No summary judgment for hotel in peeping tom case

You read that headline correctly. This case is about voyeurism. In a Spokane hotel.

Here are the facts, per Judge Mendoza’s order:

Plaintiff and one of her direct supervisors, Jason Pedigo, traveled to Spokane, Washington on a business trip in July 2016. They stayed at the Courtyard Spokane Downtown at the Convention Center. Pedigo successfully used a Ryobi scope to spy on Plaintiff by sticking it underneath a connector door between their rooms.

The plaintiff brought claims against her supervisor and the hotel. The supervisor wisely settled. The hotel did not.

The plaintiff’s claim against the hotel was for negligence. Her theory was that the hotel breached a duty to protect her from reasonably foreseeable peeping by the occupant of an adjoining room. The hotel moved for summary judgment, arguing that it did not owe the plaintiff such a duty.

Judge Mendoza denied the motion and sent the case to trial. In his view, the duty question came down to whether the hotel should have foreseen that a guest might try to spy on a female occupant of an adjoining room. Here is what he had to say:

Defendants point to testimony of its employees indicating that they have never heard of a scope being placed underneath connecting doors and that there have not been any complaints of voyeurism, especially through a connecting door. But that takes too literal of a position on foreseeability, as foreseeability may be determined by extrinsic considerations.

Here, Plaintiff’s expert points to the case of Andrews v. West End Hotel Partners, LLC et al., involving a voyeurism incident where a guest was spied on through an altered peep hole. Plaintiff’s expert also opines that voyeurisms are well known and entirely foreseeable to hotel operators.

Plaintiff further points to the fact that the hotel had an informal policy of informing guests who will be placed in connecting rooms upon check-in, to allow either guest to opt out. . . .

Having reviewed the briefs and the record, the Court concludes that Plaintiff has raised a genuine dispute about the foreseeable range of danger.

Will the case settle before trial? It will be interesting to see. On one hand, the facts are pretty horrific. Every juror will rightly sympathize with the plaintiff. On the other hand, the hotel doesn’t seem particularly blameworthy. Perhaps it could have done more to anticipate this type of antisocial behavior by a guest. But did it have a legal duty to do so?

Tough call.

The case is Rechael Driver v. Courtyard Spokane Downtown at the Convention Center, et al., Case No. 17-CV-0303-SMJ. A copy of Judge Mendoza’s order denying the hotel’s motion for summary judgment can be found here.

Revelations of time card fraud doom plaintiff’s case against Grant County PUD

Wayne Black worked for the Grant County PUD for thirteen years. From 2005 to 2016, everything went smoothly. Black was recognized as a strong employee and was eventually promoted to a supervisor position.

In 2016, things took a turn. In July of that year, Black was reprimanded for an incident of insubordination. Shortly thereafter, he was stripped of his supervisor position for selling a tool belt that belonged to the PUD.

New supervisor positions came open in the fall of 2016 and the spring of 2018. Black applied for both positions. Both were awarded to other people. Black subsequently sued the PUD, alleging that he had been discriminated against on the basis of his age and religious beliefs.

The case proceeded to discovery. During the course of conducting witness interviews, counsel for the PUD was told that Black had instructed several PUD employees to submit falsified time records during the time that Black was their supervisor. The PUD investigated the matter and determined that the reports were true. The PUD terminated Black for time card fraud, right in the middle of the case.

Black found himself in a classic “fight or flight” scenario. Without missing a beat, he amended his complaint to assert new claims for retaliation. His theory was that he was fired in retaliation for bringing the lawsuit, and that the PUD’s reliance on time card fraud as its justification was a mere pretext.

Judge Peterson did not buy the pretext argument. Applying the McDonnell-Douglas burden-shifting framework on summary judgment, she concluded that there was no “causal link” between Black’s filing of the lawsuit and his firing eight months later. Judge Peterson acknowledged that the temporal sequence of events could arguably give rise to an inference of retaliatory intent. Ultimately, though, she ruled that Black failed to make a sufficient showing that the PUD’s explanation was unworthy of belief.

Reading between the lines, the PUD’s evidence of time card fraud must have been pretty substantial. Had the evidence been thinner, Black’s retaliation claims would likely have been sent to a jury.

The case is Black v. Grant County Public Utility District, Case No. 17-CV-365-RMP. Judge Peterson’s summary judgment order is available here.

No preliminary injunction for plaintiff challenging DACA non-renewal, but APA claim will proceed

Christian Garcia Herrera was brought to the United States from Mexico when he was one year old. In 2013, after graduating from high school and taking a job as a wildland firefighter, he was granted deferred action status under the DACA program.

Mr. Garcia Herrera’s DACA status was renewed in 2015 and 2017. When he applied for a third renewal in 2018, however, his application was denied. The denial letters he received from USCIS did not explain why the application had been denied; they simply stated that USCIS had exercised its discretion not to renew his DACA status.

Mr. Garcia Herrera filed a complaint challenging the non-renewal under the Administrative Procedure Act (APA). His primary contention was that USCIS had summarily denied his application without giving him “case-by-case consideration” (thereby making the decision arbitrary and capricious in violation of the APA). Mr. Garcia Herrera promptly moved for a preliminary injunction barring USCIS from revoking his DACA status.

In an order issued yesterday, Judge Rice declined to issue a preliminary injunction. Central to his decision was the fact that the record was devoid of evidence that the application had been denied in summary fashion. Based on that lack of evidence, Judge Rice ruled that Mr. Garcia Herrera was not likely to succeed on the merits of his APA challenge “at this time.”

The phrase “at this time” is intriguing. It seems to suggest that Mr. Garcia Herrera will be allowed to take discovery to determine precisely how his application was processed. If he discovers that USCIS made a procedural misstep (e.g., by failing to adhere to DHS’s National Standard Operating Procedures for DACA adjudications), he may be in business on his APA claim.

The case is Garcia Herrera v. McAleenan, Case No. 19-CV-0094-TOR. Garcia Herrera is represented by Clayton Cook-Mowery of the Quiroga Law Office. The government is represented by Rudy Verschoor of the U.S. Attorney’s Office.

UPDATE: Judge Rice’s decision has been selected for publication in the Federal Supplement. The Westlaw citation for the decision is Herrera v. McAleenan, — F.Supp.3d —, 2019 WL 2030125 (E.D. Wash., May 8, 2019).

PUD moves for summary judgment in case challenging higher electricity rates for blockchain miners

Grant County, Washington is a hotbed for blockchain mining. Not sure what that is? Here is a definition and a more detailed explanation.

Blockchain mining requires enormous amounts of electricity. Electricity costs money. Blockchain mining is thus enormously expensive from an electricity standpoint.

Grant County PUD No. 2 (PUD) generates a lot of cheap electricity through its hydroelectric dams on the Columbia River. That has historically made Grant County an attractive place for blockchain miners to set up shop. The past few years have seen a massive influx of large-scale mining operations. The influx—and the corresponding problems it has created for local communities—has been well-documented.

Faced with skyrocketing demand for its electricity and increased strain on its infrastructure, the PUD took action. Last year, it created a new rate class for businesses in “evolving industries.” The new rate is considerably higher than the rate paid by ordinary business and residential customers.

The blockchain miners were predictably upset. Several banded together to challenge the new rate class in a lawsuit filed last December. Their complaint alleges that creating a new rate for businesses in “evolving industries” was arbitrary and capricious and violates due process.

The PUD filed a motion for summary judgment today. A hearing has been scheduled for June 27, 2019, in Spokane.

The plaintiffs were denied a preliminary injunction two months ago, with Judge Peterson questioning whether they were likely to succeed on the merits. That would seem to bode well for the PUD on summary judgment. On the other hand, it seems clear that the PUD singled out blockchain miners for higher rates. It will ultimately need to show that it had the legal authority to do so.

UPDATE 6/11/19 — Judge Peterson has deferred a ruling on the PUD’s summary judgment motion under Rule 56(d) to afford the plaintiff an opportunity to take discovery. A new hearing date has not been set.

The case is Blocktree Properties, LLC, et al. v. Public Utility District No. 2 of Grant County, Case No. 18-CV-0390-RMP.

Excessive force case against Spokane County deputies headed to trial

Summary judgment is a no-go when the parties and percipient witnesses present differing versions of events. That’s why this excessive force case is headed to trial.

Shaun Rockstrom went into a WinCo grocery store with a bag of candy that he had purchased at a different store. When he started eating the candy, WinCo employees suspected that he was shoplifting. Security asked him to leave. As Rockstrom was exiting the store, he was approached by a trio of Spokane County sheriff’s deputies.

What happened next depends on who you ask.

According to Rockstrom, the deputies stopped him and asked for his identification. Shortly thereafter, the deputies turned off the dash cameras on their patrol cars, tackled him to the ground, and started punching him.

According to the deputies, Rockstrom was “very fidgety” when they asked for his identification. The deputies interpreted Rockstrom’s behavior as a sign that he was “under emotional distress, on drugs, or [was] attempting to hide something such as a weapon, or [was] planning an escape.” Rockstrom threw his wallet on the ground and “tried to walk away with his fists up in front of him.” The deputies then tackled Rockstrom to the ground. Rockstrom “actively resisted arrest.” One of the deputies punched Rockstrom as a “distraction technique” while another deputy applied handcuffs and leg restraints.

According to an eyewitness, the deputies stopped Rockstrom and asked for identification. Rockstrom produced two cards from his wallet and threw them on the ground in front of the deputies. Rockstrom then asked if he was under arrest. The deputies did not respond. Rockstrom attempted to walk away. The deputies then tackled Rockstrom to the ground and proceeded to punch him in the head and face. The witness did not see Rockstrom raise his fists or take other aggressive action toward the deputies.

Not surprisingly, Judge Peterson ruled that there were genuine issues of material fact for trial. In so ruling, Judge Peterson rejected the deputies’ argument that Rockstrom needed expert testimony from a police practices expert, which Rockstrom did not have, to survive summary judgment.

Judge Peterson also allowed a failure to train claim against Spokane County to proceed to trial. When viewed most favorably to Rockstrom, she concluded, the evidence might theoretically persuade a jury that the County “trains its deputies to use punches in the head against people for attempting to walk away from police.”

The case is Rockstrom v. Spokane County, et al., Case No. 18-CV-0197-RMP. Rockstrom is represented by Richard Wall of Richard D. Wall, P.S. The Spokane County defendants are represented by Heather Yakely of Kutak Rock.

EDWA Court issues nationwide injunction blocking “gag rule” for abortion providers

Judge Bastian has issued a nationwide preliminary injunction in a high-profile case challenging the Trump Administration’s “gag rule” for abortion providers that receive federal funding.

We’ll leave this breaking news to the professionals. The New York Times, the Washington Post, and NPR all have coverage. Tom Clouse also wrote an excellent piece in the Spokesman-Review.

The case is State of Washington v. Alex Azar, Case No. 19-CV-3040-SAB.