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28 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JOHN MERRELL,

Plaintiff,

v.

NOREEN RENIER,

Defendant.

CASE NO. C06-404JLR

ORDER

I. INTRODUCTION

This order supplements the court’s prior ruling on Defendant Noreen Renier’s

motion (Dkt. # 43) for reconsideration of the court’s November 16, 2006 Order. In the

court’s partial ruling on the motion for reconsideration, the court stated that it would

issue a separate order addressing Ms. Renier’s argument that Plaintiff John Merrell’s

alleged breach of the contract in 1994 discharged her duty to perform under the contract. 

For the reasons stated below, the court DENIES Ms. Renier’s motion for reconsideration

in its entirety. 

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1

Ms. Renier agues that it “could” be a violation of the Settlement Agreement because it

would only be a violation if the agreement’s non-disparagement clause applied to truthful

statements. For her own defense, Ms. Renier contends that it does not.

ORDER – 2

II. BACKGROUND & ANALYSIS

The court previously set forth the factual background of this dispute in its

November 16, 2006 Order (Dkt. # 39). The court will not repeat those facts here. 

In response to Mr. Merrell’s motion for summary judgment on his breach of

contract claim, Ms. Renier argued that Mr. Merrell breached the Settlement Agreement

first, which discharged her duty to perform under the agreement. Def.’s Resp. at 10. In

support of her theory, Ms. Renier cites to excerpts from a book entitled “Psychic Sleuths: 

ESP and Sensational Cases,” written by Gary Posner and published in 1994. Id. at 11. 

Specifically, Ms. Renier cites to a chapter in the book that discusses her psychic abilities. 

Id. Ms. Renier argues that Mr. Merrell provided negative material about Ms. Renier for

inclusion in the book, which “could” be a violation of the agreement.1

 Id. In her

responsive brief, however, Ms. Renier failed to provide any evidence to support her claim

that the 1994 book, written by a third-party, constituted a breach of the parties’ nondisparagement agreement. Only in the instant motion for reconsideration does Ms.

Renier provide evidence that Mr. Merrell provided the negative material about Ms.

Renier to Mr. Posner for inclusion in his book. Def.’s Request at 2. Ms. Renier provides

cites to Mr. Merrell’s deposition in which he testifies that he indeed provided the

information for Mr. Posner’s book. Second Hall Decl., Ex. 4 (Merrell Dep. at 14-15). 

Mr. Merrell also testifies, however, that he provided this information prior to the parties

signing of the Settlement Agreement. Id.

Ms. Renier offers no evidence to dispute Mr. Merrell’s sworn testimony that he

provided information for Mr. Posner’s book before the parties finally settled their dispute. 

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28 ORDER – 3

Instead, Ms. Renier states that Mr. Merrell’s testimony lacks credibility because the book

was not published for two year after the parties signed the Settlement Agreement was

signed. While Ms. Renier has not apprised the court of what amount of time would be

reasonable for the publication of a book, the court does note that Mr. Merrell testified that

he communicated with Mr. Posner regarding the Renier chapter of the book for over six

years before he signed the Settlement Agreement. Id. at 16. Thus, it appears from the

only evidence before the court on this issue that this particular book was not on the fast

track to publication. 

Ms. Renier contends that, at the very least, there is a genuine issue of material fact

as to whether Mr. Merrell was the first to breach the Settlement Agreement. The

evidence before the court suggests otherwise. Mr. Merrell testified that he provided the

information for Mr. Posner’s book before the Settlement Agreement was signed and thus

he did not breach the agreement. There is no evidence before the court to contradict Mr.

Merrell’s sworn testimony. Rule 56(e) of the Federal Rules of Civil Procedure states:

“[w]hen a summary judgment motion is made . . . an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s

response, by affidavits or as otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial.” Ms. Renier’s suspicions as to the timing

of the publication of Mr. Posner’s book do not by themselves create a genuine issue of

material fact for trial.

Ms. Renier also asserts that Mr. Merrell had a duty to retract the information he

provided to Mr. Merrell or prevent publication of the book. The Settlement Agreement

provides:

That JOHN MERRELL and NOREEN RENIER, directly or indirectly, will

cease and desist from engaging in any form of conduct which attempts in

any way to diminish and/or disparage the other’s reputation, personally,

professionally and/or occupationally, including but not limited to contacts

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28 ORDER – 4

with each other, their family, loved ones, business associates, potential

business associates, clients, and within their own peer group and any news

organizations or media of any type.

SA at 2. There is nothing in the Settlement Agreement that requires the parties to retract

prior statements or prevent the future publication by third parties of those statement. The

Settlement Agreement requires the parties to “cease and desist,” a phrase the court

construes to apply to future action by the parties. Accordingly, based on the plain

language of the parties’ agreement, the court finds that Mr. Merrell did not have a duty to

retract the information he provided to Mr. Posner in the years prior to signing the

Settlement Agreement. 

Mr. Merrell does not dispute that the law in Washington is that the material breach

of a bilateral contract by one party, discharges the obligation of the other party to

perform. Pl.’s Reply at 9. Mr. Merrell’s only contention is that Ms. Renier cannot prove

that he breached the Settlement Agreement because the alleged breach occurred outside

the limitation period for a breach of contract claim. Id. This, according to Mr. Merrell, is

fatal to Ms. Renier’s discharge defense. As Ms. Renier correctly points out, however, the

statute of limitations under Washington law does not preclude defenses. Def.’s Request

at 2; see also Allis-Chalmers Corp. v. City of N. Bonneville, 775 P.2d 953 (1989)

(“Statutes of limitations never run against defenses arising out of the transactions sued

upon.”). It is the lack of evidence that precludes this defense, not the statute of

limitations.

In sum, the court does not find that there is sufficient evidence to that Mr. Merrell

breached the Settlement Agreement in 1994 or that Ms. Renier’s duty to perform pursuant

to the agreement was discharged. The court will not alter its ruling that Ms. Renier

breached the agreement by publishing A Mind for Murder and the Posner article.

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28 ORDER – 5

III. CONCLUSION

For the reasons stated above, the court DENIES Ms. Renier’s motion for

reconsideration (Dkt. # 43).

Dated this 22nd day of January, 2007.

A JAMES L. ROBART

United States District Judge

Case 2:06-cv-00404-JLR Document 53 Filed 01/22/07 Page 5 of 5