1 HONORABLE RONALD B. LEIGHTON 2 3 4 5
6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 FRANK SHAW, CASE NO. C19-5640RBL 9 Plaintiff, ORDER 10 v. 11 CITY OF BREMERTON POLICE DEPARTMENT, 12 Defendant. 13
14 THIS MATTER is before the Court on Defendant City of Bremerton’s Motion for 15 Summary Judgment. [Dkt. # 16]. Plaintiff Frank Shaw was a Bremerton police officer from 1993 16 - 2019. He claims the Bremerton Police Department discriminated against him based on his 17 disability for using sick and FMLA leave, dating to 2013. He claims BPD retaliated against him 18 for reporting that discrimination, for complaining about racially-charged online comments posted 19 by his supervisors, and for taking FMLA leave. Shaw claims he was subjected to a hostile work 20 environment and, finally, constructively discharged in May 2019. He sued the City of Bremerton 21 Police Department in June 2019. 22 BPD seeks summary judgment, arguing that is not an entity capable of being sued, and 23 Shaw has failed to name or serve a proper defendant. It also argues that Shaw failed to satisfy his 24 1 administrative pre-claim notice obligations on his constructive discharge claim—he filed his 2 statutory pre-claim notice months before he left his job, and it did not assert a constructive 3 discharge claim. It argues that Shaw has not and cannot demonstrate any sort of good cause for 4 his procedural errors. It demonstrates that he has known about these deficiencies since July but 5 has made no effort to correct them. It seeks dismissal of all claims (without prejudice) as a matter
6 of law. 7 A. Summary Judgment standard. 8 Summary judgment is proper “if the pleadings, the discovery and disclosure materials on 9 file, and any affidavits show that there is no genuine issue as to any material fact and that the 10 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether 11 an issue of fact exists, the Court must view all evidence in the light most favorable to the 12 nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty 13 Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). 14 A genuine issue of material fact exists where there is sufficient evidence for a reasonable
15 factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether 16 the evidence presents a sufficient disagreement to require submission to a jury or whether it is so 17 one-sided that one party must prevail as a matter of law.” Id. at 251-52. The moving party bears 18 the initial burden of showing that there is no evidence which supports an element essential to the 19 nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 20 Once the movant has met this burden, the nonmoving party then must show that there is a 21 genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the 22 existence of a genuine issue of material fact, “the moving party is entitled to judgment as a 23 matter of law.” Celotex, 477 U.S. at 323-24. There is no requirement that the moving party 24 negate elements of the non-movant’s case. Lujan v. National Wildlife Federation, 497 U.S. 871 1 (1990). Once the moving party has met its burden, the non-movant must then produce concrete 2 evidence, without merely relying on allegations in the pleadings, that there remain genuine 3 factual issues. Anderson, 477 U.S. 242, 248 (1986). 4 B. The Bremerton Police Department is not a proper defendant. 5 BPD argues first and without rebuttal that it is not an entity that can sue or be sued. It
6 demonstrates that it is a “department” within the City of Bremerton but it is not a municipal 7 corporation that can be sued. See RCW 35.21.010(1). Indeed, the City’s Code prohibits any of its 8 departments from suing or being sued. B.M.C. §§ 2.5.010 and 2.19.010. BPD provides an entire 9 page of citations to cases consistently holding that police and sheriff’s departments are not legal 10 entities subject to suit. See cases collected Dkt. # 16 at pp. 5-6. This is not a novel argument, nor 11 holding. The proper party is the City of Bremerton, and Shaw’s failure to name (or serve, 12 discussed below) the correct defendant entity is fatal to his claims against BPD. 13 Shaw responds only that defendants can have “no confusion” about whom he intended to 14 sue; he claims that the originally-named defendant was “the City of Bremerton Police
15 Department, a department within the City of Bremerton” and that the defendant’s attorney, not 16 Shaw, shortened that redundancy to the “Bremerton Police Department.” He offers a stipulation 17 adding or substituting the City as a defendant as an easy fix to the problem caused by suing the 18 entity he named. 19 But Shaw continues to identify the sole defendant in this lawsuit as “BPD.” BPD 20 accurately points out that Shaw has not properly served any defendant and understandably rejects 21 out of hand Shaw’s offer to “stipulate” to adding as a defendant a party which is not currently in 22 the case. It points to the same long line of authority holding that the corrective for the failure to 23 name the correct party in similar circumstances is the dismissal of the wrongly-named party. 24 BPD is entitled to dismissal of Shaw’s claims against BPD, without prejudice. 1 C. Shaw has not properly served any defendant. 2 BPD also argues that Shaw’s purported service on it is ineffective under the applicable 3 state law1, because he concedes he served his summons and complaint on “BPD Lieutenant 4 Aaron Elton,” who Shaw claims is “an agent of the defendant BPD.” Shaw emphasizes that 5 Elton is a supervisor and a witness to the conduct about which he claims. He also argues that he
6 mailed hard copies of his summons and complaint to defense counsel (who filed a notice of 7 appearance) and to the Kitsap County Superior Court. Shaw seems to argue that “service” of 8 subsequent papers on a party’s attorney (under Fed. R. Civ. P. 5) is sufficient service of a 9 summons, notwithstanding the requirements of Fed. R. Civ. P. 4 (and state law). 10 This is not correct, as a matter of law. First, there is no “defendant BPD;” the Bremerton 11 Police Department is not an entity that is legally capable of suing or being sued. The proper 12 defendant for claims arising from Shaw’s Bremerton Police Department employment is the City 13 of Bremerton. A plaintiff may serve process on Bremerton through its Mayor or the City Clerk2. 14 RCW 4.28.080(2). Bremerton has not designated Lt. Elton or anyone else as its agent for
15 acceptance of service.
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1 HONORABLE RONALD B. LEIGHTON 2 3 4 5
6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 FRANK SHAW, CASE NO. C19-5640RBL 9 Plaintiff, ORDER 10 v. 11 CITY OF BREMERTON POLICE DEPARTMENT, 12 Defendant. 13
14 THIS MATTER is before the Court on Defendant City of Bremerton’s Motion for 15 Summary Judgment. [Dkt. # 16]. Plaintiff Frank Shaw was a Bremerton police officer from 1993 16 - 2019. He claims the Bremerton Police Department discriminated against him based on his 17 disability for using sick and FMLA leave, dating to 2013. He claims BPD retaliated against him 18 for reporting that discrimination, for complaining about racially-charged online comments posted 19 by his supervisors, and for taking FMLA leave. Shaw claims he was subjected to a hostile work 20 environment and, finally, constructively discharged in May 2019. He sued the City of Bremerton 21 Police Department in June 2019. 22 BPD seeks summary judgment, arguing that is not an entity capable of being sued, and 23 Shaw has failed to name or serve a proper defendant. It also argues that Shaw failed to satisfy his 24 1 administrative pre-claim notice obligations on his constructive discharge claim—he filed his 2 statutory pre-claim notice months before he left his job, and it did not assert a constructive 3 discharge claim. It argues that Shaw has not and cannot demonstrate any sort of good cause for 4 his procedural errors. It demonstrates that he has known about these deficiencies since July but 5 has made no effort to correct them. It seeks dismissal of all claims (without prejudice) as a matter
6 of law. 7 A. Summary Judgment standard. 8 Summary judgment is proper “if the pleadings, the discovery and disclosure materials on 9 file, and any affidavits show that there is no genuine issue as to any material fact and that the 10 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether 11 an issue of fact exists, the Court must view all evidence in the light most favorable to the 12 nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty 13 Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). 14 A genuine issue of material fact exists where there is sufficient evidence for a reasonable
15 factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether 16 the evidence presents a sufficient disagreement to require submission to a jury or whether it is so 17 one-sided that one party must prevail as a matter of law.” Id. at 251-52. The moving party bears 18 the initial burden of showing that there is no evidence which supports an element essential to the 19 nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 20 Once the movant has met this burden, the nonmoving party then must show that there is a 21 genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the 22 existence of a genuine issue of material fact, “the moving party is entitled to judgment as a 23 matter of law.” Celotex, 477 U.S. at 323-24. There is no requirement that the moving party 24 negate elements of the non-movant’s case. Lujan v. National Wildlife Federation, 497 U.S. 871 1 (1990). Once the moving party has met its burden, the non-movant must then produce concrete 2 evidence, without merely relying on allegations in the pleadings, that there remain genuine 3 factual issues. Anderson, 477 U.S. 242, 248 (1986). 4 B. The Bremerton Police Department is not a proper defendant. 5 BPD argues first and without rebuttal that it is not an entity that can sue or be sued. It
6 demonstrates that it is a “department” within the City of Bremerton but it is not a municipal 7 corporation that can be sued. See RCW 35.21.010(1). Indeed, the City’s Code prohibits any of its 8 departments from suing or being sued. B.M.C. §§ 2.5.010 and 2.19.010. BPD provides an entire 9 page of citations to cases consistently holding that police and sheriff’s departments are not legal 10 entities subject to suit. See cases collected Dkt. # 16 at pp. 5-6. This is not a novel argument, nor 11 holding. The proper party is the City of Bremerton, and Shaw’s failure to name (or serve, 12 discussed below) the correct defendant entity is fatal to his claims against BPD. 13 Shaw responds only that defendants can have “no confusion” about whom he intended to 14 sue; he claims that the originally-named defendant was “the City of Bremerton Police
15 Department, a department within the City of Bremerton” and that the defendant’s attorney, not 16 Shaw, shortened that redundancy to the “Bremerton Police Department.” He offers a stipulation 17 adding or substituting the City as a defendant as an easy fix to the problem caused by suing the 18 entity he named. 19 But Shaw continues to identify the sole defendant in this lawsuit as “BPD.” BPD 20 accurately points out that Shaw has not properly served any defendant and understandably rejects 21 out of hand Shaw’s offer to “stipulate” to adding as a defendant a party which is not currently in 22 the case. It points to the same long line of authority holding that the corrective for the failure to 23 name the correct party in similar circumstances is the dismissal of the wrongly-named party. 24 BPD is entitled to dismissal of Shaw’s claims against BPD, without prejudice. 1 C. Shaw has not properly served any defendant. 2 BPD also argues that Shaw’s purported service on it is ineffective under the applicable 3 state law1, because he concedes he served his summons and complaint on “BPD Lieutenant 4 Aaron Elton,” who Shaw claims is “an agent of the defendant BPD.” Shaw emphasizes that 5 Elton is a supervisor and a witness to the conduct about which he claims. He also argues that he
6 mailed hard copies of his summons and complaint to defense counsel (who filed a notice of 7 appearance) and to the Kitsap County Superior Court. Shaw seems to argue that “service” of 8 subsequent papers on a party’s attorney (under Fed. R. Civ. P. 5) is sufficient service of a 9 summons, notwithstanding the requirements of Fed. R. Civ. P. 4 (and state law). 10 This is not correct, as a matter of law. First, there is no “defendant BPD;” the Bremerton 11 Police Department is not an entity that is legally capable of suing or being sued. The proper 12 defendant for claims arising from Shaw’s Bremerton Police Department employment is the City 13 of Bremerton. A plaintiff may serve process on Bremerton through its Mayor or the City Clerk2. 14 RCW 4.28.080(2). Bremerton has not designated Lt. Elton or anyone else as its agent for
15 acceptance of service. 16 Second, Shaw has not cited a case holding that service of process on a defendant outside 17 the strict requirements of the Rules and state law service statutes can be deemed “close enough” 18 if the party had actual notice of the claim, or if a related party files a notice of appearance and 19 defends (by, for example, pointing out the insufficiency of original service). As BPD argues, 20 Shaw has failed to pass even this initial “procedural wicket.” Shaw’s attempted service on BPD’s 21
22 1 BPD argues that state law governs the service issues both because the case was originally filed in state court and because the (proper) defendant is a municipality. Shaw’s purported service on Lt. Elton would not be proper under Federal Rule 4(j), either. 23 2 The Mayor of Bremerton has not designated any agent for service of process, and the City of Bremerton does not 24 have a City Manager. These are the only other two alternatives for service under RCW 4.28.080(2) 1 Lt. Elton is not effective service and it does not invoke this Court’s jurisdiction over the City of 2 Bremerton, as a matter of law. Shaw does not seek additional time for service and the Court 3 would not be inclined to grant it if he did. He has offered no showing of a good faith mistake in 4 his attempt to properly serve the City, even after he was timely informed of his error. 5 Shaw failed to sufficiently serve a viable defendant. BPD’s Motion for Summary
6 Judgment on this issue is GRANTED and Shaw’s claims against the Bremerton Police 7 Department are DISMISSED without prejudice for lack of sufficient service of process. 8 D. Shaw failed to comply with the administrative prerequisites for his wrongful discharge claim. 9 Finally, BPD argues that Shaw’s constructive discharge claim was not included in his 10 statutory pre-claim tort notice to the BPD. See RCW 4.96.020. As BPD correctly points out, such 11 a filing is a condition precedent to filing a tort claim against a public entity. Shaw argues that the 12 facts outlined in the notice he did serve are generally the same as the facts he now asserts in 13 support of his constructive discharge claim. A pre-claim tort notice must identify and articulate 14 each claim the plaintiff wishes to assert, before he files a lawsuit asserting such claims. See 15 Medina v Pub. Util. Dist. No. 1 of Benton County, 147 Wn.2d 303, 310 (2002); Moon v. City of 16 Bellevue, 142 Wn. App. 1037 (2008). Shaw’s September 2018 pre-claim notice does not 17 describe or mention a constructive discharge claim; his BPD employment continued for seven 18 months before he claims he was constructively discharged. See Bolasina Dec. Dkt. # 17 at Ex. A. 19 This claim too is subject to dismissal without prejudice, for failure to satisfy the administrative 20 prerequisites for Shaw’s constructive discharge claim. 21 * * * 22 Shaw has known that he sued (and insufficiently served) the wrong party for more than 23 six months. His statutory pre-claim notice did not include his now-asserted constructive 24 1 discharge tort claim. He has made no effort to remedy any of these issues despite knowledge of 2 them and ample time to do so. BPD’s Motion is GRANTED, and Shaw’s claims are 3 DISMISSED without prejudice. Any other pending motions are DENIED as moot, and the trial 4 date and case schedule are VACATED. The case is closed. 5 IT IS SO ORDERED.
6 Dated this 19th day of February, 2020. 7 A 8 Ronald B. Leighton 9 United States District Judge
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