Roush v. Akal Security Inc

Opinion

1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

Oct 09, 2020 2 SEAN F. MCAVOY, CLERK 3

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 RONALD W. ROUSH and JAMES H. HUNTER, NO: 2:17-CV-358-RMP 8 Plaintiffs, ORDER GRANTING 9 DEFENDANT’S SUMMARY v. JUDGMENT MOTION AND 10 DENYING PLAINTIFFS’ PARTIAL AKAL SECURITY, INC, SUMMARY JUDGMENT MOTION 11 Defendant. 12

13 BEFORE THE COURT is a Motion for Partial Summary Judgment from 14 Plaintiffs Ronald Roush and James Hunter, ECF No. 86, and a Motion for Summary 15 Judgment from Defendant Akal Security, Inc. (“Akal”), ECF No. 113, and the 16 parties’ Stipulated Voluntary Dismissal of Counterclaims, ECF No. 132. The Court 17 has reviewed the parties’ filings with respect to all motions, the remaining record, 18 the relevant law, and is fully informed. 19 BACKGROUND 20 Unless otherwise noted, the following background facts are undisputed. On 21 July 23, 2012, the United States Transportation Security Administration (“TSA”) 1 issued Solicitation number HSTS05-12-R-SPP038 (the “Solicitation”) for security 2 services at the Kansas City International Airport (“MCI”) in Missouri. ECF No. 108

3 at 2. Plaintiffs contend that Akal contacted them by telephone on or around 4 September 5, 2012, to solicit their names and professional qualifications for purposes 5 of submitting a bid in response to the Solicitation. ECF No. 112 at 4; see also ECF

6 Nos. 31-1 and 31-2. Defendant maintains that Defendant already had Plaintiffs’ 7 names, but does not dispute that Defendant and its subcontractor, AWD Management 8 Services, Inc. (“AWD”) contacted Plaintiffs for telephone interviews to “determine 9 whether to offer Plaintiffs a position to work at MCI.” ECF No. 108 at 3.

10 Subsequent to Plaintiffs’ telephone conversations with Akal and AWD 11 representatives, on or around September 5, 2012, Roush and Hunter submitted their 12 resumes, detailing their experience in the aviation security field, to Akal via

13 subcontractor AWD. ECF Nos. 86-4 at 1; 86-5 at 1; and 108 at 3. 14 Akal submitted its bid proposal to TSA on or before the submission deadline 15 of March 4, 2013. ECF Nos. 74 at 4; 112 at 4. Akal’s bid proposal contained 16 Plaintiffs’ names and professional qualifications as proposed “Key Personnel.” ECF

17 No. 112 at 4−5. 18 TSA awarded the MCI contract to Akal on February 24, 2014. ECF Nos. 20 19 at 5; 74 at 5. Through a different subcontractor, Synergy Solutions, Inc.

20 (“Synergy”), Akal hired Plaintiffs for their respective positions at MCI. ECF Nos. 21 74 at 18; 86-14; and 86-15. 1 Plaintiffs both declare for purposes of these motions that they became aware 2 that Akal had used their names and credentials in its bid proposal on February 24,

3 2014, when they reviewed the MCI contract award and saw that they were included 4 in Section 1.7, “Key Personnel and Facilities.” ECF Nos. 86-4 at 1; 86-5 at 1. Both 5 Plaintiffs declare that they did not give Akal consent to use their names and

6 credentials in its bid proposal. Id. Plaintiff Roush testified at deposition that 7 “arguably” he would have “been okay” with his name and credentials being included 8 in the bid proposal had he and Hunter “gone ahead and worked on the project.” ECF 9 No. 125-1 at 14.

10 By mid-March 2014, a competitor of Akal’s filed a protest contesting the 11 award of the contract to Akal, and TSA issued a stop work order delaying the start of 12 the contract. ECF Nos. 74 at 18; 125-1 at 16−17. Plaintiffs were aware of the

13 protest and understood that Akal could not start working on the MCI project until the 14 stop work order was removed. See ECF Nos. 116-12 at 1; 125-1 at 14. Plaintiffs did 15 not receive compensation from Akal before or after the contract award on February 16 24, 2014. Email correspondence from the President of Synergy to Plaintiffs dated

17 March 19, 2014, indicates that Plaintiffs were exploring avenues of receiving 18 income from Akal during the bid protest, and Synergy was open to that discussion. 19 ECF No. 109-9. Similarly, Roush recalled a conversation with the Synergy

20 President from early August 2014, in which she agreed to submit to Akal the 21 1 transition expenses that Plaintiffs believed should be allowable, asserting that she 2 could make no promises. ECF No. 109-1 at 14.

3 At some point in August 2014, Plaintiffs consulted with a lawyer about the 4 possibility of pursuing legal action against Akal. ECF Nos. 116-2 at 14; 116-3 at 5 1−2. Roush testified at his deposition that Plaintiffs’ inquiry with an attorney was

6 precipitated by “the fact that [Plaintiffs] were named as key personnel and had 7 essentially been in limbo for, at this point . . . five months, six months, since the stop 8 work order had been put into place . . . .” ECF No. 116-2 at 15. 9 In a letter to Akal’s subcontractor Synergy dated September 5, 2014,

10 Plaintiffs’ then-counsel1 conveyed “the sense of disappointment [his] clients share in 11 having to retain legal counsel to resolve their grievances over what has transpired 12 thus far with their employment relationship with Synergy.” ECF No. 109-2 at 1.

13 Plaintiffs’ counsel expanded that Plaintiffs believed, at the time of the letter, that 14 Synergy should have taken a “pro-active position in securing their continued 15 commitment” to Synergy with respect to the MCI security contract, but instead had 16 “inappropriately shifted” “certain inequities and burdens” to Plaintiffs, causing them

17 “significant financial hardships” waiting for a start date while the protest proceeded 18 at the United States Court of Claims. Id. at 1−2. Plaintiffs’ counsel conveyed that 19

20 1 Plaintiffs have not appeared through counsel in the present litigation and instead 21 1 the status quo at the time of the letter was “unacceptable” to Plaintiffs, and “if 2 suitable agreements cannot be reached that resolve all my clients’ issues, they will

3 have no alternative but to revoke their acceptance of employment, and to actively 4 seek employment with organizations that will better appreciate their expertise.” Id. 5 at 2. The September 5, 2014 letter from Plaintiffs’ counsel alleged no misconduct

6 by Akal in naming Plaintiffs as key personnel in the bid, but asserted that including 7 Plaintiffs as key personnel risked certain ramifications for Synergy and Akal: 8 Of course upon the revocation of their acceptance of employment, Synergy will be required to inform the Contracting Officer that the Key 9 Personnel identified in the Bid Contract have changed. I cannot say with any certainty that such notice will void the Bid, but it is certainly 10 likely that such change will delay the award while new Key Personnel are located and the appropriate vetting process is completed. I should 11 think the potential for another Stop Order is a distinct possibility as well. I present my clients [sic] intentions without cloud of threat, and 12 they should not be received as such. However, my clients' circumstances have left them little alternative but to place the issues 13 squarely before Synergy so that it can do what it must do under the circumstances. Stated another way, my clients are going to make certain 14 business decisions that are in their best interests. They expect no less from Synergy and Akal. Should Synergy and Akal find it in their best 15 interests to reach an agreement with Messrs. Hunter and Roush that will keep them as Key Personnel, my clients are amenable to reaching 16 agreements to all's mutual benefit.

17 . . . The uncertainty that the parties find themselves in is directly related to the lack of a written agreement that could have provided for the types 18 of contingencies that currently exist. Synergy made a business decision not to enter into an employment contract with my clients. I presume 19 that the risks of employment contracts were outweighed by the benefits of at-will employment. It would seem obvious now that bidding on a 20 hundred million dollar plus contract without having your Key Personnel under contract was a risk that was either not considered, or 21 considered and not fully appreciated. Whatever difficulties Synergy 1 may suffer should my clients removed [sic] themselves as Key Personnel, are the result of prior business decisions it has made, and not 2 the consequences of the business decisions my clients now contemplate. Synergy has demonstrated no sense of equitable 3 compassion for the circumstances in which it has placed Mr. Hunter and Mr. Roush. All understanding they have given Synergy as their 4 prospective employer has been exhausted. There remains only the question of whether the difficulties can be overcome through good faith 5 discussions.

6 Id. at 3. 7 Synergy responded to Plaintiffs’ counsel’s September 5, 2014 letter through 8 its counsel on October 8, 2014. ECF No. 74-1 at 1. In that letter, Synergy 9 “rescinded” Plaintiff’s employment offers, after Akal “reorganized the structure of 10 the team.” Id. 11 The Court of Federal Claims resolved the bid protest in TSA’s favor on 12 November 14, 2014, and TSA issued Akal a Notice to Proceed with the MCI 13 security contract approximately four days later. ECF Nos. 20 at 8; 74 at 7. Viewing 14 the facts in the light most favorable to Plaintiffs, Roush and Hunter were still 15 included as key personnel under the contract award at the time that the Court of 16 Federal Claims resolved the bid protest. See ECF No. 116-11. However, by 17 February 3, 2015, TSA substituted individuals other than Plaintiffs as key personnel 18 in the MCI contract with Akal. See ECF No. 116-5 at 1, 6. 19 Plaintiffs filed their original Complaint in Spokane County Superior Court on

20 September 20, 2017. ECF No. 1-1. Plaintiffs included two tort claims in their initial 21 pleading: (1) invasion of privacy or appropriation of a name or likeness; and (2) 1 outrage or intentional infliction of emotional distress. After Defendant removed 2 Plaintiffs’ complaint to federal court, Plaintiffs filed a First Amended Complaint on

3 April 10, 2018, that added a third Washington state law claim: unjust enrichment. 4 ECF No. 20 at 11−14. Plaintiffs seek compensatory damages, attorney’s fees and 5 costs, and other relief, including equitable relief, as the Court finds to be just and

6 proper. Id. at 15. Defendant consented to Plaintiffs’ amendment of their complaint 7 to add a new cause of action. ECF No. 19. 8 Defendant filed an Amended Answer to Plaintiffs’ First Amended Complaint 9 in which Defendant raised twenty affirmative defenses to Plaintiffs’ alleged claims

10 and stated three counterclaims: (1) civil conspiracy; (2) tortious interference in a 11 business expectancy; and (3) abuse of process by filing the above-captioned lawsuit. 12 ECF No. 74 at 12−27. In resolving a Motion to Dismiss Defendant’s counterclaims

13 by Plaintiffs, the Court dismissed with leave to amend Defendant’s tortious 14 interference counterclaim and allowed Defendant’s abuse of process and civil 15 conspiracy counterclaims to proceed. ECF No. 93. Defendant did not amend its 16 tortious interference counterclaim.

17 Through the instant motions: Plaintiffs seek summary judgment against 18 Defendant on Plaintiffs’ claim of appropriation, ECF No. 86 at 1; Defendant seeks 19 summary judgment dismissal of all of Plaintiffs’ claims, ECF No. 113 at 1; and the

20 parties agree that Defendant’s remaining counterclaims shall be dismissed without 21 prejudice and without cost shifting or an award of fees, ECF No. 132 at 2. 1 LEGAL STANDARD 2 When parties file cross-motions for summary judgment, the Court considers

3 each motion on its own merits. See Fair Housing Council of Riverside Cty., Inc. v. 4 Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). A court may grant summary 5 judgment where “there is no genuine dispute as to any material fact” of a party’s

6 prima facie case, and the moving party is entitled to judgment as a matter of law. 7 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 8 (1986). A genuine issue of material fact exists if sufficient evidence supports the 9 claimed factual dispute, requiring “a jury or judge to resolve the parties’ differing

10 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 11 809 F.2d 626, 630 (9th Cir. 1987). A key purpose of summary judgment “is to 12 isolate and dispose of factually unsupported claims.” Celotex, 477 U.S. at 324.

13 The moving party bears the burden of showing the absence of a genuine issue 14 of material fact, or in the alternative, the moving party may discharge this burden by 15 showing that there is an absence of evidence to support the nonmoving party’s prima 16 facie case. Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party

17 to set forth specific facts showing a genuine issue for trial. See id. at 324. The 18 nonmoving party “may not rest upon the mere allegations or denials of his pleading, 19 but his response, by affidavits or as otherwise provided . . . must set forth specific

20 facts showing that there is a genuine issue for trial.” Id. at 322 n.3 (internal 21 quotations omitted). 1 The Court will not infer evidence that does not exist in the record. See Lujan 2 v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). However, the Court will

3 “view the evidence in the light most favorable” to the nonmoving party. Newmaker 4 v. City of Fortuna, 842 F.3d 1108, 1111 (9th Cir. 2016). “The evidence of the non- 5 movant is to be believed, and all justifiable inferences are to be drawn in his favor.”

6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 7 DISCUSSION 8 Statute of Limitations 9 Federal courts exercising diversity jurisdiction apply state law to determine

10 when a cause of action accrues on state law claims. Walker v. Armco Steel Corp., 11 446 U.S. 740, 751 (1980) (holding that whether a complaint tolls the applicable 12 statute of limitations is controlled by state law); see also Norco Construction, Inc. v.

13 King Cty., 801 F.3d 1143, 1145 (9th Cir. 1986). This action is before the Court 14 based on diversity jurisdiction. See ECF No. 1 at 3; 28 U.S.C. §§ 1332, 1446. 15 In Washington State, “actions can only be commenced . . . after the cause of 16 action has accrued.” Revised Code of Washington (“RCW”) § 4.16.005. A cause of

17 action accrues when “the plaintiff discovers, or in the reasonable exercise of 18 diligence should discover, the elements of the cause of action.” 1000 Virginia Ltd. 19 P’ship v. Vertecs Corp., 158 Wn.2d 566, 575−76 (2006). When a harm reasonably

20 goes unnoticed, the statute does not run until the plaintiff discovered the damage. 21 See Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 219−20 (1975). The discovery rule 1 applies only in cases where the plaintiff did not know, or could not know, that a 2 cause of action had accrued. In re Estates of Hibbard, 118 Wn.2d 737, 743 n. 15

3 (1992). 4 Washington’s catch-all statute of limitations, RCW § 4.16.130, is two years. 5 Likewise, RCW § 4.16.100 provides, in relevant part, that actions for libel, slander,

6 assault, assault and battery, or false imprisonment must be brought within two years. 7 However, the Washington Court of Appeals recently held that the three-year statute 8 of limitations provided by RCW § 4.16.080 applies to an invasion of privacy by 9 publication claim because it does not include intent as an essential element. Emeson

10 v. Dep’t of Corr., 194 Wn. App. 617, 638−39 (Wash. Ct. App. 2016); see also RCW 11 § 4.16.080(2) (providing a three-year limitations period for actions “for taking, 12 detaining, or injuring personal property . . . or for any other injury to the person or

13 rights of another not hereinafter enumerated”) and (3) (providing a three-year 14 limitations period for actions “upon a contract or liability, express or implied, which 15 is not in writing, and does not arise out of any written instrument”). 16 Defendant argues that all three of Plaintiffs’ claims are barred by a three-year

17 statute of limitations. ECF No. 113 at 2. Defendant contends that Plaintiffs were 18 aware no later than February 24, 2014, that Defendant had included Plaintiffs’ 19 names in the bid proposal, but filed this lawsuit over three years later, on September

20 20, 2017. Id. Plaintiffs counter that all of their claims are timely because Plaintiffs 21 definitively learned that Defendant did not intend to compensate them for the use of 1 their names when Defendant rescinded the offers of employment on October 8, 2 2014. ECF No. 118 at 2.

3 The Court addresses the timeliness of each of Plaintiffs’ claims alongside the 4 parties’ merits arguments regarding the elements of each claim, as the issues are 5 intertwined.

6 Invasion of Privacy by Appropriation 7 Plaintiffs allege in the first count of their First Amended Complaint that 8 Defendant invaded their privacy by appropriating their names or likenesses when 9 Defendant incorporated their names and professional qualifications into the bid

10 proposal without Plaintiffs’ consent. ECF No. 20 at 11. 11 Washington State recognizes a common law right of privacy, and individuals 12 may bring a tort claim for invasion of that right. Reid v. Pierce Cty., 136 Wn.2d

13 195, 206 (Wash. 1998). Misappropriation of one’s name or likeness is one of four 14 distinct theories by which an invasion of privacy claim may be pursued; the other 15 theories of invasion of privacy include intrusion, disclosure, and false light. 16 Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466, 469 (Wash. 1986) see also

17 Restatement (2d) of Torts § 652A (1977) (reciting the same four privacy torts). 18 To prevail on an invasion of privacy by appropriation claim, a plaintiff must 19 show that defendant appropriated the plaintiff’s name or likeness to defendant’s own

20 use or benefit. Restatement (2d) of Torts § 652C (1977); see also Aronson v. Dog 21 Eat Dog Films, Inc., 738 F. Supp. 1104, 1113 (W.D. Wash. 2010) (referencing 1 Restatement (2d) of Torts §§ 652A-E (1977) for the elements of a Washington state 2 appropriation claim). The applicable statute of limitations for an invasion of privacy

3 by appropriation claim is no longer than three years. See Emeson, 194 Wn. App. 4 617 (Wash. Ct. App. 2016); see also RCW § 4.16.080(2) (providing a three-year 5 limitations period for actions “for taking, detaining, or injuring personal property . . .

6 or for any other injury to the person or rights of another not hereinafter 7 enumerated”). 8 With respect to whether Plaintiffs’ common law invasion of privacy by 9 appropriation claim is timely, Defendant proposes that the claim accrued either on

10 February 24, 2014, the date on which Plaintiffs acknowledge they were aware 11 Defendant had used their names and credentials on the bid proposal, or by August 12 2014, the time by which Plaintiffs were consulting with an attorney regarding

13 potential legal action against Defendant. ECF No. 123 at 5. Plaintiffs posit that 14 having received employment offers from subcontractor Synergy in March 2014, 15 Plaintiffs had no way of knowing before Synergy rescinded the offers on October 8, 16 2014, that Defendant did not intend to compensate Plaintiffs. ECF No. 118 at 5.

17 The Court finds that whether Defendant planned to rescind Plaintiffs’ 18 employment offer is immaterial to the challenged action of whether Defendant used 19 Plaintiffs’ names and credentials to secure the MCI contract with the TSA. Plaintiffs

20 themselves assert that their “contention has always been that Akal appropriated their 21 names and credentials to win the TSA MCI contract[.]” ECF No. 118 at 4 (citing 1 First Amended Complaint). Moreover, an appropriation claim turns entirely on 2 whether Defendant is liable for using Plaintiffs’ names and credentials for

3 Defendant’s own use or benefit. See Restatement (2d) of Torts at § 652C. The 4 contract was awarded to Akal on February 24, 2014, and Plaintiffs were aware that 5 their names and credentials were included on the bid proposal that same date. ECF

6 Nos. 86-4 at 1; 86-5 at 1.2 Therefore, the invasion of privacy by appropriation claim 7 accrued by February 24, 2014, while Plaintiffs filed their original complaint on 8 September 20, 2017, more than three years later. See 1000 Virginia Ltd. P’ship, 158 9 Wn.2d at 575−76 (providing that a cause of action accrues when plaintiff discovers,

10 or in the reasonable exercise of diligence should discover, the elements of the cause 11 of action); ECF No. 1-1. 12 Consequently, Plaintiff’s common law invasion of privacy by appropriation

13 claim is untimely under the statute of limitations, and there is no genuine dispute as 14 to any material fact that precludes judgment as a matter of law for Defendant on this 15 claim. 16 Both parties note that Washington State also provides a statutory cause of

17 action for infringement of a “personality right”: 18

2 Plaintiffs refer once in their briefing to the propriety of tolling of a statute of 19 limitation in circumstances involving “fraudulent concealment.” ECF No. 118 at 20 4. However, the Court finds no need to analyze that issue given Plaintiffs’ acknowledgement that they knew that their names were included in the bid 21 1 Any person who uses or authorizes the use of a living or deceased individual’s or personality’s name, voice, signature, photograph, or 2 likeness, on or in goods, merchandise, or products entered into commerce in this state, or for purposes of advertising products, 3 merchandise, goods, or services, or for purposes of fundraising or solicitation of donations, or if any person disseminates or publishes 4 such advertisements in this state, without written or oral, express or implied consent of the owner of the right, has infringed such right. An 5 infringement may occur under this section without regard to whether the use or activity is for profit or not for profit. 6 RCW § 63.50.050. 7 Plaintiffs maintain that they mistakenly omitted reference to RCW ch. 63.60 8 in their First Amended Complaint. ECF No. 118 at 6. Defendant argues that even if 9 Plaintiffs intended to pursue a claim under the personality rights statute, without 10 referencing the statute in their First Amended Complaint, Plaintiffs do not plead the 11 elements for infringement of a personality right under the statute. ECF No. 114 at 7. 12 The Court cannot determine that RCW § 63.50.050 applies at all to the 13 circumstances of this case, as Plaintiffs do not seek relief related to any 14 advertisement, or solicitation of a donation. Therefore, the Court finds no basis to 15 infer an additional claim raised by Plaintiffs under this statute. 16 As a result, the Court grants summary judgment to Defendant on the invasion 17 of privacy by appropriation claim and denies Plaintiffs’ Motion for Partial Summary 18 Judgment. 19 / / / 20 / / / 21 1 Outrage/Intentional Infliction of Emotional Distress 2 Plaintiffs allege in their First Amended Complaint that Defendant’s acts or

3 omissions toward them “were outrageous, showed reckless indifference to the rights 4 and interests of Plaintiffs, and caused emotional distress to Plaintiffs over a period of 5 several years.” ECF No. 20 at 13. Plaintiffs allege that they were “denied any form

6 of compensation by Defendant,” and both Plaintiffs allegedly suffered emotional 7 distress as a result of Defendant’s conduct. Id. 8 “‘Outrage’ and ‘intentional infliction of emotional distress’ are synonyms for 9 the same tort.” Kloepfel v. Bokor, 149 Wn.2d 192, 193 n.1 (2003). A three-year

10 statute of limitations applies to the claim under RCW § 4.16.080(2). Cox v. Oasis 11 Physical Therapy, PLLC, 153 Wn. App. 176, 193 (Wash. Ct. App. 2009). A 12 plaintiff raising the claim must satisfy three elements: “(1) extreme and outrageous

13 conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual 14 result to plaintiff of severe emotional distress.” Kloepfel, 149 Wn.2d at 195. The 15 Washington Supreme Court has expanded that an intentional infliction of emotional 16 distress claim requires more than “a certain degree of rough language, unkindness

17 and lack of consideration” to which plaintiffs “must necessarily be hardened[.]” 18 Kloepfel, 139 Wn.2d at 196 (internal quotation omitted). 19 Defendant argues that the undisputed facts show that Plaintiffs’ intentional

20 infliction of emotion distress claim falls short as a matter of law. ECF No. 123 at 21 11. Defendant continues: “At bottom, Plaintiffs were offered jobs through Akal’s 1 subcontractor; they hired counsel and threatened to sue Akal’s subcontractor for not 2 paying them for the time before they began working; and their job offers were

3 rescinded. Akal did not engage in any conduct that is outrageous or that otherwise 4 supports this claim.” Id. 5 Plaintiffs counter that their intentional infliction of emotional distress claim is

6 well supported by evidence that: “Akal represented to Plaintiffs it would compensate 7 them for the use of their names through employment offers. Instead, Akal ignored 8 Plaintiffs for more than six months, leaving Plaintiffs without income and, in 9 Plaintiff Hunter’s case, without a residence. . . . Finally, after Plaintiffs dared to

10 address the issue through counsel, Akal’s only response - indirectly through its 11 subcontractor – was to eliminate Plaintiffs’ purported positions.” ECF No. 118 at 12 15−16 (internal citations omitted).

13 Viewing the facts in the light most favorable to Plaintiffs, the actions by 14 Defendant that Plaintiffs claim amounted to intentional infliction of emotional 15 distress include Synergy’s rescission of the employment offers on October 8, 2014, 16 which falls within the three-year limitations period before Plaintiffs’ initial

17 Complaint on September 20, 2017. 18 However, examining Plaintiffs’ recitation of the evidence that they argue 19 supports an intentional infliction of emotional distress claim, the Court finds that

20 there is no persistent question of material fact as to any of the requisite elements to 21 avoid summary judgment for Defendant. Plaintiffs cite to Defendant’s Amended 1 Answer for their bald statement that “Akal represented to Plaintiffs it would 2 compensate them for the use of their names through employment offers.” ECF No.

3 118 at 15 (citing ECF No. 74 at ¶17). However, Defendant’s Amended Answer, ¶ 4 17, denied Plaintiff’s allegations. ECF No. 74 at 5−6. Plaintiffs also assert that 5 Akal “ignored” Plaintiffs for six months, but Plaintiffs elsewhere acknowledged that

6 Akal could not start working on the MCI project until the stop work order was 7 removed. See ECF Nos. 116-12 at 1; 125-1 at 14. Plaintiffs have not set forth any 8 circumstances that a factfinder could find satisfies the requirements of extreme and 9 outrageous conduct or intentional or reckless infliction of emotional distress by

10 Defendant. See Kloepfel, 149 Wn.2d at 195. 11 With respect to the third element, that the conduct must have caused Plaintiffs 12 to suffer harm, there is no question of fact as to whether Plaintiff Hunter’s

13 difficulties with housing and both of Plaintiffs’ lack of income during the protest 14 period were the result of Defendant’s intentional or reckless actions. The record 15 does not support that the parties had agreed to any compensation for Plaintiffs 16 during the bidding or protest periods, so even if Plaintiffs, regrettably, suffered

17 extreme emotional distress during this time period, there is no evidence to support 18 causation. 19 All three essential elements of an outrage or intentional infliction of emotional

20 distress claim are lacking. See Kloepfel, 149 Wn.2d at 195. Accordingly, the Court 21 1 grants summary judgment to Defendant on Plaintiffs’ intentional infliction of 2 emotional distress claim.

3 Unjust Enrichment 4 Plaintiffs also raise an unjust enrichment claim in their First Amended 5 Complaint. ECF No. 20 at 13. Plaintiffs contend that they only furnished their

6 names and resumes to Defendant “under the belief that they were responding to a 7 contingent job offer,” and that Plaintiffs never realized any financial benefit from 8 Defendant’s use of Plaintiffs’ names and credentials in the TSA bid evaluation 9 process. Id. Plaintiffs further contend that Defendant “had knowledge that

10 Plaintiffs’ credentials had value and would be beneficial in its efforts to obtain the 11 MCI contract.” ECF No. 20 at 13. 12 Unjust enrichment claims provide for recovery for the value of a benefit

13 retained absent any contractual relationship where notions of fairness and justice 14 require it. Young v. Young, 164 Wn.2d 477, 484 (Wash. 2008). To sustain an unjust 15 enrichment claim, a plaintiff must establish: “‘a benefit conferred upon the 16 defendant by the plaintiff; an appreciation or knowledge by the defendant of the

17 benefit; and the acceptance or retention by the defendant of the benefit under such 18 circumstances as to make it inequitable for the defendant to retain the benefit 19 without the payment of its value.’” Id. (quoting Vailie Commc’ns, Ltd v. Trend Bus.

20 Sys., Inc., 61 Wn. App. 151, 159−60 (1991)). A three-year statute of limitations 21 applies to an unjust enrichment claim. RCW § 4.16.080(3). 1 As with Plaintiffs’ intentional infliction of emotional distress claim, 2 Defendant relies on the same arguments as the invasion of privacy by appropriation

3 claim to argue that the statute of limitation for Plaintiffs’ unjust enrichment claim 4 expired before Plaintiffs filed this lawsuit. ECF No. 123 at 10. Regarding the 5 substance of Plaintiffs’ unjust enrichment claim, Defendant argues that Plaintiffs

6 have not come forth with evidence supporting that their names had “any impact on 7 TSA’s decision to award Akal the contract.” ECF No. 123 at 10. Rather, Defendant 8 contends, TSA’s removal in 2015 of Plaintiffs’ names from the contract document 9 “supports the fact that TSA did not care at all whether Plaintiffs were going to be

10 involved at MCI.” Id. 11 Plaintiffs respond that they could have had no knowledge of Defendant’s 12 decision not to compensate them for their alleged role in securing the MCI contract

13 until Defendant rescinded their employment offers on October 8, 2014. ECF No. 14 118 at 5. With respect to the substance of their unjust enrichment claim, Plaintiffs 15 argue that Akal benefitted from the use of their names by being selected as the 16 contractor and that Defendant “cannot show that TSA failed to properly evaluate

17 Plaintiffs’ credentials as Key Personnel.” ECF Nos. 118 at 13; 86 at 11−12. 18 Plaintiffs further argue that “Akal fails to point out that TSA made the 2015 Key 19 Personnel contract modification at Akal’s request or that the modification was made

20 a year after the contract award.” ECF No. 118 at 14. Plaintiffs contend that these 21 1 facts support that Defendant benefitted from the use of their names upon receiving 2 the contract award. ECF No. 118 at 14.

3 As with the intentional infliction of emotional distress claim, the Court agrees 4 with the Plaintiffs’ argument that the unjust enrichment claim had not accrued as a 5 matter of law by three years prior to the date they filed this lawsuit, by September

6 20, 2014. It was not until October 8, 2014, that Plaintiffs definitively were aware 7 that they had no contract with Defendant, so they could not have been aware of a 8 claim based on quasi-contract and equitable principles. 9 However, with respect to the elements of an unjust enrichment action,

10 Plaintiffs do not provide any support in the record for their contention that 11 Defendant had knowledge that Plaintiffs’ credentials would or did benefit Defendant 12 in the TSA bid evaluation process. As Defendant points out in its briefing,

13 “Plaintiffs did not depose Akal, and they cannot show what Akal intended.” ECF 14 No. 123 at 2. Plaintiffs argue instead that federal regulations require award selection 15 to be based on a bidder’s ability to provide personnel with aviation security expertise 16 and that TSA included a field for providing information regarding key personnel on

17 its Solicitation form. ECF No. 118 at 9. However, these facts do not support that 18 TSA awarded the contract to Defendant even in part because Plaintiffs were 19 included as key personnel in the bid application. Rather, the evidence in the record

20 that TSA itself substituted other personnel for Plaintiffs in the contract after the 21 protest was resolved conflicts with Plaintiffs’ position on this matter. See ECF No. 1 116-5 at 1, 6. Regardless of whether Defendant requested the substitution, TSA’s 2 action supports that awarding the contract to Defendant was not contingent on

3 Plaintiffs’ employment as key personnel. 4 Therefore, the Court grants summary judgment to Defendant on Plaintiffs’ 5 unjust enrichment claim.

6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiffs’ Motion for Partial Summary Judgment, ECF No. 86, is 8 DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 113, is

10 GRANTED. 11 3. Judgment shall be entered for Defendant Akal on all claims raised by 12 Plaintiffs’ First Amended Complaint, ECF No. 20.

13 4. The parties’ Stipulated Voluntary Dismissal of Counterclaims, ECF 14 No. 132, is GRANTED. 15 5. Defendant’s remaining counterclaims of abuse of process and civil 16 conspiracy are DISMISSED WITHOUT PREJUDICE. Each party shall

17 bear its own costs and fees. 18 6. As there are no further pending claims or counterclaims in this action, 19 the remaining schedule and hearings in this matter are VACATED, and any

20 remaining motions are DENIED AS MOOT. 21 1 The District Court Clerk is directed to enter this Order, enter judgment as 2 directed, provide copies to counsel and to United States Magistrate Judge John T.

3 Rodgers, to whom this matter previously was referred for a settlement conference, 4 and close the file in this case. 5 DATED October 9, 2020.

6 s/ Rosanna Malouf Peterson 7 ROSANNA MALOUF PETERSON United States District Judge 8 9 10 11 12 13 14 15 16

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