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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 RICHARD BREES, CASE NO. 3:18-cv-05691-RJB 9 Plaintiff, ORDER 10 v. 11 HMS GLOBAL MARITIME INC, et al., 12 Defendants. 13
THIS MATTER comes before the Court on review of the record. The Court is familiar 14 with the record and the materials herein, and it is fully advised. 15 For the reasons set forth below, Defendants Pierce County, Tiffany Garcia, and 16 MaryBeth DiCarlo should be granted leave to amend or withdraw their Motion to Dismiss for 17 Failure to State a Claim (Dkt. 51); and Defendants Steve Caputo, Dominick De Lango, HMS 18 Ferries Inc., HMS Global Maritime Inc., Derick Leenstra, Mylinda Miller, Tara Reynolds, and 19 Thomas Ripa (“HMS Defendants”) should be granted leave to amend or withdraw their CR 20 12(b)(6) Motion for Dismissal of Claims based on Alleged Violations of the Washington State 21 Constitution (Dkt. 80). If Defendants do not amend or withdraw their pending motions to dismiss 22 (Dkts. 51, and 80), they should brief the Court, in writing, as to whether their pending motions to 23 dismiss relate to the operative complaint (Second Amended Complaint, Dkt. 83) in this matter. 24 1 I. BACKGROUND 2 On June 20, 2019, Pierce County, Tiffany Garcia, Lauren Behm, and MaryBeth DiCarlo 3 (“County Defendants”) filed a motion to dismiss (Dkt. 51) and a supplemental brief (Dkt. 69). 4 On July 12, 2019, Plaintiff untimely responded in opposition to County Defendants’ 5 motion to dismiss. Dkt. 72.
6 On July 19, 2019, the Court ruled on and granted County Defendants’ motion to dismiss 7 as to Plaintiff’s 42 U.S.C. § 1983 claim; the Court ordered the Parties to show cause, in writing, 8 if any they have, why the Court should not decline to exercise supplemental jurisdiction over and 9 dismiss Plaintiff’s state law claims against County Defendants. Dkt. 74. 10 Plaintiff filed a response to the order to show cause (Dkt. 78) and County Defendants 11 filed a response to the order to show cause (Dkt. 79). 12 On August 20, 2019, the Court sua sponte issued an order granting plaintiff leave to file a 13 second amended complaint as to County Defendants only. Dkt. 81. The Court ordered that the 14 second amended complaint, if any, shall be served and filed no later than September 6, 2019. The
15 Court continued: “The Order on Pierce County Defendants’ CR 12(b) Motion to Dismiss (Dkt. 16 74) and rulings on Motions to Compel (Dkts. 62; and 63) are HELD IN ABEYANCE until the 17 Court has considered the sufficiency of Plaintiff’s second amended complaint, if any.” Dkt. 81, 18 at 2. 19 On September 3, 2019, Plaintiff filed a Second Amended Complaint. Dkt. 83. Among 20 other amendments, the Second Amended Complaint removed Lauren Behm as a named 21 Defendant. Compare Dkt. 39, at 3–6, with Dkt. 83, at 3–6. 22 On September 4, 2019, the County Defendants filed an Objection to Proposed Second 23 Amended Complaint, with three primary arguments related to the Second Amended Complaint. 24 1 Dkt. 86. First, County Defendants argue that the Second Amended Complaint deletes Defendant 2 Lauren Behm as a named Defendant, and she should be dismissed with prejudice. Dkt. 86, at 3. 3 Second, County Defendants argue that personal jurisdiction over Defendants, Tiffany Garcia, 4 Lauren Behm, and MaryBeth DiCarlo is absent because Plaintiff has not served any amended 5 complaints on them. Dkt. 86, at 3–4. Third, County Defendants argue that the Second Amended
6 Complaint fails to assert a federal or state claim against County Defendants. Dkt. 86, at 4–5. 7 On August 15, 2019, HMS Defendants filed a CR 12(b)(6) Motion for Dismissal of 8 Claims based on Alleged Violations of the Washington State Constitution. Dkt. 80. HMS 9 Defendants also filed a notice of errata replacing page one of their motion to dismiss. Dkt. 82. 10 On September 3, 2019, Plaintiff filed a response in opposition to HMS Defendants’ Motion to 11 Dismiss. Dkt. 84. Plaintiff also filed a Motion to Compel Discovery against the defendants. Dkt. 12 86. On September 6, 2019, HMS Defendants filed a reply. Dkt. 87. 13 Below, the Court first discusses this case’s unusual and confusing procedural history. 14 Second, the Court discusses the dismissal of Defendant Lauren Behm. Finally, the Court briefly
15 discusses personal jurisdiction and service of process. 16 II. DISCUSSION 17 A. Unusual and Confusing Procedural History 18 Although County Defendants’ motion to dismiss (Dkt. 51) and HMS Defendants’ motion 19 to dismiss (Dkt. 80) may have merit, they were drafted with respect to Plaintiff’s Amended 20 Complaint (Dkt. 39)—which is no longer the operative complaint in light of Plaintiff having 21 filed a Second Amended Complaint (Dkt. 83). This has produced an unusual and confusing 22 procedural history. 23 24 1 Therefore, in an effort to simplify issues emerging from the record, and to give the 2 defendants an opportunity to fully and fairly defend themselves against Plaintiff’s claims in the 3 Second Amended Complaint, Defendants Pierce County, Tiffany Garcia, and MaryBeth DiCarlo 4 should be granted leave to amend or withdraw their Motion to Dismiss for Failure to State a 5 Claim (Dkt. 51). HMS Defendants should be granted leave to amend or withdraw their CR
6 12(b)(6) Motion for Dismissal of Claims based on Alleged Violations of the Washington State 7 Constitution (Dkt. 80). If the defendants do not amend or withdraw their pending motions to 8 dismiss (Dkts. 51; and 80), they should brief the Court, in writing, as to whether their pending 9 motions to dismiss should be construed as relating to the operative complaint in this matter. Any 10 such amendments, notices of withdrawal, or briefs should be filed by September 27, 2019. Any 11 opposition papers to any such amendments, notices of withdrawal, or briefs shall be filed by 12 October 14, 2019; any reply papers shall be filed by October 18, 2019. 13 The Order on Pierce County Defendants’ CR 12(b) Motion to Dismiss (Dkt. 74) should 14 be stricken, and Plaintiff’s Motions to Compel against Pierce County (Dkts. 62; and 63) should
15 be renoted for September 27, 2019. 16 B. Dismissal of Defendant Lauren Behm 17 Defendants not named in an amended complaint are no longer defendants. See Ferdik v. 18 Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). Here, Plaintiff deleted any mention of Lauren 19 Behm from the Second Amended Complaint, even where the complaint discusses the Pierce 20 County employees, e.g., Dkt. 83, at 13–15, and Plaintiff removed her from the list of named 21 defendants. Compare Dkt. 39, at 3–6, with Dkt. 83, at 3–6. It appears that Plaintiff has 22 abandoned his claims against Lauren Behm. 23 24 1 County Defendants argue that the Court should dismiss with prejudice Lauren Behm, but 2 she is no longer a party to the case. Dismissal is not appropriate or necessary. Therefore, to the 3 extent that County Defendants move to dismiss with prejudice Lauren Behm, that motion should 4 be denied as moot. 5 C. Personal Jurisdiction and Service of Process
6 County Defendants argue that there is no personal jurisdiction over Defendants Tiffany 7 Garcia and MaryBeth DiCarlo and Lauren Behm (“County Employees”) because Plaintiff fails to 8 show service of process on these Defendants. Dkt. 86, at 3–4. 9 Plaintiff filed four addressed summons forms with the Second Amended Complaint. 10 Dkts. 83-1–4. Two of them were addressed to MaryBeth DiCarlo and Tiffany Garcia. Dkts. 83- 11 3–4. The Court had previously granted Plaintiff’s request for assistance as to service pursuant to 12 Rule 4(c). Dkts. 65; and 77. Accordingly, the Clerk will issue the Second Amended Complaint’s 13 summons and serve them on behalf of Plaintiff.
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 RICHARD BREES, CASE NO. 3:18-cv-05691-RJB 9 Plaintiff, ORDER 10 v. 11 HMS GLOBAL MARITIME INC, et al., 12 Defendants. 13
THIS MATTER comes before the Court on review of the record. The Court is familiar 14 with the record and the materials herein, and it is fully advised. 15 For the reasons set forth below, Defendants Pierce County, Tiffany Garcia, and 16 MaryBeth DiCarlo should be granted leave to amend or withdraw their Motion to Dismiss for 17 Failure to State a Claim (Dkt. 51); and Defendants Steve Caputo, Dominick De Lango, HMS 18 Ferries Inc., HMS Global Maritime Inc., Derick Leenstra, Mylinda Miller, Tara Reynolds, and 19 Thomas Ripa (“HMS Defendants”) should be granted leave to amend or withdraw their CR 20 12(b)(6) Motion for Dismissal of Claims based on Alleged Violations of the Washington State 21 Constitution (Dkt. 80). If Defendants do not amend or withdraw their pending motions to dismiss 22 (Dkts. 51, and 80), they should brief the Court, in writing, as to whether their pending motions to 23 dismiss relate to the operative complaint (Second Amended Complaint, Dkt. 83) in this matter. 24 1 I. BACKGROUND 2 On June 20, 2019, Pierce County, Tiffany Garcia, Lauren Behm, and MaryBeth DiCarlo 3 (“County Defendants”) filed a motion to dismiss (Dkt. 51) and a supplemental brief (Dkt. 69). 4 On July 12, 2019, Plaintiff untimely responded in opposition to County Defendants’ 5 motion to dismiss. Dkt. 72.
6 On July 19, 2019, the Court ruled on and granted County Defendants’ motion to dismiss 7 as to Plaintiff’s 42 U.S.C. § 1983 claim; the Court ordered the Parties to show cause, in writing, 8 if any they have, why the Court should not decline to exercise supplemental jurisdiction over and 9 dismiss Plaintiff’s state law claims against County Defendants. Dkt. 74. 10 Plaintiff filed a response to the order to show cause (Dkt. 78) and County Defendants 11 filed a response to the order to show cause (Dkt. 79). 12 On August 20, 2019, the Court sua sponte issued an order granting plaintiff leave to file a 13 second amended complaint as to County Defendants only. Dkt. 81. The Court ordered that the 14 second amended complaint, if any, shall be served and filed no later than September 6, 2019. The
15 Court continued: “The Order on Pierce County Defendants’ CR 12(b) Motion to Dismiss (Dkt. 16 74) and rulings on Motions to Compel (Dkts. 62; and 63) are HELD IN ABEYANCE until the 17 Court has considered the sufficiency of Plaintiff’s second amended complaint, if any.” Dkt. 81, 18 at 2. 19 On September 3, 2019, Plaintiff filed a Second Amended Complaint. Dkt. 83. Among 20 other amendments, the Second Amended Complaint removed Lauren Behm as a named 21 Defendant. Compare Dkt. 39, at 3–6, with Dkt. 83, at 3–6. 22 On September 4, 2019, the County Defendants filed an Objection to Proposed Second 23 Amended Complaint, with three primary arguments related to the Second Amended Complaint. 24 1 Dkt. 86. First, County Defendants argue that the Second Amended Complaint deletes Defendant 2 Lauren Behm as a named Defendant, and she should be dismissed with prejudice. Dkt. 86, at 3. 3 Second, County Defendants argue that personal jurisdiction over Defendants, Tiffany Garcia, 4 Lauren Behm, and MaryBeth DiCarlo is absent because Plaintiff has not served any amended 5 complaints on them. Dkt. 86, at 3–4. Third, County Defendants argue that the Second Amended
6 Complaint fails to assert a federal or state claim against County Defendants. Dkt. 86, at 4–5. 7 On August 15, 2019, HMS Defendants filed a CR 12(b)(6) Motion for Dismissal of 8 Claims based on Alleged Violations of the Washington State Constitution. Dkt. 80. HMS 9 Defendants also filed a notice of errata replacing page one of their motion to dismiss. Dkt. 82. 10 On September 3, 2019, Plaintiff filed a response in opposition to HMS Defendants’ Motion to 11 Dismiss. Dkt. 84. Plaintiff also filed a Motion to Compel Discovery against the defendants. Dkt. 12 86. On September 6, 2019, HMS Defendants filed a reply. Dkt. 87. 13 Below, the Court first discusses this case’s unusual and confusing procedural history. 14 Second, the Court discusses the dismissal of Defendant Lauren Behm. Finally, the Court briefly
15 discusses personal jurisdiction and service of process. 16 II. DISCUSSION 17 A. Unusual and Confusing Procedural History 18 Although County Defendants’ motion to dismiss (Dkt. 51) and HMS Defendants’ motion 19 to dismiss (Dkt. 80) may have merit, they were drafted with respect to Plaintiff’s Amended 20 Complaint (Dkt. 39)—which is no longer the operative complaint in light of Plaintiff having 21 filed a Second Amended Complaint (Dkt. 83). This has produced an unusual and confusing 22 procedural history. 23 24 1 Therefore, in an effort to simplify issues emerging from the record, and to give the 2 defendants an opportunity to fully and fairly defend themselves against Plaintiff’s claims in the 3 Second Amended Complaint, Defendants Pierce County, Tiffany Garcia, and MaryBeth DiCarlo 4 should be granted leave to amend or withdraw their Motion to Dismiss for Failure to State a 5 Claim (Dkt. 51). HMS Defendants should be granted leave to amend or withdraw their CR
6 12(b)(6) Motion for Dismissal of Claims based on Alleged Violations of the Washington State 7 Constitution (Dkt. 80). If the defendants do not amend or withdraw their pending motions to 8 dismiss (Dkts. 51; and 80), they should brief the Court, in writing, as to whether their pending 9 motions to dismiss should be construed as relating to the operative complaint in this matter. Any 10 such amendments, notices of withdrawal, or briefs should be filed by September 27, 2019. Any 11 opposition papers to any such amendments, notices of withdrawal, or briefs shall be filed by 12 October 14, 2019; any reply papers shall be filed by October 18, 2019. 13 The Order on Pierce County Defendants’ CR 12(b) Motion to Dismiss (Dkt. 74) should 14 be stricken, and Plaintiff’s Motions to Compel against Pierce County (Dkts. 62; and 63) should
15 be renoted for September 27, 2019. 16 B. Dismissal of Defendant Lauren Behm 17 Defendants not named in an amended complaint are no longer defendants. See Ferdik v. 18 Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992). Here, Plaintiff deleted any mention of Lauren 19 Behm from the Second Amended Complaint, even where the complaint discusses the Pierce 20 County employees, e.g., Dkt. 83, at 13–15, and Plaintiff removed her from the list of named 21 defendants. Compare Dkt. 39, at 3–6, with Dkt. 83, at 3–6. It appears that Plaintiff has 22 abandoned his claims against Lauren Behm. 23 24 1 County Defendants argue that the Court should dismiss with prejudice Lauren Behm, but 2 she is no longer a party to the case. Dismissal is not appropriate or necessary. Therefore, to the 3 extent that County Defendants move to dismiss with prejudice Lauren Behm, that motion should 4 be denied as moot. 5 C. Personal Jurisdiction and Service of Process
6 County Defendants argue that there is no personal jurisdiction over Defendants Tiffany 7 Garcia and MaryBeth DiCarlo and Lauren Behm (“County Employees”) because Plaintiff fails to 8 show service of process on these Defendants. Dkt. 86, at 3–4. 9 Plaintiff filed four addressed summons forms with the Second Amended Complaint. 10 Dkts. 83-1–4. Two of them were addressed to MaryBeth DiCarlo and Tiffany Garcia. Dkts. 83- 11 3–4. The Court had previously granted Plaintiff’s request for assistance as to service pursuant to 12 Rule 4(c). Dkts. 65; and 77. Accordingly, the Clerk will issue the Second Amended Complaint’s 13 summons and serve them on behalf of Plaintiff. Therefore, at this time, the Court need not decide 14 matters of personal jurisdiction and service of process regarding Defendants Tiffany Garcia and
15 MaryBeth DiCarlo. 16 III. ORDER 17 THEREFORE, it is hereby ORDERED THAT: 18 • Defendants Pierce County, Tiffany Garcia, and MaryBeth DiCarlo are GRANTED 19 LEAVE to amend or withdraw their Motion to Dismiss for Failure to State a Claim 20 (Dkt. 51). Defendants Steve Caputo, Dominick De Lango, HMS Ferries Inc., HMS 21 Global Maritime Inc., Derick Leenstra, Mylinda Miller, Tara Reynolds, and Thomas 22 Ripa are GRANTED LEAVE to amend or withdraw their CR 12(b)(6) Motion for 23 Dismissal of Claims based on Alleged Violations of the Washington State 24 1 Constitution (Dkt. 80). If Defendants do not amend or withdraw their pending 2 motions to dismiss (Dkts. 51, and 80), they shall brief the Court, in writing, as to 3 whether their pending motions to dismiss should be construed as relating to the 4 operative complaint (Second Amended Complaint, Dkt. 83) in this matter. Any such 5 amendments, notices of withdrawal, or briefs shall be filed by September 27, 2019.
6 Any opposition papers to any such amendments, notices of withdrawal, or briefs 7 shall be filed by October 14, 2019; any reply papers shall be filed by October 18, 8 2019; 9 • The Order on Pierce County Defendants’ CR 12(b) Motion to Dismiss (Dkt. 74) is 10 STRICKEN; 11 • To the extent that Defendants Pierce County, Tiffany Garcia, and MaryBeth DiCarlo 12 move to dismiss with prejudice Lauren Behm, that motion is DENIED AS MOOT; 13 and 14 • The following motions are RENOTED for October 18, 2019:
15 o Defendants Pierce County, Tiffany Garcia, and MaryBeth DiCarlo’s Motion 16 to Dismiss for Failure to State a Claim (Dkt. 51). 17 o Plaintiff’s Motion to Compel Pierce County to Complete or Conduct 18 Investigation of Plaintiff’s Claim (Dkt. 62). 19 o Plaintiff’s Motion to Compel Pierce County Defendants to Produce Email 20 Requested Under Public Records Act (Dkt. 63). 21 o Defendants Steve Caputo, Dominick De Lango, HMS Ferries Inc., HMS 22 Global Maritime Inc., Derick Leenstra, Mylinda Miller, Tara Reynolds, and 23 24 1 Thomas Ripa’s CR 12(b)(6) Motion for Dismissal of Claims based on 2 Alleged Violations of the Washington State Constitution (Dkt. 80). 3 o Plaintiff’s Motion to Compel Discovery (Dkt. 85). 4 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 5 to any party appearing pro se at said party’s last known address.
6 Dated this 9th day of September, 2019. A 7
8 ROBERT J. BRYAN United States District Judge 9
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