears [the] burden” of establishing “the defendant’s financial condition”). This, 4 presumably, would lead to the filing of an additional summary judgment motion. Simply put, 5 even if King County was correct that the December 4, 2019 Order excused it from complying 6 7 with Rule 16, the County has simply waited too long to bring the motion. 8 IV. CONCLUSION 9 For the foregoing reasons, the Court HEREBY DENIES King County’s Motion for Leave 10 to Amend to Allege Punitive Damages (Dkt. No. 77). 11 Dated this 16th day of November 2020. 12 A 13
14 Barbara Jacobs Rothstein U.S. District Court Judge 15 16 17
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