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EXPEDITE

No Hearing Set

Hearing is Set

Date: February 20, 2009

Time: 9:00 a.m.

Judge: Hon. Anne Hirsch

 

 

 

 

 

 

 

 

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF THURSTON

DAVID SPARLING; BYRD THIBODAUX; )

PAT WOODARD; KENNETH KOCH )

DARREL MOLLENHOUR; LONG K. )

TRINH; MICHAEL D. FARLEY; ) NO. 08-2-02701-2

CHRISTINA ZERBY; TOM DITTMAR; )

WILL LOHMAN; ALLEN CONRAD; )

MARY HANSEN; LIZBETH FLUGEL, )

AND KELLI RUCKER; )

) MOTION TO FILE SECOND

Plaintiffs, ) AMENDED COMPLAINT

)

vs. ) (CLASS ACTION)

)

WASHINGTON FEDERATION OF STATE ) (ADDING STATE OF WASHINGTON)

EMPLOYEES, COUNCIL 28 OF )

AMERICAN FEDERATION OF STATE, )

COUNTY AND MUNICIPAL )

EMPLOYEES; and STATE OF )

WASHINGTON, )

)

Defendants. )

____________________________________ )

 

I.

RELIEF REQUESTED

The Plaintiffs, and the Class, by and through their attorney, James P. Richmond of Richmond Law Group, PLLC, move to amend the Amended Complaint filed December 4, 2008, and approve the filing of a Second Amended Complaint that alleges: (1) Class Action, and (2) adding the State of Washington as a Defendant.

II.

FACTS

Plaintiffs are general government employees whom were members of bargaining units included in the 2005-2007 WFSE General Government CBA tentatively agreed to in September 2004. Plaintiffs claim the contract is illegal because public policy was violated during formation of the contract. Washington Federation of State Employees (WFSE) was the designated representative of the Plaintiffs and the proposed class here. The Labor Relations Office (LRO), managed by the Governor’s Office, negotiated a contract and acted on behalf of the State. WFSE conducted a ratification vote in September 2004. The Plaintiffs and the class claim in their complaint that any dues/fees paid under the 2005-2007 WFSE General Government CBA were wrongfully withheld. WFSE acknowledges that there are numerous lawsuits for dues/fees filed in several Washington State counties.

In a related lawsuit, the Washington Public Employees Association (WPEA) claims the State is an indispensible party and must be included. Cause No. 08-2-01015-8. Judge Anne Hirsch. A motion to amend the WPEA complaint to add a class and name the State will be scheduled for February 27, 2009.

The written contract granted an extraordinary State entitlement to WFSE. In spite of the fundamental changes, WFSE failed to fairly and adequately conduct the contract ratification and to inform the bargaining unit members of the fundamental changes in their employment rights and relationship to the union. The State provided misleading or no information about employees’ rights and changes in State employment. Prior to the 2005-2007 WFSE General Government CBA, most State employees were not members of WFSE and were not required to pay dues/fees. In the past, employees relied on the State to explain the terms and conditions of employment.

The status conference for this case is calendared for February 27, 2009. The Court has not set a deadline for joinder of all claims and defendants. Discovery documents and responses have not been exchanged.

III.

EVIDENCE RELIED UPON

A. Proposed Complaint (Class Action – Add State of Washington as Defendant).

IV.

ISSUE

A. When amendments are to be freely granted should all bargaining unit members be added as a class when they are making the same claim and WFSE is not prejudiced by the amendment since the lawsuit is in its infancy and the parties have not responded to discovery?

B. When the rule is to liberally grant amendments, should the State of Washington be added as a Defendant, when the State could not reasonably claim prejudice, the time to add parties and claims has not passed, and the addition would result in a proper decision on the merits.

V.

AUTHORITY

Amendments are governed by Wash.R.Civ.Pro. 15. Pleadings may be amended only by leave of court but the amendment rule specifies that "leave shall be freely granted when justice so requires." The purpose of CR 15(a) is to facilitate a proper decision on the merits and to avoid a formalistic approach to pleading practice, which would prevent a just resolution of the action. Herron v. Tribune Publishing Co., 108 Wn.2d 162, 165-66, 736 P.2d 249, 252-253 (1987); Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 766-768, 733 P.2d 530, 533-534 (1987). Thurston County LCR 16(d) is the vehicle by which the court issues a scheduling order. The scheduling order sets the deadline for joinder of parties and claims. That date is not set and a status conference is calendared for February 27, 2009.

It is often said that the test as to whether the trial court should grant leave to amend is whether the opposing party is prepared to meet the new issue. Amendments should be freely granted unless the opposing party would be prejudiced. If no prejudice is evident, an amendment may be granted even after substantial delay. There is no delay here, a trial has not been set and discovery responses have not been exchanged. WFSE and the State should reasonably be prepared to meet the claims.

To successfully oppose this motion to amend, the adverse party must demonstrate actual prejudice that would result from the amendment. Boilerplate allegations about difficulties in preparing for trial are insufficient. The State and WFSE seem well equipped to defend the State workers’ claims.

This memorandum addresses Plaintiffs’ Motion: (A) Is a class action the most efficient fair way to resolve State workers’ claims; and (B) Should the State of Washington, as employer of Plaintiffs, be added when the State is prepared to defend and would not be prejudiced by their addition.

A. Class Action Amendment: Class actions are designed to include the resolution of many individual claims in a single action and the elimination of repetitious and possibly inconsistent adjudications involving common questions or similar relief. Buford v. H & R Block, Inc., 168 F.R.D. 340 (S.D.Ga., 1996). Granting this motion to amend the Complaint would bring all the claims and parties to one forum to resolve all the issues raised by the State workers and WFSE. Class actions also establish procedures for the redress of injuries for those whose economic position would not allow individual lawsuits to pursue on their own. Accordingly, class actions improve access to the courts that would include state workers who could not bring lawsuits at their own expense. Amchem Products, Inc. vs. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).

The court’s determination of class certification is undertaken without consideration of the merits of the claims made but that motion is not before the court. This is a motion for amendment of the Complaint only. The proposed Second Amended Complaint’s allegations are legally recognizable. Wash.R.Civ.Pro. 11. Class action must satisfy one of the three requirements under the rule governing class action: (1) that individual suits create collateral estoppels risk or threaten inconsistent judgments; or (2) that injunctive relief may be necessary; or (3) that a class action is superior to other means of proceeding CR 23(b). Oda v. State, 111 Wash.App. 79, 44 P.2d 8 (2003) review denied, 147 Wash.2d 1018, 56 P.3d 992 (2002). Each reason to allow a claim for a Class applies here consolidating all the claims and issues before one court that could issue an injunction.

B. Adding State of Washington: The Plaintiffs and Class claim the written contracts were illegal in their formation and wrongfully withheld from Plaintiffs’, and the Class’s, salary. This addition brings both parties to the CBA in one forum as Defendants. Claims based on a written contract must be commenced within six years after breach of the contract. The applicable statute for written contracts is RCW 4.16.040. The 2005-2007 WFSE General Government CBA met the essential elements of a written contract. In fact, the clause regarding union security was in writing and that agreement between the State and WFSE fundamentally changed state employment. The agreement awarded an entitlement to WFSE be paid by each state employee. This amendment is a simple contract claim against the WFSE and the State. The State should be added in order for state workers to obtain complete relief.

VI.

CONCLUSION

All the state workers’ and WFSE’s claims concerning the 2005-2007 WFSE General Government CBA should be heard in one Complaint, one forum, in Thurston County. Neither the WFSE nor the State would be prejudiced by the amendment.

Dated this 12th day of February, 2009.

RICHMOND LAW GROUP, PLLC

 

 

__________________________________

JAMES P. RICHMOND, WSBA #15865

Attorney for Plaintiffs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies under penalty of perjury under the laws of the State of Washington that I am now and at all times herein mentioned a citizen of the United States, a resident of the State of Washington, over the age of eighteen years, not a party to or interested in the above-entitled action, and competent to be a witness herein.

On the 12th day of February, 2009, I caused to be served the foregoing MOTION TO AMEND AMENDED COMPLAINT on the following individuals in the manner indicated:

 

Edward E. Younglove, III

Attorney at Law

Westhills II Office Park

1800 Cooper Point Road SW, Bldg. 16

Olympia, WA 98507

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State of Washington

Attorney General’s Office

7141 Cleanwater Drive SW

Olympia, WA 98501

 

 

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Signed this 12th day of February, 2009, at Olympia, Washington.

James P. Richmond