Case 2:18-cv-01188-TSZ Document 33 Filed 12/18/19 Page 1 of 5 1 THE HONORABLE THOMAS S. ZILLY 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 THE ERISA INDUSTRY COMMITTEE, Plaintiff, 11 12 13 v. CITY OF SEATTLE, 14 Defendant. 15 Case No. 2:18-cv-01188 JOINT STATUS REPORT ADDRESSING STATUS OF STATE COURT LITIGATION AND STIPULATION TO FILE AMENDED COMPLAINT AND (PROPOSED) ORDER 16 17 18 Pursuant to this Court’s Minute Order (“Minute Order”), filed June 10, 2019 (ECF No. 19 32), Plaintiff The ERISA Industry Committee (“ERIC” or “Plaintiff”), and Defendant the City 20 of Seattle (the “City” or “Defendant”) (collectively, the “Parties”), hereby submit the following 21 Joint Status Report and Stipulation to File Amended Complaint, together with a proposed order. 22 1. On December 27, 2018, this Court issued an Order staying the litigation, pending 23 further order of the Court, in light of the Court of Appeals for the State of Washington’s 24 decision in American Hotel & Lodging Ass’n, et al. v. City of Seattle, et al., Case No. 77918-4-I 25 (Wash. Ct. App.) (“State Court Action”) that invalidated Initiative 124 “in its entirety.” Docket 26 No. 27-1 at 22. JOINT STATUS REPORT ADDRESSING STATUS OF STATE COURT LITIGATION AND STIPULATION TO FILE AMENDED COMPLAINT AND (PROPOSED) ORDER - 1 CASE NO. - 2:18-CV-01188-TSZ KILPATRICK TOWNSEND 72806132 1 KILPATRICK TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 SEATTLE, WA 98101 (206) 626-7713 FAX: (206) 260-8946 Case 2:18-cv-01188-TSZ Document 33 Filed 12/18/19 Page 2 of 5 1 2. On February 26, 2019, and June 10, 2019, the Court, upon review of the Parties’ 2 Joint Status Reports (ECF Nos. 29 and 31), continued the stay of this litigation, pending 3 resolution of the State Court Action, and ordered the Parties to submit a joint status report on or 4 before December 31, 2019, addressing the status of the State Court Action. 5 6 3. For the reasons stated below, the Parties request that the Court lift the stay and, as stipulated to by the Parties, permit ERIC to file an amended complaint. 7 4. On January 23, 2019, in the State Court Action, the City filed a petition for 8 review in the Washington Supreme Court. City of Seattle v. American Hotel & Lodging 9 Association, Seattle Hotel Association, et al., Case No. 96781-4 (Wash.). The Washington 10 Supreme Court granted review and accepted the appeal on or about April 30, 2019. 11 5. On or about September 25, 2019, the City passed Ordinance 125930, in part 12 “requiring certain employers to make required healthcare expenditures to or on behalf of certain 13 employees for the purpose of improving access to medical care”, to be codified as Seattle 14 Municipal Code (“SMC”) 14.28 Improving Access to Medical Care for Hotel Employees. 15 6. On or about October 4, 2019, the City passed Ordinance 125939, repealing SMC 16 14.25 which it found “is necessary to give full effect to [SMC] 14.26, 14.27, 14.28, and 14.29”. 17 Part 3 of SMC 14.25, Improving Access to Medical Care for Low Income Hotel Employees, 18 was the subject of this pending action. 19 20 7. State Court Action and it has been resolved in full. 21 22 23 24 October 21, 2019, the Washington Supreme Court dismissed the appeal of the 8. On or about November 5, 2019, the City codified Ordinance 125930 as SMC 9. With the dismissal of the State Court Action, the stay of this action is no longer 14.28. necessary. 25 26 JOINT STATUS REPORT ADDRESSING STATUS OF STATE COURT LITIGATION AND STIPULATION TO FILE AMENDED COMPLAINT AND (PROPOSED) ORDER - 2 CASE NO. - 2:18-CV-01188-TSZ KILPATRICK TOWNSEND 72806132 1 KILPATRICK TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 SEATTLE, WA 98101 (206) 626-7713 FAX: (206) 260-8946 Case 2:18-cv-01188-TSZ Document 33 Filed 12/18/19 Page 3 of 5 1 10. ERIC believes that SMC 14.28 is preempted by the Employee Retirement 2 Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq.; the City believes that SMC 3 14.28 is not preempted by ERISA. 4 11. The Parties agree that permitting ERIC to file an amended complaint to challenge 5 SMC 14.28 on ERISA preemption grounds would allow the issues to be decided in an efficient 6 manner that would conserve judicial resources. 7 12. Accordingly, the Parties request that the Court permit ERIC to file an amended 8 complaint in this action with a responsive pleading and motions to be filed according to the 9 following schedule: 10 a. Amended complaint to be filed by ERIC no later than January 21, 2020; 11 b. Responsive pleading, including a motion to dismiss, to be filed by the City no 12 13 14 later than 30 days thereafter; c. If the City files a motion to dismiss, ERIC’s opposition is to be filed 30 days later, and the City’s reply is to be filed 30 days after the opposition; 15 d. Within the time for filing its opposition to a motion to dismiss filed by the 16 City, ERIC may file a motion for summary judgment asserting ERISA 17 preemption, with the City’s opposition to be filed 30 days later, and ERIC’s 18 reply to be filed 21 days after the opposition. 19 e. In the event the City files an answer rather than moves to dismiss the 20 amended complaint, the Parties may file any dispositive (or other) motions 21 consistent with the Federal Rules of Civil Procedure, the Local Rules of this 22 Court, or order of this Court. 23 f. If the City files a motion to dismiss, and ERIC does not additionally file a 24 motion for summary judgment asserting ERISA preemption as outlined 25 above, nothing shall prevent ERIC from filing a motion for summary 26 JOINT STATUS REPORT ADDRESSING STATUS OF STATE COURT LITIGATION AND STIPULATION TO FILE AMENDED COMPLAINT AND (PROPOSED) ORDER - 3 CASE NO. - 2:18-CV-01188-TSZ KILPATRICK TOWNSEND 72806132 1 KILPATRICK TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 SEATTLE, WA 98101 (206) 626-7713 FAX: (206) 260-8946 Case 2:18-cv-01188-TSZ Document 33 Filed 12/18/19 Page 4 of 5 1 judgment on ERISA preemption or any other grounds in due course after (if 2 necessary) resolution of the City’s motion to dismiss. 3 4 5 6 13. The Parties therefore request that this Court lift the stay of litigation and permit ERIC to file an amended complaint and enter the briefing schedule described above. DATED this 18th day of December 2019. 7 KILPATRICK TOWNSEND & STOCKTON LLP 8 By /s/ Gwendolyn C. Payton Gwendolyn C. Payton, WSBA No. 26752 gpayton@kilpatricktownsend.com Telephone: (206) 626-7714 Facsimile: (206) 260-8946 9 10 11 Anthony F. Shelley, pro hac vice Theresa S. Gee, pro hac vice Telephone: (202) 626-5800 Facsimile: (202) 626-5801 12 13 14 Counsel for Plaintiff The ERISA Industry Committee 15 16 KELLER ROHRBACK L.L.P. 17 By/s/ Erin Riley Erin Riley, WSBA No. 30401 1201 Third Ave., Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 18 19 20 21 Jeffrey Lewis, pro hac vice 300 Lakeside Drive., Suite 1000 Oakland, CA 94612 Telephone: (510) 463-3900 Facsimile: (510) 463-3901 22 23 24 Counsel for Defendant City of Seattle 25 26 JOINT STATUS REPORT ADDRESSING STATUS OF STATE COURT LITIGATION AND STIPULATION TO FILE AMENDED COMPLAINT AND (PROPOSED) ORDER - 4 CASE NO. - 2:18-CV-01188-TSZ KILPATRICK TOWNSEND 72806132 1 KILPATRICK TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 SEATTLE, WA 98101 (206) 626-7713 FAX: (206) 260-8946 Case 2:18-cv-01188-TSZ Document 33 Filed 12/18/19 Page 5 of 5 CERTIFICATE OF SERVICE 1 2 I certify that on the date indicated below I caused a copy of the foregoing document, 3 JOINT STATUS REPORT ADDRESSING STATUS OF STATE COURT LITIGATION AND 4 STIPULATION TO FILE AMENDED COMPLAINT AND (PROPOSED) ORDER to be filed 5 with the Clerk of the Court via the CM/ECF system. In accordance with their ECF registration 6 agreement and the Court’s rules, the Clerk of the Court will send e-mail notification of such filing 7 to the following attorneys of record: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Jeffrey Lewis KELLER ROHRBACK LLP 300 LAKESIDE DRIVE, STE 1000 OAKLAND, CA 94612 Email: jlewis@kellerrohrback.com Erin Maura Riley Rachel E. Morowitz KELLER ROHRBACK 1201 3RD AVE, STE 3200 SEATTLE, WA 98101-3052 Email: eriley@kellerrohrback.com Email: rmorowitz@kellerrohrback.com  by CM/ECF  by Electronic Mail  by Facsimile Transmission  by First Class Mail  by Hand Delivery  by Overnight Delivery Dated this 18th day of December, 2019. /s/ Gwendolyn C. Payton Gwendolyn C. Payton 22 23 24 25 26 JOINT STATUS REPORT ADDRESSING STATUS OF STATE COURT LITIGATION AND STIPULATION TO FILE AMENDED COMPLAINT AND (PROPOSED) ORDER - 5 CASE NO. - 2:18-CV-01188-TSZ KILPATRICK TOWNSEND 72806132 1 KILPATRICK TOWNSEND & STOCKTON LLP 1420 FIFTH AVENUE, SUITE 3700 SEATTLE, WA 98101 (206) 626-7713 FAX: (206) 260-8946