McNae v. Arag Ins. Co., No. 2:24-cv-00211-TL (2025)

Case details
Full caption
William McNae and Ronda McNae v. ARAG Insurance Company
Country
United States
Jurisdiction
Federal
Decided
2025
Disposition
Motion Granted
Majority
Tana Lin United States (J.) (unanimous Court)
WILLIAM MCNAE and RONDA MCNAE, husband and wife,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3170917Only the Westlaw citation is currently available.United States District Court, W.D. Washington.WILLIAM MCNAE and RONDAMCNAE, husband and wife, Plaintiffs,v.ARAG INSURANCE COMPANY, Defendant.CASE NO. 2:24-cv-00211-TL|11/13/2025Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Attorneys and Law FirmsWilliam McNae, Kirkland, WA, Pro Se.Ronda McNae, Kirkland, WA, Pro Se.Benjamin J. Roesch, Gabriel Baker, Jensen Morse BakerPLLC, Seattle, WA, Michael T. Mullaly, Pro Hac Vice, SquirePatton Boggs LLP, Columbus, OH, for Defendant.ORDER ON MOTION TO STRIKE*1 This matter is before the Court on Defendant's “Motion toStrike ECF #93 and Plaintiffs’ Supporting Documents.” Dkt.No. 95. Having considered the motion, Plaintiffs’ response(Dkt. No. 97), and the relevant record, and finding it inthe best interests of all Parties to rule before receivingDefendant's reply, the Court GRANTS the motion andSANCTIONS Plaintiffs.I. BACKGROUNDUnder Local Civil Rule (“LCR”) 37(a)(2), parties may jointlyfile their briefing on a discovery dispute and note thesubmission as a same-day motion. The Rule lays out thebriefing steps as follows:(B) The moving party may draft an introductory statement,setting forth the context in which the dispute arose andthe relief requested. Each disputed discovery request andthe opposing party's objection/response thereto shall beset forth in the submission. Immediately below that, themoving party shall describe its position and the legalauthority which supports the requested relief. The movingparty shall provide the opposing party with a draft of theLCR 37 submission and shall also make the submissionavailable in computer-readable format.(C) Within seven days of receipt of the LCR 37 submissionfrom the moving party, the opposing party shall serve arebuttal to the moving party's position for each of thedisputed discovery requests identified in the motion. Theopposing party may also include its own introductorystatement. The opposing party's rebuttal for each disputeddiscovery request shall be made in the same documentand immediately following the moving party's statement insupport of the relief requested....(D) Within four days of receipt of the LCR 37 submissionfrom the opposing party, the moving party will either add itsreply and file the joint submission with the court, or notifythe opposing party that it no longer intends to move for therequested relief. The moving party's reply, if any, in supportof a disputed discovery request shall follow the opposingparty's rebuttal for such request in the joint submission andshall not exceed 175 words....LCR 37(a)(2)(B)–(D). Parties may use the joint filingprocedure if they agree to do so. LCR 37(a)(2). Here, previousOrders of the Court require the Parties to use this procedurefor all discovery disputes. See Dkt. No. 32 at 4 (orderingParties to comply with LCR 37(a)); Dkt. No. 94 at 2–3(clarifying that Parties must use the expedited joint motionprocedure under LCR 37(a)(2)).On October 20, 2025, Plaintiffs filed what purported to be ajoint submission prepared in accordance with the expeditedbriefing procedure under Local Civil Rule 37(a)(2). Dkt. No.93.But on October 23, 2025, Defendant moved to strike thestipulated joint filing. Dkt. No. 95. In its motion, Defendantinforms the Court of the following:(1) After receiving Defendant's responses to their discoverymotion for inclusion in the joint filing, Plaintiffs notonly wrote replies, but also rewrote portions of their
WILLIAM MCNAE and RONDA MCNAE, husband and wife,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2“moving party's argument” and added new exhibits withoutinforming Defendant and without giving Defendant anopportunity to modify its responses. Dkt. No. 95 at 5.*2 (2) Two of Plaintiffs’ reply sections, though certifiedto be shorter than the maximum-allowable 175 words, infact exceeded the limit. Id.(3) When Defendant contacted Plaintiffs, to inform themof the issue and request that they either “submit an errataor praecipe correcting the filing by 5:00 that afternoon”or meet and confer regarding a motion to strike, Plaintiffsdeclined to do either, writing:We do not agree that a praecipe or errata is warranted. Allmodifications were formatting orcitation clarifications that did not alter substance. Plaintiffscomplied in good faith with LCR 37(a)(2), and norule authorizes opposing counsel to dictate post-filingcorrections absent a court order.Because the issue you raise concerns formatting and word-count allegations rather than a live discovery dispute, it isnot a proper subject for an LCR37(a)(1) conference. Plaintiffs have alreadyprovided their written position in good faith, and no furtherconferral is required. If ARAG elects toraise its objections through motion practice, we willrespond accordingly.Id. at 11, 19; Dkt. No. 98-8 (first email correspondence) at2.II. DISCUSSIONA. Preliminary MatterPlaintiffs’ responsive briefing contains numerousmischaracterizations of the authorities that they cite. In themost egregious case, Plaintiffs rely heavily on “Local [Civil]Rule...1(c),” which they claim “permits flexibility ‘in theinterest of justice.’ ” Dkt. No. 97 at 2; see also id. at 2, 3, 4,6, 9. But Local Civil Rule 1(c), whose purpose is to defineterms such as “Chief Judge” and “Stipulated Order,” neitheraddresses this topic nor contains this quote. Federal Rule ofCivil Procedure 1, which Plaintiffs also cite, apparently for thesame proposition (see Dkt. No. 97 at 4, 9), is just as irrelevant.The basis of Plaintiffs’ misrepresentations is unclear, as thereis no Local Civil Rule that “permits flexibility ‘in the interestof justice,’ ” and the only place the phrase “interest ofjustice” appears in the Local Civil Rules at all is in referenceto attorney discipline. See LCR 83.3(c)(7)(B). Quite to thecontrary, Plaintiffs have been repeatedly put on notice thatthey are expected to comply fully and completely with thelocal rules. See, e.g., Dkt. No. 94 at 4–5, Dkt. No. 92 at 4, Dkt.No. 78 at 6, Dkt. No. 66 at 10, Dkt. No. 55 at 2.In the Rule 37(a)(2) submission that is the subject ofthe instant Motion to Strike, Defendant points out anotherapparently fabricated quote when it observes “Abatie doesnot contain the quote—‘factual materials underlying anERISA determination are discoverable’— attributed to it byPlaintiffs.” Dkt. No. 93 at 16–17. Removing the offending“quote” appears to be among the edits Plaintiffs made to theirarguments after receiving Defendants’ briefing, but the draftPlaintiffs previously attached to an unrelated motion showsthat, indeed, Plaintiffs at one time represented this statementas a quotation from Abatie v. Alta Health & Life InsuranceCo., 458 F.3d 955, 971 (9th Cir. 2006), which Defendantsnote involved neither a discovery dispute nor the questionof whether ERISA preempted state law. Dkt. No. 85-6 (JointSubmission Draft); Dkt. No. 93 at 17. More alarmingly,the “quotation” does not seem to exist anywhere—at least,nowhere within the ambit of a Google or Westlaw search.*3 It should go without saying that by enclosing materialin quotation marks, Plaintiffs represent to the Court that thatmaterial is a direct quotation on whose accuracy the Courtcan rely. While the Court will give Plaintiffs the benefit ofthe doubt and assume these were honest, if careless, mistakes,Plaintiffs are again reminded of their duty under Federal Ruleof Evidence 11 to make accurate representations to the Court.B. Motion to StrikeLocal Civil Rule 37(a)(2) does not explicitly prohibit amoving party from making any alteration to statements insupport of the relief after sharing them with opposing counsel,and at least one court in this District has interpreted LocalCivil Rule (a)(2)(B) to require sharing of an “initial” ratherthan a “final” draft. See Collins v. Am. Bankers Ins. Co.of Fla., No. C23-1959, 2024 WL 3992476, at *2 (W.D.Wash. Aug. 29, 2024). As for any substantive changes,however, this Court is persuaded by Defendant's common-sense argument: “Just as a moving party cannot retroactivelychange its argument in a filed motion to compel, a movingparty[ may not] retroactively change its initial argument ina joint submission....” Dkt. No. 95 at 13. It is self-evident
WILLIAM MCNAE and RONDA MCNAE, husband and wife,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3as a matter of fairness that any substantive changes made toa moving party's arguments after receipt of the non-movingparty's responses must, at the very least, be shared withthe non-moving party so that its responses may be adaptedaccordingly. Plaintiffs’ failure to do so not only gave them“the unfair advantage of knowing ARAG's response” whilerewriting their arguments (Dkt. No. 95 at 15), but also riskedthe false appearance that Defendant had ignored, and thuswaived, new arguments that in truth were never presented toit.Accordingly, fairness requires that the Court strike the “jointsubmission,” which, under the circumstances, is not a trulyjoint submission nor an accurate representation of Plaintiffs’arguments or Defendant's responses to those arguments.C. Leave to RefileThe Joint Submission is stricken without prejudice, and maybe updated and refiled if needed, subject to the requirementsof Local Civil Rule 37(a)(2) and this Order. However, basedon the record currently before the Court, such motion wouldlikely be denied at this time. A joint submission under LocalCivil Rule 37(a)(2):must include a certification that the moving party has ‘ingood faith conferred or attempted to confer with the personor party failing to make disclosure or discovery in an effortto resolve the dispute without court action.’ Fed. R. Civ.P. 37(a)(1). The certification requirement is more than aformalistic prerequisite to judicial resolution. Cardoza v.Bloomin’ Bands, Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev.2015). It must certify that the conferral attempt resulted inan impasse, which ensures that the parties have exhaustedtheir attempts to resolve their dispute before seeking theCourt's intervention. See Beasley v. State Farm Mut. Auto.Ins. Co., 2014 WL 1268709, slip op. at 1 (W.D. Wash.2014) (“A good faith effort to resolve discovery disputesrequires an exchange of information until no additionalprogress is possible.”).Collins, 2024 WL 3992476, at *2. Where the record showsthat the non-moving party “remain[s] open to supplementingits productions...the parties...have not[ ]reached an impassejustifying the Court's intervention[ and] have not met themeet and confer certification requirements of Rule 37.”Id.; see also Selim v. Fivos, Inc., No. C22-1227, 2023WL 3172467, at *2 (W.D. Wash. May 1, 2023) (“Post-conference communications showed that the parties agreedand expected that Defendant would continue to supplementits discovery responses. Ongoing discussions after an LCR 37conference preclude a finding that no additional progress waspossible.” (internal record citation omitted)).*4 The email correspondence filed by Plaintiffs indicatesthat discovery discussions are ongoing and that Defendantmade a voluminous production on or around October 29,2025. See Dkt. No. 98-8 at 1–2. As of now, therefore, thereis no impasse and no basis for a Rule 37(a)(2) motion. If atsome future time the Parties do find themselves at an impasse,beyond which further progress is impossible, Plaintiffs mayupdate and renew their motion for consideration on the merits.D. Sanctions1. Defendant's Motion for SanctionsDefendant asks the Court to “impose such sanctions,monetary or otherwise, as may be appropriate and necessaryto prevent further inappropriate filings by Plaintiffs, pursuantto the Court's authority to manage its docket....” Dkt. No. 95at 17. A “district court has the inherent authority to imposesanctions for bad faith, which includes a broad range of willfulimproper conduct.” Fink v. Gomez, 239 F.3d 989, 992 (9thCir. 2001). Conduct may also be sanctionable under specificstatutes and procedural rules. In this district, Local Civil Rule11(c) provides:An attorney or party who without justcause fails to comply with any of theFederal Rules of Civil or CriminalProcedure, these rules, or an order ofthe court, or who presents to the courtunnecessary motions or unwarrantedopposition to motions, or who fails toprepare for presentation to the court,or who otherwise so multiplies orobstructs the proceedings in a casemay, in addition to or in lieu ofthe sanctions and penalties providedelsewhere in these rules, be requiredby the court to satisfy personally suchexcess costs and may be subject tosuch other sanctions as the court maydeem appropriate.(Emphasis added).
WILLIAM MCNAE and RONDA MCNAE, husband and wife,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Here, it is clear that Plaintiffs’ opposition is unwarranted,because Plaintiffs seem to have no real objection either toDefendant's pre-filing request that they “file an errata orpraecipe with the Court,” Dkt. No. 98-8 at 5, or to theCourt's now striking the motion and allowing them to refileit. To the contrary, Plaintiffs repeatedly urge the Court tocure any prejudice by allowing them to submit corrections—in technical terms, a praecipe—or to file “a correctedjoint submission...that restores the opening text as servedand relocates any affected sentences to the reply boxes”—inwhich case the original submission would be stricken. Dkt.No. 97 at 5; see also id. at 3–4, 6, 7, 9, 13.Put differently, it appears the Parties are in some degree ofagreement as to what should happen here. This matter couldhave been, and should have been, settled without the Court'sinvolvement. Plaintiffs assert that their actions caused noprejudice. Dkt. No. at 97 at 4. But Plaintiffs’ uncompromisingpronouncement that “no further conferral is required” (Dkt.No. 98-8 at 2) multiplied proceedings by inducing the filing ofa motion, a response, and now this Order, all of which wouldhave been completely avoidable had Plaintiffs conferred ingood faith (and all of which resulted from Plaintiffs’ desirefor Court intervention when the Parties were not at an actualimpasse). This is sanctionable conduct under the Local Rules—especially in light of the Court's prior warnings to Plaintiffsregarding acting in good faith and in accordance with therules (see, e.g., Dkt. No. 78 at 6–7)—and the Court will ordera sanction of $100 to be paid by Plaintiffs to Defendant'scounsel for the partial reimbursement of the unnecessary feesand costs incurred by Defendant in bringing this motion.2. Plaintiffs’ False Statements About the Status of theirRepresentation*5 Since Defendant moved for sanctions, the Courthas become aware of additional sanctionable behavior byPlaintiffs. As an exhibit to Plaintiffs’ response to the motionto strike, Plaintiffs provided the Court with a series ofemails between themselves and Defendant's counsel datedNovember 4 and 5, 2025. Dkt. No. 98-4 (second emailcorrespondence). In these emails, Plaintiffs represented toopposing counsel that they had retained an attorney for thiscase, whose application for admission to the bar of this Courtwas currently pending. Id. at 2, 3, 12. The Court issuedan Order requiring Plaintiffs to clarify the status of theirrepresentation and to provide contact information for theirattorney, if any, to Defendant's counsel. Dkt. No. 99.Plaintiffs timely filed a notice as directed, stating, in relevantpart:Plaintiffs have not retained anyattorney to represent them in thismatter. No attorney is advisingPlaintiffs in connection with this case.Plaintiffs have identified a prospectiveattorney who is pursuing WashingtonState Bar admission. Plaintiffs havenot retained that attorney, and thatattorney is not providing Plaintiffswith any legal advice regardingthis case unless and until properlyadmitted.Dkt. No. 100 (“notice”) at 1–2. While this notice clarifiesthe status of Plaintiffs’ representation, it blatantly contradictsnumerous representations Plaintiffs made in their emails toDefendant's counsel, which Plaintiffs then filed with theCourt:• “For transparency, we have officially retained counselfor the ARAG bad-faith case, and formal admission ispending Clerk of Court sign-off.” Dkt. No. 98-4 at 2(boldface added).• “We have formally retained counsel for the ARAG bad-faith case, with admission pending Clerk of Court sign-off.” Id. at 3 (boldface added).• “Last Friday morning, I received an email from theattorney who will be representing us in this matter....”Id. (boldface added).• “To clarify, we are in an interim stage where counsel hasbeen retained for the ARAG bad-faith matter, but theiradmission to the Western District of Washington is stillpending.” Id. at 12 (boldface added).If Plaintiffs’ representations in their notice can be believed,the statements they made to opposing counsel clearly cannot.More than unbelievable, the statements are plainly false.It cannot be true that Plaintiffs “have not retained anyattorney to represent them in this matter,” and also thatthey have “officially” and “formally retained” “the attorneywho will be representing us in this matter.” It cannot betrue that an attorney (or “prospective attorney”) who is
WILLIAM MCNAE and RONDA MCNAE, husband and wife,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5“pursuing Washington State Bar admission” can also havetheir “admission to the Western District of Washington”“pending Clerk of Court sign-off.” While mistaken details ofattorney admission might be plausibly attributed to innocentconfusion, there is no question that Plaintiffs knew very wellthat they had not retained an attorney for this matter when theytold opposing counsel that they had. They knew, and they lied.The Court had previously advised Plaintiffs “that pro selitigants are subject to Federal Rule of Civil Procedure 11,which permits district courts to impose sanctions on partiesand attorneys for inaccurate representations.” Dkt. No. 78 at11. In addition, courts have inherent authority to sanction aparty that “has willfully deceived the court and engaged inconduct utterly inconsistent with the orderly administration ofjustice,” up to and including by dismissing an action. Wyle v.R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983).“It is well settled that dismissal is warranted where, as here,a party has engaged deliberately in deceptive practices thatundermine the integrity of judicial proceedings.” Anheuser-Busch, Inc. v. Nat. Beverage Distributors, 69 F.3d 337, 348(9th Cir. 1995) (collecting cases).*6 The Court will not impose a sanction for Plaintiffs’ falsestatements to opposing counsel this time. However, the Courthopes Plaintiffs realize how poorly their actions reflect onthem. Going forward, Plaintiffs are expected to be truthfulin their representations to both opposing counsel and theCourt, and they are advised that any similar conduct in thefuture will expose them to sanctions, up to and includingadditional financial sanctions and/or dismissal of their casewith prejudice.III. CONCLUSIONAccordingly, the Court ORDERS as follows:(1) Defendant's motion (Dkt. No. 95) is GRANTED, andDocket No. 93 is STRICKEN.(2) As a sanction for Plaintiffs’ abuse of the joint submissionprocess, and to avoid future such abuses, Plaintiffs areORDERED to include in any future LCR 37(a)(2) submissiona certification that (a) opposing counsel has been providedwith the final version of the joint submission at least one fullbusiness day before filing, (b) no changes have been madeto the joint submission after it was shared with opposingcounsel, and (c) the Parties have reached an impasse.(3) As a sanction for Plaintiffs’ unreasonable refusal toresolve this issue without Court intervention, Plaintiffs areORDERED to pay a $100 sanction toward the fees andcosts incurred by Defendant in bringing the motion to strike.Plaintiffs SHALL file a notice within fourteen (14) days ofthe date of this Order confirming that payment has been madeto the law firm representing Defendant in this matter.(4) Plaintiffs are ADVISED that they are expected toresolve all disputes, to the extent possible, without Courtinvolvement. Should the Court again find the Plaintiffs havepresented “unnecessary motions or unwarranted opposition tomotions” without making a good-faith effort to resolve thematter with opposing counsel, Plaintiffs may be ordered toreimburse Defendant for the entirety of its unnecessary costsincurred due to Plaintiffs’ intransigence.Dated this 13 day of November, 2025.ATana LinUnited States District JudgeAll CitationsSlip Copy, 2025 WL 3170917End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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