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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOE PATRICK FLARITY, a marital CASE NO. 3:20-cv-06083-RJB 11 community, ORDER GRANTING 12 Plaintiff, DEFENDANT’S MOTION FOR v. JUDGMENT ON THE PLEADINGS 13 AND DENYING PLAINTIFF’S ARGONAUT INSURANCE COMPANY, MOTION FOR LEAVE TO FILE Defendant. 15 16 17 THIS MATTER comes before the Court on Defendant Argonaut Insurance Company’s 18 (“AIC”) Motion for Judgment on the Pleadings (Dkt. 72) and Plaintiff’s Motion for Leave to File 19 Amended Complaint (Dkt. 78). The Court has considered the pleadings filed regarding the 20 motions and the remaining file. Oral argument is unnecessary to fairly decide these motions. 21 I. FACTS AND BACKGROUND 22 Pro se Plaintiff, Joe Flarity, currently has two cases pending before the Court and at least 23 one related matter in Washington State Court. See Dkt. 1; Case No. 3:20-cv-6247-RJB; King 24 1 Cnty. Superior Ct. No. 20-2-16139-0-SEA. His claims relate to the tax assessment of his 2 property, which Pierce County assessed at a value that cased his taxes to increase. See id. This 3 matter more specifically relates to the procedures used to assess his property. Dkt. 31. The 4 valuation of his property caused his taxes to increase. Id. 5 Plaintiff alleges that Defendant Heather Orwig trespassed on his land to perform the
6 property assessment and that there is an ongoing conspiracy among all Defendants to deprive 7 him and others in Pierce County of their rights to privacy and equal protection. See id. Pierce 8 County and Pierce County officials previously filed a motion to dismiss (Dkt. 12), which the 9 Court granted (Dkt. 42). AIC, which is a private company, is the only defendant remaining in 10 this matter. Plaintiff’s claims against AIC are (1) Violation of Equal Protection and Due Process 11 brought pursuant to § 1983, and (2) “Civil Rights Tort Claims” because of an alleged agreement 12 with Pierce County to violate the civil rights Pierce County taxpayers. Dkt. 31. 13 In Plaintiff’s proposed amended complaint, he realleges the equal protection and due 14 process claims that were dismissed from his original complaint but frames them as being made
15 against the officials in their personal capacities. Dkt. 78-2. He also seeks to add two defendants 16 in their personal capacities, claims under the Racketeering Influenced and Corrupt Organizations 17 statute (“RICO”), 18 U.S.C. § 1961 et seq., and a claim of conspiracy to commit fraud against 18 AIC. Id. The essential allegations remain the same: that Pierce County and its officials violated 19 the Constitution and laws while assessing Plaintiff’s property, and that AIC, a private insurance 20 company, conspired in these violations. 21 The Court will first consider AIC’s Motion for Judgment on the Pleadings (Dkt. 72). 22 AIC argues Plaintiff’s claims should be dismissed because he brings them pursuant to 42 U.S.C. 23 24 1 § 1983, but AIC, as a private entity, cannot be liable under § 1983. Plaintiff does not oppose 2 AIC’s motion. 3 The Court will then consider Plaintiff’s Motion for Leave to File Amended Complaint 4 (Dkt. 78).
7 Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but 8 early enough not to delay trial—a party may move for judgment on the pleadings.” A Rule 12(c) 9 motion is “functionally identical” to a motion to dismiss brought pursuant to Rule 12(b)(6), with 10 the difference being timing. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 11 1989). Judgment under Rule 12(c) “is proper when the moving party clearly establishes on the 12 face of the pleadings that no material issue of fact remains to be solved and that it is entitled to 13 judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 14 1550 (9th Cir. 1989).
15 It is clear from the face of the pleadings that AIC is entitled to judgment as a matter of 16 law. Plaintiff’s claims against AIC depend on liability under section 1983. Only a state actor or 17 a person “acting under color of state law,” however, may be liable under section 1983. West v. 18 Atkins, 487 U.S. 42, 48 (1988). A private company does not necessarily become a “state actor” 19 by entering into a contract with the state. Life Ins. Co. of N. Amer. V. Reichardt, 591 F.2d 499, 20 501–02 (9th Cir. 1979). Instead, “a private entity may be considered a state actor ‘only if its 21 particular actions are inextricably intertwined with those of the government.’” Pasadena 22 Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (quoting Brunette v. 23 Humane Soc. of Ventura Cnty., 294 F.3d 1205, 1211 (9th Cir. 2002) (internal citation omitted). 24 1 Plaintiff does not allege sufficient facts to plausibly allege that AIC acted under the color 2 of state law. He merely states that AIC contracted with Pierce County and it “knew or should 3 have known” of civil rights violations. Dkt. 31 at 7. Taken as true and in the light most 4 favorable to Plaintiff, this is insufficient to establish an inextricable link between the alleged 5 conduct of AIC and Pierce County.
6 Furthermore, Plaintiff did not respond to AIC’s motion for judgment on the pleadings. 7 Pursuant to Local Civil Rule 7(b)(2), failure to respond “may be considered by the court as an 8 admission that the motion has merit.” 9 Accordingly, AIC’s Motion for Judgment on the Pleadings (Dkt. 72) should be granted. 11 “Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleading once 12 as a matter of course within certain time limits, or, in all other instances, with the court’s leave.” 13 Hall v. City of Los Angeles, 697 F.3d 1059, 1072 (9th Cir. 2012) (quoting Fed. R. Civ. P. 15(a)). 14 “The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Courts
15 often consider four factors to determine whether “justice so requires:” (1) undue delay; (2) bad 16 faith; (3) futility of amendment; and (4) prejudice to the opposing party. United States v. Pend 17 Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502 1511 (9th Cir. 1991). “The rule favoring liberality 18 in amendments to pleadings is particularly important for the pro se litigant.” Crowley v. 19 Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (leave should be granted “if it appears at all 20 possible that the plaintiff can correct the defect”). 21 Plaintiff’s proposed amended complaint remains fatally flawed.
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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOE PATRICK FLARITY, a marital CASE NO. 3:20-cv-06083-RJB 11 community, ORDER GRANTING 12 Plaintiff, DEFENDANT’S MOTION FOR v. JUDGMENT ON THE PLEADINGS 13 AND DENYING PLAINTIFF’S ARGONAUT INSURANCE COMPANY, MOTION FOR LEAVE TO FILE Defendant. 15 16 17 THIS MATTER comes before the Court on Defendant Argonaut Insurance Company’s 18 (“AIC”) Motion for Judgment on the Pleadings (Dkt. 72) and Plaintiff’s Motion for Leave to File 19 Amended Complaint (Dkt. 78). The Court has considered the pleadings filed regarding the 20 motions and the remaining file. Oral argument is unnecessary to fairly decide these motions. 21 I. FACTS AND BACKGROUND 22 Pro se Plaintiff, Joe Flarity, currently has two cases pending before the Court and at least 23 one related matter in Washington State Court. See Dkt. 1; Case No. 3:20-cv-6247-RJB; King 24 1 Cnty. Superior Ct. No. 20-2-16139-0-SEA. His claims relate to the tax assessment of his 2 property, which Pierce County assessed at a value that cased his taxes to increase. See id. This 3 matter more specifically relates to the procedures used to assess his property. Dkt. 31. The 4 valuation of his property caused his taxes to increase. Id. 5 Plaintiff alleges that Defendant Heather Orwig trespassed on his land to perform the
6 property assessment and that there is an ongoing conspiracy among all Defendants to deprive 7 him and others in Pierce County of their rights to privacy and equal protection. See id. Pierce 8 County and Pierce County officials previously filed a motion to dismiss (Dkt. 12), which the 9 Court granted (Dkt. 42). AIC, which is a private company, is the only defendant remaining in 10 this matter. Plaintiff’s claims against AIC are (1) Violation of Equal Protection and Due Process 11 brought pursuant to § 1983, and (2) “Civil Rights Tort Claims” because of an alleged agreement 12 with Pierce County to violate the civil rights Pierce County taxpayers. Dkt. 31. 13 In Plaintiff’s proposed amended complaint, he realleges the equal protection and due 14 process claims that were dismissed from his original complaint but frames them as being made
15 against the officials in their personal capacities. Dkt. 78-2. He also seeks to add two defendants 16 in their personal capacities, claims under the Racketeering Influenced and Corrupt Organizations 17 statute (“RICO”), 18 U.S.C. § 1961 et seq., and a claim of conspiracy to commit fraud against 18 AIC. Id. The essential allegations remain the same: that Pierce County and its officials violated 19 the Constitution and laws while assessing Plaintiff’s property, and that AIC, a private insurance 20 company, conspired in these violations. 21 The Court will first consider AIC’s Motion for Judgment on the Pleadings (Dkt. 72). 22 AIC argues Plaintiff’s claims should be dismissed because he brings them pursuant to 42 U.S.C. 23 24 1 § 1983, but AIC, as a private entity, cannot be liable under § 1983. Plaintiff does not oppose 2 AIC’s motion. 3 The Court will then consider Plaintiff’s Motion for Leave to File Amended Complaint 4 (Dkt. 78).
7 Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but 8 early enough not to delay trial—a party may move for judgment on the pleadings.” A Rule 12(c) 9 motion is “functionally identical” to a motion to dismiss brought pursuant to Rule 12(b)(6), with 10 the difference being timing. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 11 1989). Judgment under Rule 12(c) “is proper when the moving party clearly establishes on the 12 face of the pleadings that no material issue of fact remains to be solved and that it is entitled to 13 judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 14 1550 (9th Cir. 1989).
15 It is clear from the face of the pleadings that AIC is entitled to judgment as a matter of 16 law. Plaintiff’s claims against AIC depend on liability under section 1983. Only a state actor or 17 a person “acting under color of state law,” however, may be liable under section 1983. West v. 18 Atkins, 487 U.S. 42, 48 (1988). A private company does not necessarily become a “state actor” 19 by entering into a contract with the state. Life Ins. Co. of N. Amer. V. Reichardt, 591 F.2d 499, 20 501–02 (9th Cir. 1979). Instead, “a private entity may be considered a state actor ‘only if its 21 particular actions are inextricably intertwined with those of the government.’” Pasadena 22 Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (quoting Brunette v. 23 Humane Soc. of Ventura Cnty., 294 F.3d 1205, 1211 (9th Cir. 2002) (internal citation omitted). 24 1 Plaintiff does not allege sufficient facts to plausibly allege that AIC acted under the color 2 of state law. He merely states that AIC contracted with Pierce County and it “knew or should 3 have known” of civil rights violations. Dkt. 31 at 7. Taken as true and in the light most 4 favorable to Plaintiff, this is insufficient to establish an inextricable link between the alleged 5 conduct of AIC and Pierce County.
6 Furthermore, Plaintiff did not respond to AIC’s motion for judgment on the pleadings. 7 Pursuant to Local Civil Rule 7(b)(2), failure to respond “may be considered by the court as an 8 admission that the motion has merit.” 9 Accordingly, AIC’s Motion for Judgment on the Pleadings (Dkt. 72) should be granted. 11 “Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleading once 12 as a matter of course within certain time limits, or, in all other instances, with the court’s leave.” 13 Hall v. City of Los Angeles, 697 F.3d 1059, 1072 (9th Cir. 2012) (quoting Fed. R. Civ. P. 15(a)). 14 “The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Courts
15 often consider four factors to determine whether “justice so requires:” (1) undue delay; (2) bad 16 faith; (3) futility of amendment; and (4) prejudice to the opposing party. United States v. Pend 17 Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502 1511 (9th Cir. 1991). “The rule favoring liberality 18 in amendments to pleadings is particularly important for the pro se litigant.” Crowley v. 19 Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (leave should be granted “if it appears at all 20 possible that the plaintiff can correct the defect”). 21 Plaintiff’s proposed amended complaint remains fatally flawed. The Court previously 22 dismissed Plaintiff’s claims against Pierce County and Pierce County officials pursuant to 23 Federal Rule of Civil Procedure 12(b)(6) because Plaintiff failed to state a claim for which relief 24 1 could be granted. Dkt. 42. Plaintiff’s proposed amended complaint similarly fails to establish 2 that he is plausibly entitled to relief. Instead, he reiterates conclusory statements about his 3 entitlement to relief. For example, he realleges that various defendants deprived him of equal 4 protection of the law, but he does not include any facts to demonstrate how he was treated 5 differently than other similarly situated people. See Dkt. 78; Gerhart v. Lake Cnty., Mont., 627
6 F.3d 1013, 1022 (9th Cir. 2011) (a “class of one” plaintiff must allege that the defendants (1) 7 intentionally (2) treated plaintiff differently than other similarly situated people (3) without 8 rational basis). 9 Plaintiff also reiterates conclusory claims about a conspiracy. See e.g., Dkt. 78-2 at 6, 12, 10 and 13. Conclusory allegations of a “conspiracy,” however, are insufficient to state a claim. 11 Shucker v. Rockwood, 846 F.2d 1202, 1205 (9th Cir. 1988). 12 Plaintiff has had ample opportunity to allege, in “a short and plain statement,” that he is 13 plausibly entitled to relief, as required by Federal Rule of Civil Procedure 8(a). Allowing 14 amendment would cause undue delay and prejudice Defendants by requiring them to continue to
15 defend against claims that ultimately lack merit. 16 Therefore, Plaintiff’s motion for leave to amend the complaint (Dkt. 78), should be 17 denied. 19 Defendant AIC’s Motion for Judgment on the Pleadings (Dkt. 72) IS 20 GRANTED; 21 Plaintiff’s Motion for Leave to File Amended Complain (Dkt. 78) IS 22 DENIED; 23 This matter IS CLOSED. 24 2 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 3 to any party appearing pro se at said party’s last known address. 4 Dated this 11th day of May, 2021.
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6 ROBERT J. BRYAN 7 United States District Judge
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