Jm Martinac Shipbuilding Corpo v. State of Washington

MEMORANDUM **

This action involves claims for relief that arise out of purported government misconduct and Martinac’s failed bid to construct car ferries for Washington State’s Department of Transportation (WSDOT) pursuant to Substitute House Bill (SHB) 1680. JM Martinac Shipbuilding Corporation (Martinac) challenges the district court’s order dismissing all of its claims against WSDOT and several of its officials. We hold that the district court properly dismissed most of Martinac’s claims, but that it erred in holding that Martinac’s defamation and commercial disparagement claims (defamation claims) could not be subject to tolling pursuant to the discovery rule. On remand, the district court should allow discovery to determine whether the discovery rule applies to Martinac’s defamation claims and whether they may proceed based on actionable statements not pro *531 tected by any governmental privilege.

1. The present action is not moot because Martinac seeks damages for past conduct. Siskiyou Reg’l Eduuc. Project v. U.S. Forest Serv., 565 F.3d 545, 559 (9th Cir.2009) (internal citations omitted). Barring several exceptions not applicable here, even if a governing body repeals…

concurring and dissenting:

I concur in the majority opinion to the extent that it affirms the district court’s Rule 12(b)(6) dismissal of Martinac’s complaint for failure to state a claim. I dissent from the majority’s remand to the district court of Martinac’s defamation and commercial disparagement claims (the “defamation claims.”)

As to the defamation claims, I part company with the majority where it remands Martinac’s defamation claims to the district court to determine whether the discovery rule saves the claims from the two-year statute-of-limitations. 1 See Wash. Rev.Code § 4.16.100(1). I would hold that we need not resolve the applicability of the discovery rule to the defamation claims, because all of the alleged statements in issue are either privileged or non-actionable opinions. See Corbally v. Kennewick Sch. Disk, 94 Wash.App. 736 , 973 P.2d 1074, 1077 (Wash.Ct.App.1999) (non-actionable opinions); Aitken v. Reed, 89 Wash.App. 474 , 949 P.2d 441, 449 (Wash.Ct.App.1998) (absolute privilege).

The majority opinion identifies only one set of statements as not being privileged as a matter of law — -Defendant MacDonald’s statements made during and outside of a 2003…

FILED

JAN 29 2010

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JM MARTINAC SHIPBUILDING No. 08-35754

CORPORATION,

D.C. No. 2:06-cv-01544-JCC Plaintiff - Appellant,

* v. MEMORANDUM

THE STATE OF WASHINGTON, by and through its DEPARTMENT OF

TRANSPORTATION; DOUGLAS B.

MacDONALD, Secretary of Transportation, in his individual capacity;

W. MICHAEL ANDERSON, Acting

Assistant Secretary and Executive Director, WSF, in his individual capacity; SAMUEL J. KUNTZ, Chief Financial Officer, WSF, in his individual capacity; and LAURENS ZUIDWEG, Director of Vessel Engineering, WSF, in his individual capacity,

Defendants - Appellees.

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1 for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted October 13, 2009 Seattle, Washington

Before: CUDAHY, ** Senior Circuit Judge, and RAWLINSON and CALLAHAN, Circuit Judges.

This action…