Wise v. Inslee

TRAVIS WISE, et al., Plaintiffs, v. SECOND AMENDED COMPLAINT GOVERNOR JAY INSLEE, et al., Defendants.

No. 2:21-CV-0288-TOR

United States District Court, E.D. Washington

April 27, 2022

ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND GRANTING DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS

THOMAS O. RICE, United States District Judge.

BEFORE THE COURT are Plaintiffs' Motion for Leave to File Second Amended Complaint (ECF No. 71) and Defendants' Motions for Judgment on the Pleadings (ECF Nos. 69, 72). These matters were submitted for consideration with oral argument on April 27, 2022. Milton Rowland and Grant Wolf appeared on behalf of Plaintiffs. Cristina Sepe appeared on behalf of the State Defendants and Elizabeth Kennar and J. Chad Mitchell appeared on behalf of Defendant Schaeffer. The Court has reviewed the record and files herein, considered the parties oral arguments, and is fully informed. For the reasons discussed below, Plaintiffs' Motion for Leave to File Second Amended Complaint (ECF No 71) is DENIED, and Defendants' Motions for Judgment on the Pleadings (ECF Nos. 69, 72) are GRANTED.

BACKGROUND

This matter relates to Governor Inslee's Proclamation 21-14 et seq. (the “Proclamation”) regarding vaccination requirements for certain state employees. The factual background is discussed in detail in the Court's Order Denying Motion for Temporary Restraining Order. ECF No 55. Plaintiffs allege the Proclamation violates a variety of state and federal laws, including constitutional law statutory law, and state common law. ECF No. 26. Defendants Inslee, Clintsman, Batiste, and Millar (collectively “State Defendants”) and Defendant Schaeffer move for judgment on the pleadings, arguing Plaintiffs have failed to state claims for which relief may be granted. ECF Nos. 69, 72. Plaintiffs oppose the motion, and also seek leave to file a Second Amended Complaint. ECF No. 71.

DISCUSSION

I. Motion for Leave to Amend

Federal Rule of Civil Procedure 15(a) provides that “a party may amend its pleading only with the opposing party's written consent or the court's leave, ” which “[t]he court should freely give . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Ninth Circuit has directed that this policy be applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation omitted). In ruling upon a motion for leave to amend, a court must consider whether the moving party acted in bad faith or unduly delayed in seeking amendment, whether the opposing party would be prejudiced, whether an amendment would be futile, and whether the movant previously amended the pleading. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). “Absent prejudice, or a strong showing of any of the remaining [ ] factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 (9th Cir. 2011) (citation omitted) (emphasis in original).

Here, Plaintiffs seek leave to file a Second Amended Complaint. ECF No. 71. Plaintiffs filed their First Amended Complaint as of right on October 15, 2021. ECF No. 26. On that same day, Plaintiffs also filed a Motion for Temporary Restraining Order/Preliminary Injunction. ECF No. 13. The Court denied the motion, finding Plaintiffs had failed to establish a likelihood of success on the merits. ECF No. 55. The parties communicated in November and December regarding Plaintiffs' Proposed Second Amended Complaint (“PSAC”). ECF Nos. 71 at 4; 75 at 4. Despite assuring Defendants they would receive a copy of the PSAC by November 31, 2021, Defendants did not receive a draft until sometime in late December 2021 and the draft was incomplete. Id. In January 2022, Plaintiffs advised Defendants a final draft was forthcoming but never provided an expected completion date. ECF No. 75 at 4.

After extending the deadline to answer the First Amended Complaint three times, Defendants filed their Answer on January 31, 2022. Id. Defendants filed their Motions for Judgment on the Pleadings on March 3 and 4, 2022. ECF Nos. 69, 72. On March 3, 2022, Plaintiffs emailed Defendants a copy of the final PSAC. ECF No. 75 at 4.

The Court finds Plaintiffs unduly delayed seeking leave to amend. Plaintiffs' stated reasons for delay are insufficient to justify a months-long delay, particularly where the PSAC does not appear to contain any facts or information not already known to Plaintiffs at the time the First Amended Complaint was filed. In any event, having reviewed the PSAC, the Court also finds amendment would be futile.

First, neither the additional facts nor the new plaintiffs in the PSAC appear to arise from newly discovered evidence, and Plaintiffs do not advance any arguments as to why they could not have been included in the First Amended Complaint. See ECF No. 71-2 at 7-12, ¶¶ 2.5.4-2.5.75; 14-15, ¶¶ 3.7-3.11. Relatedly, many of Plaintiffs new factual allegations primarily concern their claims under the ADA and Title VII, which are both untenable due to Plaintiffs' failure to exhaust their administrative remedies. See, e.g., id. at 15, ¶¶ 3.10-3.11; at 19, ¶ 3.29; at 26-29, ¶¶ 3.69-3.83.

Next, the new legal theories in the PSAC fail as a matter of law. First, Plaintiffs' proposed preemption claim appears to allege the Proclamation is preempted by the Food, Drug, and Cosmetics Act (“FDCA”), 21 U.S.C § 360bbb-3, because the FDCA prohibits vaccines approved under emergency use authorization from being forced upon individuals. ECF No. 71-2 at 51-52. As an initial matter, the Proclamation does not require anyone to receive a vaccine; it merely establishes employment requirements for certain state employees. Next, the FDCA has an exhaustion requirement, and Plaintiffs have not indicated they have taken any steps to exhaust their administrative remedies. Ass'n of Am. Physicians & Surgeons, Inc. v. Food & Drug Admin., 539 F.Supp.2d 4, 21 (D.D.C. 2008) (citing 21 C.F.R. §§ 10.30, 10.25). Moreover, judicial review is unavailable for decisions that are committed to agency discretion as a matter of law. City & Cty. of San Francisco v. U.S. Dep't of Transp., 796 F.3d 993, 1001 (9th Cir. 2015) (quoting 5 U.S.C. § 701(a)(2)). The provisions of the FDCA expressly reserve decisions regarding emergency use authorizations for vaccines and other medications to agency discretion. 21 U.S.C. §360bbb-3(i) (“Actions under the authority of this section by the Secretary, by the Secretary of Defense, or by the Secretary of Homeland Security are committed to agency discretion.”).

Consequently, even if Plaintiffs presented cognizable preemption claim under the FDCA, the Court would be unable to provide the relief Plaintiffs seek.

Next, Plaintiffs seek to add a claim for religious discrimination under Title VII and a claim for violation of the Establishment Clause. ECF No. 71-2 at 49-51; at 36, ¶ 6.7-6.25. Plaintiffs do not present any arguments regarding the validity of either claim in their Motion for Leave to File Second Amended Complaint; instead, Plaintiffs address the proposed claims in their Response to Defendants' Motions for Judgment on the Pleadings. Therefore, the Court discusses the issues below. See infra Section II.H.

Because Plaintiffs unduly delayed seeking amendment and because amendment would be futile, Plaintiffs Motion for Leave to File Second Amended Complaint is denied.

II. Motion for Judgment on the Pleadings

“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). In reviewing a 12(c) motion, the court “must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (internal quotation marks and citation omitted). “A judgment on the pleadings is properly granted when, taking all the allegations in the nonmoving party's pleadings as true, the moving party is entitled to judgment as a matter of law.” Marshall Naify Revocable Trust v. United States, 672 F.3d 620, 623 (9th Cir. 2012) (quoting Fajardo v. Cty. of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999)).

“Federal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (citation omitted).

A. Supplemental Jurisdiction

The Amended Complaint raises several state constitutional and common law violations. ECF No. 26. In their Response to the present motions, Plaintiffs seek to dismiss the state law tort claims, the takings claims under the State and federal constitutions, the cruel punishment claims under the Washington and federal constitutions, and the violation of the Commerce clause claims under Art. I, § 8, cl. 3 and the federal constitution. See ECF No. 81 at 3. However, other state law causes of action remain. This Court may exercise supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367, but the decision is discretionary. Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997), supplemented, 121 F.3d 714 (9th Cir. 1997), as amended, (Oct. 1, 1997). In the interests of judicial...