Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 1 of 31
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`CASE NO. 2:21-cv-01706-JHC
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`ORDER RE: FAIR’S MOTIONS FOR
`SUMMARY JUDGMENT ON
`DEFENDANTS’ AFFIRMATIVE
`DEFENSES
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`EMANUEL D. FAIR,
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`Plaintiff,
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`v.
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`KING COUNTY, a political subdivision of
`the State of Washington; CITY OF
`REDMOND, a municipal entity and political
`subdivision of the State of Washington;
`BRIAN COATS, in his personal capacity;
`JEFF BAIRD, in his personal capacity,
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`Defendants.
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`I
`INTRODUCTION
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`This matter comes before the Court on Plaintiff Emanuel D. Fair’s motions for summary
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`judgment on Defendants’ affirmative defenses. Dkt. ## 166, 168. The Court has considered the
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`materials filed in support of and in opposition to the motions, pertinent portions of the record,
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`and the applicable law. For the reasons below, the Court GRANTS in part and DENIES in part
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`the motions.
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`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 1
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`Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 2 of 31
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`II
`BACKGROUND
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`In 2010, Fair was charged with the murder of Arpana Jinaga. After nine years in pretrial
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`detention at King County Jail, Fair was acquitted. In the Third Amended Complaint (TAC), Fair
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`brings claims under 42 U.S.C. § 1983 and Washington law against Defendants King County, the
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`City of Redmond, Senior King County Deputy Prosecutor Jeff Baird, and Redmond Police
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`Detective Brian Coats. Dkt. # 147 at 2 at ¶¶ 2–3.
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`On December 2, 2024, Defendants King County and Jeff Baird (collectively, the King
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`County Defendants) answered the TAC. Dkt. # 150. They asserted 15 affirmative defenses:
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`Fair has failed to state a claim upon which relief can be granted;
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`The actions complained of in the complaint are protected by prosecutorial
`immunity;
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`(3) All or some of Fair’s causes of action are barred by the statute of limitations;
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`(4)
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`Fair has waived some or all of the claims in this lawsuit;
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`(1)
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`(2)
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`(5)
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`(6)
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`(7)
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`(8)
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`(9)
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`Fair’s claims are barred by laches;
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`Fair’s injuries and damages, if any, were proximately caused by the
`negligence and/or fault of Fair and/or others;
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`The damages and/or injuries sustained, if any, were caused solely or in part
`by the fault of a third party or entity not within the control of the King
`County Defendants, and pursuant to RCW 4.22.070, fault must be
`apportioned;
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`Some or all of Fair’s claims are barred by the preclusive findings of
`probable cause;
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`The King County Defendants have no role in establishing policy or practice
`of the Prosecuting Attorney’s Office related to the prosecution of crimes;
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`(10) The King County Defendants are not liable for prejudgment interest because
`the State of Washington, of which King County is a political subdivision,
`has not consented to such prejudgment interest. (citing RCW 4.56.115);
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`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 2
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`Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 3 of 31
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`(11) Fair’s claims are barred by prosecutorial immunity; [1]
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`(12) Fair’s claims are barred by qualified immunity;
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`(13) Fair’s claims are barred by state law qualified immunity;
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`(14) Fair may have failed to exhaust available administrative remedies under the
`Prison Litigation Reform Act, 42 U.S.C. § 1997;
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`(15)
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`If Fair sustained any injury or damage, the same was the result of reasonable
`and required conduct of defendant King County and its employees under
`the circumstances and was excusable and justifiable in connection with the
`detention.
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`Dkt. # 150 at 31–32.
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`On December 27, 2024, the City of Redmond and Brian Coats (collectively, the
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`Redmond Defendants) answered the TAC. Dkt. # 162. They asserted 12 affirmative defenses:
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`(1)
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`(2)
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`(3)
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`The TAC fails to state a claim upon which relief may be granted;
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`Fair’s claims are barred in whole or in part by the applicable statutes of
`limitation;
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`Probable cause has been established as a matter of law in the underlying
`criminal case and Fair is barred from relitigating that issue here under the
`doctrines of res judicata and/or collateral estoppel. Probable cause is further
`established as a matter of law based on the undisputed presence of Fair’s
`DNA on crucial crime
`scene evidence as described
`in
`the
`CERTIFICATION FOR DETERMINATION OF PROBABLE CAUSE.
`The existence of probable cause is a complete defense to all Fair’s claims
`and causes of action asserted against the Redmond Defendants;
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`(4) Coats is entitled to qualified immunity under state and federal law;
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`(5)
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`Fair’s claims relating to the timing of his criminal trials and/or the length of
`his pretrial detention are not properly asserted against the Redmond
`Defendants, who were not involved in these matters. Further, Fair’s claims
`in this regard are barred by the doctrines of waiver and laches, Fair having
`foregone his Constitutional right to a speedy trial;
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`(6) All actions taken by the Redmond Defendants were performed in good faith,
`were reasonable, were based on probable cause, and were within their
`lawful authority;
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`1 Fair and the King County Defendants acknowledge that Defenses Nos. 2 and 11 are duplicative.
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 3
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`Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 4 of 31
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`(7)
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`(8)
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`(9)
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`The City of Redmond cannot be held liable under a respondeat superior
`theory pursuant to 42 U.S.C. § 1983. Fair has failed to plead facts specific
`enough to state a claim against the City of Redmond under § 1983 based on
`the heightened pleading requirements for such a claim;
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`To the extent that Fair is asserting a cause of action alleging negligence on
`the part of the Redmond Defendants in the investigation of the underlying
`murder, no such cause of action exists under Washington law and may be
`barred by the public duty doctrine;
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`The Redmond Defendants did not proximately cause any of Fair’s alleged
`damages;
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`(10) Fair’s alleged damages, if any, were proximately caused by Fair’s own acts
`and omissions and Fair’s recovery, if any, must be proportionately reduced;
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`(11) To the extent Fair has failed to mitigate his damages, any recovery must be
`reduced. This includes any claim arising from the length of his pre-trial
`detention;
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`(12) The City of Redmond is immune from liability for prejudgment interest on
`tort judgments and is immune from punitive damages.
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`Dkt. # 162 at 27–29.
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`On January 24, 2025, Fair moved for summary judgment on the King County and
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`Redmond Defendants’ affirmative defenses. Dkt. # 166, 168.
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`III
`DISCUSSION
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`Summary judgment is warranted if the evidence, viewed in the light most favorable to the
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`non-moving party, shows “that there is no genuine dispute as to any material fact and the movant
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`is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett,
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`477 U.S. 317, 322 (1986). A fact is “material” if it might affect the outcome of the case.
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “‘genuine’ only
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`if there is sufficient evidence for a reasonable fact finder to find for the non-moving party.” Far
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`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 4
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`Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248–
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`49).
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`The moving party bears the initial burden of showing there is no genuine dispute of
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`material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. To
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`carry its burden, “the moving party must either produce evidence negating an essential element
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`of the nonmoving party’s claim or defense or show that the nonmoving party does not have
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`enough evidence of an essential element to carry its ultimate burden of persuasion at trial.”
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`Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving
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`party meets its burden of production, the burden shifts to the nonmoving party to identify
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`specific facts from which a factfinder could reasonably find in the nonmoving party’s favor.
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`Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250 .
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`A.
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`The King County Defendants’ Affirmative Defenses
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`In response to Fair’s motion, the King County Defendants withdraw their first, fifth,
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`ninth, eleventh, thirteenth, and fourteenth affirmative defenses. See Dkt. # 182 at 3–10. They
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`partially withdraw the portions of their sixth and seventh affirmative defenses that refer to
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`“others” and “third party or entity.” Id. at 5, 7. They also partially withdraw their fifteenth
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`affirmative defense as it relates to Baird and the King County Prosecuting Attorney’s Office
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`(KCPAO). Id. at 10. Thus, the Court denies Fair’s motion as moot regarding the defenses and
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`partial defenses described above. This order addresses the remaining disputes below.
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`1.
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`Prosecutorial Immunity (No. 2)
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`Fair highlights that the Court’s April 13, 2023 Order resolving Defendants’ motions to
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`dismiss the First Amended Complaint (FAC) stated that Fair “ma[de] no claim against [the King]
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`County Defendants for protected prosecutorial functions.” Dkt. # 166 at 7 (citing Dkt. # 85 at 9–
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`10). He says that the Court “has already determined as a matter of law” that Baird does not
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 5
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`Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 6 of 31
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`enjoy prosecutorial immunity. Dkt. # 188 at 5. He also says that because the TAC “has not
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`added claims or asserted facts against [the King] County Defendants that seek accountability for
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`protected prosecutorial functions,” the Court should grant summary judgment on this affirmative
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`defense. Dkt. # 166 at 7. Thus, according to Fair “[t]he Court’s prior ruling remains binding
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`here, where [Fair’s] amended allegations merely expand, based on two years of discovery, on the
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`same nature and effect as those plead” in the FAC. Dkt. # 188 at 5.
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`The King County Defendants respond that Baird’s decision to charge Fair led to Fair’s
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`incarceration. Dkt. # 182 at 3. They say that Baird’s involvement in the Jinaga homicide
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`investigation, including sitting in on interviews and discussing the crime scene with investigators
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`are protected by prosecutorial immunity. Id. They assert that “Fair’s disagreement with the
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`actions . . . Baird took are material as they determine whether or not prosecutorial immunity
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`applies.” Id. They also contend that the TAC alleges many new facts about Baird’s involvement
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`in the investigation and prosecution of Fair. Id. at 4 (citing Dkt. # 147 ¶¶78(i)-(k), 87, 91, 92, 96,
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`97, 99, 100, 101, 102, 104, 105, 109, 113, 114, 115, 116, 119, 121, 122, 123, 129, 130, 131, 132,
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`133 (a)-135, 171-190).
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`In its April 13, 2023 Order resolving Defendants’ motions to dismiss the FAC, the Court
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`rejected the King County Defendants’ argument that the claims against Baird should be
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`dismissed because of prosecutorial immunity. Dkt. # 85 at 9–10. The Court said, “Nothing in
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`the operative pleading suggests that . . . Baird [was] being sued for making a charging decision,
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`seeking a high amount of bail ($5 million), or otherwise performing the ‘traditional functions’ of
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`a prosecuting attorney.” Id. at 9 (emphasis added). It also said, “the Amended Complaint
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`alleges that DPA Baird engaged in investigative or administrative activities during the murder
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`investigation, including providing advice to police officers, questioning residents of the
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`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 6
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`Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 7 of 31
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`apartment complex, processing the crime scene, and making himself “an integral part of the
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`investigative team.” Id. at 10 (citing Am. Compl. ¶¶ 30, 64, 68 & 163) (emphasis added).
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`Fair cites no law or points to any evidence that would show that he is entitled to summary
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`judgment on this affirmative defense. See Dkt. # 166 at 7. His assertion that the Court “already
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`determined as a matter of law” that Baird’s actions are not protected by prosecutorial immunity
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`is misplaced given that the prior ruling was based on the plausibility of Fair’s allegations in the
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`FAC. At that time, the operative complaint was the basis for the Court’s ruling. At the summary
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`judgment phase, the Court must determine whether there is a “genuine dispute as to any material
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`fact” and whether the moving party is “entitled to judgment as a matter of law.” See Fed. R. Civ.
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`P. 56(a). Fair is now required to either confirm that he is not asserting any claim to which
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`prosecutorial immunity is a defense or show that the King County Defendants do not have
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`enough evidence of an essential element to carry their ultimate burden of persuasion at trial. See
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`Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d at 1102; see also Glucksman v. First
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`Franklin Fin. Corp., 601 F. Supp. 2d 511, 514 (E.D.N.Y. 2009) (“A motion for summary
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`judgment typically involves consideration of a more fully-developed record and requires a
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`determination whether there is a genuine issue of material fact for trial, whereas the key question
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`on a motion to dismiss is the theoretical feasibility of a claim.”). He does not do this.
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`Accordingly, the Court denies Fair’s motion as to the King County Defendants’
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`prosecutorial immunity defense.
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`2.
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`Statute of Limitations (No. 3)
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`Fair says that the King County Defendants’ statute of limitations defense is “bald and
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`conclusory.” Dkt. # 166 at 9.2 He also contends that the King County Defendants misconstrue
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`2 The Court notes that Fair mislabeled the King County Defendants’ statute of limitations defense
`(Defense No. 3) as Defense No. 5 in his motion. See Dkt. # 188 at 7 n.2.
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 7
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`the significance of the Court’s April 13, 2023 Order resolving the King County Defendants’
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`argument that claim preclusion barred Fair from bringing claims related to his conditions of
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`confinement at King County Jail. Dkt. # 188 at 7 (citing Dkt. # 85). He asserts that the Court’s
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`previous order did not discuss the statute of limitations. Id. According to Fair, under RCW
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`4.16.190, the limitations period for his claims related to his conditions of confinement tolled
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`while he was incarcerated. Fair says that this affirmative defense is inapplicable because his
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`claims are timely. Id. (citing Bagley v. CMC Real Est. Corp., 923 F.2d 758, 762 (9th Cir. 1991)).
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`The King County Defendants respond that the statute of limitations defense concerns
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`Fair’s second cause of action about his conditions of confinement at King County Jail. Dkt.
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`# 182 at 4. They say that the parties disagree about the meaning of the Court’s April 13, 2023
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`Order. Id. (citing Dkt. # 85 at 18). They contend that Fair’s confinement-related claims are
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`untimely because they rely on facts known to Fair “before and during the pendency of his
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`previous lawsuit against King County.” Id. at 5. They assert that they “must be allowed to raise
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`statute of limitations for jail claims that don’t comport with” the Court’s April 13, 2023 Order.
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`Id.3
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`In their first motion to dismiss, the King County Defendants “accuse[d] [Fair] of bringing
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`another lawsuit against the same defendants for the same incarceration and argue[d] that [Fair]
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`[was] barred by the dismissal of his earlier lawsuit from pursuing the claims pleaded against it
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`(and its personnel) in this action.” Dkt. # 85 at 16. The Court determined that the King County
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`Defendants’ argument lacked merit because Fair
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`remained in pretrial detention for more than two additional years after the previous
`case was dismissed with prejudice. See Judgment in C16-273-JLR (Apr. 7, 2017)
`(App’x L); Verdict (June 11, 2019) (App’x H). King County [] offered no evidence
`that [Fair] waived or somehow released it or its corrections officials from future
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`3 The King County Defendants do not respond to Fair’s arguments about RCW 4.16.190. See
`Dkt. # 182 at 4–5.
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 8
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`claims. [Fair] may proceed on his claims relating to the conditions of confinement
`continuing, and events occurring, after August 1, 2016, when the operative pleading
`in Case No. C16-273 JLR was filed. See App’x I.
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`Dkt. # 85 at 18. The Court’s April 13, 2023 Order resolved issues related to claim preclusion
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`and concluded that Fair could bring claims related to “the conditions of confinement continuing,
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`and events occurring, after August 1, 2016.” Id. (emphasis added). The order said nothing about
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`the statute of limitations.
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`Fair brings Section 1983 claims and state-law claims against King County for his
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`conditions of confinement at King County Jail. Dkt. # 157 at 2 ¶ 4. In Washington, personal
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`injury torts have a three-year statute of limitations period. RCW 4.16.080(2). And the statute of
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`limitations for federal civil rights claims under Section 1983 is established by the forum state’s
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`law for personal injury actions. See Bonelli v. Grand Canyon Univ., 28 F.4th 948, 952 (9th Cir.
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`2022) (quoting Bird v. Dep’t of Hum. Servs., 953 F.3d 738, 743 (9th Cir. 2019)). Thus, in a
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`Washington forum, the statute of limitations for Section 1983 claims is three years. See A.T. v.
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`Everett Sch. Dist., 300 F. Supp. 3d 1243, 1252 (W.D. Wash. 2018), aff’d, 794 F. App’x 601 (9th
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`Cir. 2019); RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002).
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`Fair’s confinement-related claims accrued while he was incarcerated (i.e., when he first
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`learned of his injury), and under RCW 4.16.190, the limitations period tolled while he was in
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`pretrial detention. See RCW 4.16.190 (tolling the statute of limitation for a “personal disability”
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`including imprisonment “ on a criminal charge prior to sentencing”) (emphasis added); see also
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`Tschabold v. Pierce Cnty., No. 3:25-CV-05096-KKE-DWC, 2025 WL 896746, at *2 (W.D.
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`Wash. Mar. 24, 2025) (describing RCW 4.16.190 as “a statute tolled by personal disability
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`including confinement in pretrial detention”) (emphasis added); Thomas v. Fischer, No. 2:24-
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`CV-01056-JCC-DWC, 2024 WL 5126405, at *3 (W.D. Wash. Nov. 7, 2024), report and
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`recommendation adopted, No. C24-1056-JCC, 2024 WL 5119804 (W.D. Wash. Dec. 13, 2024)
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 9
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`(same).4 Fair was acquitted and released from custody on June 11, 2019. Dkt. # 169-3 at 2
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`(Judgment of Acquittal and Order for Immediate Release from Custody). And he filed his
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`Complaint on December 2, 2021. Dkt. # 1-2. Thus, as a matter of law, he made his claims
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`within the limitations period.
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`Thus, the Court grants Fair’s motion as to the King County Defendants’ statute of
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`limitations defense.
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`3. Waiver (No. 4)
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`The King County Defendants’ fourth affirmative defense asserts that Fair “has waived
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`some or all of the claims in this lawsuit.” Dkt. # 150 at 31. Fair says that the King County
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`Defendants stated in their discovery responses that the basis for this defense is that Fair “failed to
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`fully grieve his complaints” against King County’s Department of Adult and Juvenile Detention
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`(DAJD) about his conditions of confinement. Dkt. # 166 at 8 (citing Dkt. # 167-4 at 6). Fair
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`contends that this assertion is “too bald and conclusory” to provide him with fair notice or
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`withstand summary judgment. Id. (internal citation omitted). He says that to defend his claims,
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`he “must know precisely which claims it is that [the King] County Defendants assert he has
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`waived and how they were waived.’ Id. at 9 (emphasis in original). The King County
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`Defendants merely respond that this affirmative defense is “similar” to their statute of limitations
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`defense. Dkt. # 182 at 5.
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`As stated above, the Court’s April 13, 2023 Order addressed the King County
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`Defendants’ argument that Fair’s 2016 lawsuit against King County precluded him from bringing
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`claims about the conditions at King County Jail in this matter. The Court stated that “King
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`County [] offered no evidence that [Fair] waived or somehow released it or its corrections
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`4 The King County Defendants do not respond to Fair’s arguments about RCW 4.16.190. See
`Dkt. # 182 at 4–5.
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
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`Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 11 of 31
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`officials from future claims. [Fair] may proceed on his claims relating to the conditions of
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`confinement continuing, and events occurring, after August 1, 2016, when the operative pleading
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`in Case No. C16-273 JLR was filed.” Dkt. # 85 at 18 (emphasis added). In response to Fair’s
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`argument, the King County Defendants have not explained how Fair has purportedly waived any
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`of his claims. Their cursory assertion that Fair “failed to fully grieve his complaints” against
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`DAJD fails to create a genuine dispute of material fact. See Totally Her Media, LLC v. BWP
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`Media USA, Inc., No. CV 13-08379-AB (PLAx), 2015 WL 12659912, at *4 (C.D. Cal. Mar. 24,
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`2015) (“The very mission of the summary judgment procedure is to pierce the pleadings and to
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`assess the proof in order to see whether there is a genuine issue of fact.”) (quoting Mende v. Dun
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`& Bradstreet, Inc., 670 F.2d 129, 132 (9th Cir. 1982)).
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`Thus, the Court grants Fair’s motion as to the King County Defendants’ waiver defense.
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`4.
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`Proximate Cause (No. 6)
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`The King County Defendants’ sixth affirmative defense states that Fair’s injuries and
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`damages were proximately caused by his own actions or negligence. Dkt. # 150 at 32.5 Fair
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`says that the King County Defendants asserted in their discovery responses that the basis for this
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`defense is that Fair’s “injuries were proximately caused by his actions of murdering Arpana
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`Jinaga.” Dkt. # 166 at 10. (citing Dkt. # 167-4 at 6). Fair says that this is not a basis on which
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`the King County Defendants can mount a defense. Id. The King County Defendants respond
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`that this defense is proper because Fair proximately caused his own injuries. Dkt. # 182 at 5.
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`Other district courts in this Circuit have reasoned that a defense that says a plaintiff
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`proximately caused their own injuries is not a proper affirmative defense when proximate cause
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`is a prima facie element of the plaintiff’s claim. Acasio v. Lucy, No. 14-CV-04689-JSC, 2017
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`5 The King County Defendants withdraw the portion of this defense that refers to “others.” Dkt.
`# 182 at 5.
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 11
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`Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 12 of 31
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`WL 1316537, at *16 (N.D. Cal. Apr. 10, 2017) (determining that the defendant’s affirmative
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`defenses that “allege that [the] [p]laintiff proximately caused . . . her own injuries . . . are not
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`valid affirmative defenses”); see also Quintana v. Baca, 233 F.R.D. 562, 565 (C.D. Cal. 2005)
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`(striking an affirmative defense that states, “the plaintiff caused the injuries he sustained by his
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`own negligence and omissions” because “this is not a proper affirmative defense; rather it attacks
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`the plaintiff’s contentions that the defendant caused the injuries”).6 These courts reasoned that
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`such an affirmative defense is invalid because “[a] defense which demonstrates that [the]
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`plaintiff has not met [their] burden of proof is not an affirmative defense.” See Acasio, 2017 WL
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`1316537, at *16 (quoting Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002));
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`Hiramanek v. Clark, No. 13-00228, 2015 WL 693222, at *2 (N.D. Cal. Feb. 18, 2015) (citing
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`Zivkovic for the proposition that proximate causation “is not an affirmative defense”). This
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`defense is improper to the extent that it simply provides a basis to negate Fair’s prima facie case.
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`Furthermore, the King County Defendants argue that the proximate cause defense applies
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`because Fair’s “injuries were proximately caused by his actions of murdering Arpana Jinaga.”
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`Dkt. # 167-4 at 6. If the King County Defendants are contending that, if Fair had not killed
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`Jinaga, he would not have been arrested and prosecuted for her murder, the contention is
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`misplaced. The issues in this case concern whether Defendants violated Fair’s rights, after the
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`murder, in the manner alleged in the TAC.
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`6 Contra Estados Unidos Mexicanos v. Diamondback Shooting Sports Inc., No. CV-22-00472-
`TUC-RM, 2024 WL 4817651, at *8 (D. Ariz. Nov. 18, 2024) (declining to strike affirmative defenses
`related to proximate causation). But see Knights v. C. R. Bard Inc., No. CV 19-11911-FDS, 2023 WL
`6142437, at *7 (D. Mass. Sept. 20, 2023) (“Because causation is a prima facie element of [the] plaintiff’s
`claims, a defendants’ direct challenges to actual or proximate causation are not affirmative defenses. See
`Fed. R. Civ. P. 8(c). Instead, they are properly considered specific denials, even if they are initially
`mislabeled as ‘defenses.”) (citing 5 Wright & Miller, Fed. Prac. & Proc. Civ. § 1269 (4th ed. 2023)).
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 12
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`Case 2:21-cv-01706-JHC Document 221 Filed 04/25/25 Page 13 of 31
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`Thus, the Court grants summary judgment as the King County Defendants’ sixth
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`affirmative defense.7
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`5.
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`Apportionment of Fault (No. 7)
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`The King County Defendants’ seventh affirmative defense states, “The damages and/or
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`injuries sustained, if any, were caused solely or in part by the fault of a third party or entity not
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`within the control of the King County Defendants, and pursuant to RCW 4.22.070, fault must be
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`apportioned.” Dkt. # 150 at 32. 8 Fair contends that this affirmative defense is “too bald and
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`conclusory” for him to defend against. Dkt. # 166 at 11. The King County Defendants assert
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`that this defense is like their sixth affirmative defense (proximate cause) “but clarifies that there
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`must be apportionment of fault between [] [D]efendants and Fair for his state law claims.” Dkt.
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`# 182 at 7. They say that Fair’s actions “are the sole but-for and legal cause of his alleged
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`damages.” Id.
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`Apportionment of fault is distinct from a court’s determination of which actors caused of
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`an injury. As for Fair’s state-law claims, under Washington law, “each tortfeasor is liable only
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`for damages corresponding to its proportionate share of fault as determined by the trier of fact.”
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`Barton v. Dep’t of Transp., 178 Wash.2d 193, 308 P.3d 597, 602 (Wash. 2013) (citing RCW
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`4.22.070(1)); see also Est. of Torres by & through Banda v. Kennewick Sch. Dist. No. 17, No.
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`4:19-CV-05038-MKD, 2024 WL 1337180, at *8 (E.D. Wash. Mar. 28, 2024).9 At this stage, the
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`7 “In attempting to controvert an allegation in the complaint, a defendant occasionally may label
`his denial as an affirmative defense rather than as a specific denial. But as long as the pleading clearly
`indicates the allegations in the complaint that are intended to be placed in issue, the improper designation
`should not operate to prejudice the pleader.” 5 Wright & Miller, Fed. Prac. & Proc. Civ. § 1269 (4th ed.
`April 2025 update).
`8 As stated above, the King County Defendants have withdrawn the portion of the affirmative
`defense that refers to a “third party” or other “entity.” Dkt. # 182 at 7.
`9 In their opposition brief, the King County Defendants do not contend that this affirmative
`defense applies to Fair’s federal claims. See Dkt. # 182 at 7. The Court notes that district courts in this
`Circuit have declined to apply the apportionment of fault defense to Section 1983 claims. See Est. of
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`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 13
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`Court has not determined liability. And Fair has put forth no evidence negating an essential
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`element of the King County Defendants’ apportionment of fault defense, nor has he shown that
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`the King County Defendants do not have enough evidence of an essential element to carry their
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`ultimate burden of persuasion at trial. See Nissan Fire & Marine Ins. Co., 210 F.3d at 1102.
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`Thus, the Court denies Fair’s motion as to the King County Defendants’ seventh
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`affirmative defense.
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`6.
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`Probable Cause (No. 8)
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`In their eight affirmative defense, the King County Defendants allege that “[s]ome or all
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`of [Fair’s] claims are barred by the preclusive findings of probable cause.” Dkt. # 150 at 32.
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`Fair says that the Court determined in its April 13, 2023 Order that he was not collaterally
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`estopped from challenging the probable cause rulings of the King County Superior Court during
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`his criminal prosecution for Jinaga’s murder. Dkt. # 166 at 13 (citing Dkt. # 85 at 13–15). Fair
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`also says that to succeed on his malicious prosecution claim he must show that he was
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`prosecuted without probable cause. Id. Thus, according to Fair, this is not a proper affirmative
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`defense. Id. (citing Zhang v. EnergyAuth., 22-694, 2024 WL 3091848, at *10 (W.D. Wash. June
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`21, 2024)).
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`The King County Defendants respond that “the affirmative defense of probable cause
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`relates to the claims brought by Fair of malicious prosecution.” Dkt. # 182 at 7. They say that
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`“a defense to malicious prosecution is the existence of probable cause.” Id. (citing Peasley v.
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`Puget Sound Tug & Barge Co., 13 Wn.2d 485, 125 P.2d 681 (1942)). The King County
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`Moreno by & through Moreno v. Corr. Healthcare Companies, Inc., No. 4:18-CV-5171-RMP, 2019 WL
`10733237, at *2 (E.D. Wash. Aug. 5, 2019) (“While defendants to [S]ection 1983 actions may argue that
`other people are responsible for the plaintiff’s injuries, defendants may not ask the jury to apportion fault
`among parties and non-parties, including other defendants, under state comparative fault and
`apportionment laws.”) (citing Logan v. City of Pullman Police Dep’t, No. CV-04-214-FVS, 2006 WL
`994759, at *2 (E.D. Wash. Apr. 14, 2006)).
`ORDER RE: FAIR’S MOTIONS FOR SUMMARY
`JUDGMENT ON DEFENDANTS’ AFFIRMATIVE
`DEFENSES - 14
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