McClintock v. United States of America

• Court: District Court, W.D. Washington
• Decided: July 13, 2020
• Docket: 3:19-cv-05835
• Status: Unknown

Opinion

1 The Honorable Benjamin H. Settle

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA

10 RAMONA MCCLINTOCK, CASE No. 3:19-cv-05835-BHS 11 Plaintiff. STIPULATED MOTION TO AMEND 12 COMPLAINT TO ADD DEFENDANT AND v. ORDER 13 UNITED STATES OF AMERICA; NOTED FOR CONSIDERATION: 14 CATHLEEN JENSEN and JOHN DOE July 10, 2020 15 JENSEN,

16 Defendants. 17 18

19 COMES NOW, Plaintiff, by and through her counsel, and the Defendant United States of 20 America, by and through their counsel, pursuant to Local Rule 10(g), and hereby jointly stipulate 21 and move to amend Plaintiff’s complaint for damages to add a party, the estate for Cathleen Jensen. 22 The parties seek to add the estate of Cathleen Jensen as Ms. Jensen as an involved party in the 23 subject collision that forms the subject of this case. Ms. Jensen, a former co-defendant has 24 25 subsequently passed away and was not alive at the time that plaintiff served her through the 26 Washington State Secretary of State. The parties seek to properly name and include the correct 27 party in these proceedings. 1 The parties have consulted on this matter, including the counsel representing Ms. Jensen’s 2 estate, and all parties agree to amending the complaint to name the estate of Cathleen Jensen as a 3 co-defendant in the Plaintiff’s November 30, 2017 motor vehicle collision. 4 The Plaintiff may amend her complaint with the opposing party’s written consent. Fed. R. 5 Civ. P 15. Leave to amend pleading should be freely given and should be denied only where 6 amendment would be futile, where it is sought in bad faith, or where it would prejudice opposing 7 8 party. See AIU Ins. Co. v. Mitsui O.S.K. Lines, Ltd., 897 F. Supp. 724, 726 (S.D.N.Y. 1995). Rule 9 governing leave to amend does not prescribe any time limit within which a party may apply to 10 the district court for such leave, and thus, generally, delay alone is not a sufficient reason for 11 denying leave to amend, if no prejudice to the non-moving party is found. Triad at Jeffersonville 12 I, LLC v. Leavitt, 563 F. Supp. 2d 1, 11 (D.D.C. 2008). 13 The parties submit that good cause exists to permit amending Plaintiff’s complaint. 14 Defendant Cathleen Jensen, was an involved party in Plaintiff’s November 30, 2017 motor 15 16 vehicle collision. Plaintiff filed suit on September 6, 2019. Dkt. 1. Plaintiff attempted to 17 personally serve Defendant Jensen and was unsuccessful. See Affidavit of Jared D. Stueckle in 18 Support of Due Diligence. Dkts. 11-13. Unable to personally serve Defendant Jensen, Plaintiff 19 effected service via the Washington State Secretary of State. Dkt. 10, 14. Unbeknownst to the 20 Plaintiff, Ms. Jensen passed away on July 28, 20191. 21 Counsel for Plaintiff and United States was contacted by an attorney representing Ms. 22 23 Jensen estate, Ms. Debra Akhbari. See, Declaration of Jonathan J. Lee. Ms. Akhbari informed the 24 parties that she would be taking over representation of Ms. Jensen from Ms. Sara Sato and 25 verified that Ms. Jensen had in fact passed away. Id. In light of the new information, the parties 26 27 1 https://hillfhpuyallup.com/tribute/details/143861/Cathleen-Jensen/obituary.html 1 agreed that prudence would dictate that Ms. Jensen should be properly substituted by Ms. 2 Jensen’s estate. Id. 3 Probate for Ms. Jensen’s estate was opened in Pierce County on June 17, 2020. Michael 4 Jensen, widow of the deceased defendant was appointed personal representative on June 26, 5 2020. Id. 6 Given the amendment of the discovery schedule and trial date, no parties will be 7 8 prejudiced by an amendment to include Ms. Jensen’s estate. Based on the foregoing, the parties 9 agree to include the estate of Cathleen Jensen as a Co-defendant. 10 As Defendant Jensen’s counsel has already appeared, aware of the pending motion, and is 11 also aware of the present court deadlines, a 14 day deadline to answer the amended complaint 12 would be prudent and adequate. 13 A proposed amended complaint is attached herein as Exhibit A. 14 15 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

16 17 DATED: July 10, 2020 s/Jonathan Lee JON LEE, WSBA No. 42505 18 1408 140th PLACE NE 19 Bellevue, Washington 98007 Telephone: 206-285-1743 20 Email: jon@premierlawgroup.com Attorney for Plaintiff 21

22 DATED: July 10, 2020 s/Heather C. Costanzo HEATHER C. COSTANZO, FL #37378 23 Assistant United States Attorneys United States Attorney’s Office 24 700 Stewart Street, Suite 5220 Seattle, WA 98101-1271 25 Phone: (206) 553-7970 Email: heather.costanzo@usdoj.gov 26 Attorney for Defendant United States of America 27 1 ORDER 2

3 1) Plaintiff may amend her complaint to include Defendant Michael Jensen, 4 Administrator of Estate of Cathleen Jensen as a co-defendant and; 5 2) Defendant Jensen shall answer the amended complaint within 14 days of service.

6 Dated this 13th day of July, 2020. 7

9 A 10 11 BENJAMIN H. SETTLE 12 United States District Judge

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