Smith v. Phillips et al

Filing 52

ORDER denying Plaintiff Smith's 45 Motion for Separate Representation; ; striking Plaintiff Smith's 51 Motion to Amend Second Amended Complaint and 47 Motion to Modify Prescheduling Order; extending Discovery deadline to 11/19/2018 and Dispositive deadline to 12/19/2018, signed by Hon. Mary Alice Theiler.(SWT) (cc: Plaintiffs via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROBERT H. SMITH, et al.,
Plaintiffs,

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Case No. C17-1457-RSL-MAT

v.
ORDER DENYING PLAINTIFF
SMITH’S MOTION FOR SEPARATE
REPRESENTATION

RYAN W. PHILLIPS, et al.,
Defendants.

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This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before the

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Court at the present time on plaintiff Smith’s motion for separate representation, and on plaintiff

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Smith’s motions to modify the pretrial scheduling order and to amend his complaint. The Court,

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having considered the pending motions, and the balance of the record, hereby finds and ORDERS

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as follows:

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(1)

Plaintiff Smith’s motion for separate representation (Dkt. 45) is DENIED. Though

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plaintiff’s motion is not entirely clear, it appears that Mr. Smith is asking to have his portion of

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this action separated from that of his co-plaintiff James Phillips. In support of this request, Mr.

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Smith cites to the difficulties in obtaining Mr. Phillips’ signature so that all documents filed with

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the Court and served on defendants are properly executed. Mr. Smith also complains that he should
ORDER DENYING PLAINTIFF SMITH’S MOTION
FOR SEPARATE REPRESENTATION - 1

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not have to “take on” Mr. Phillips’ legal matters.

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When Mr. Smith originally filed this action in September 2017, he was the only named

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plaintiff. (Dkt. 1.) When Mr. Smith subsequently submitted his first amended complaint to the

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Court for review, he had added Mr. Phillips as a co-plaintiff even though he did not assert any

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claims in that pleading on behalf of Mr. Phillips. (See Dkt. 7.) Mr. Smith was thereafter advised

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that if Mr. Phillips wished to join this action, Mr. Phillips would have to submit an application to

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proceed in forma pauperis to indicate that intent and Mr. Phillips would also have to assert some

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viable cause of action against one or more of the named defendants. (See Dkt 9 at 2 n.1.)

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Mr. Smith and Mr. Phillips thereafter submitted a second amended complaint to the Court,

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one bearing both of their signatures, and a motion to add Mr. Phillips as a plaintiff. (Dkts. 11, 12.)

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Mr. Phillips also submitted an application to proceed in forma pauperis. (Dkt. 12-1.) Mr. Phillips’

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application to proceed in forma pauperis was granted, and the second amended complaint was

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subsequently served on some, but not all, of the defendants identified therein. (See Dkts. 16, 17,

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21 and 22.) Defendants filed answers to the second amended complaint, and a pretrial scheduling

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order was entered. (See Dkts. 35, 43, 44.) Shortly thereafter, Mr. Smith filed the instant motion

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to proceed separately. (Dkt. 45.)

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It appears from the record that Mr. Smith has at all times been the primary plaintiff in this

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action, and that Mr. Phillips has not participated in this action in any appreciable way since May

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2018. (See Dkts. 31, 34.) However, Mr. Smith voluntarily invited Mr. Phillips into this action

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and, though Mr. Smith is now apparently feeling constrained by some of the requirements

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associated with litigating this action with a co-plaintiff, Mr. Phillips will remain a plaintiff until he

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either asks to be dismissed from this action or defendants successfully move for his dismissal.

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(2)

Plaintiff Smith’s motions to modify the pretrial scheduling order and to amend his

ORDER DENYING PLAINTIFF SMITH’S MOTION
FOR SEPARATE REPRESENTATION - 2

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complaint (Dkts. 47, 51) are STRICKEN. The instant motions were signed only by Mr. Smith.

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While the Court understands that Mr. Smith has had difficulties obtaining Mr. Phillips’ signature,

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Mr. Phillips remains a plaintiff in this action and is therefore required to sign every written motion.

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See Fed. R. Civ. P. 11(a). Because the motions were not signed by Mr. Phillips, the motions are

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procedurally defective and are not properly before the Court.

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While the Court declines to formally entertain plaintiff Smith’s motion for modification of

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the pretrial scheduling order, the Court deems it appropriate, under the circumstances, to make

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slight modifications to the pretrial schedule to permit plaintiffs to file a proper motion for extension

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of time or to otherwise determine how they would like to proceed in this matter. Accordingly, the

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discovery deadline is extended to November 19, 2018, and the dispositive motion filing deadline

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is extended to December 19, 2018.

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(3)

The Clerk is directed to send copies of this Order to plaintiffs, to counsel for

defendants, and to the Honorable Robert S. Lasnik.
DATED this 17th day of October, 2018.

A

Mary Alice Theiler
United States Magistrate Judge

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ORDER DENYING PLAINTIFF SMITH’S MOTION
FOR SEPARATE REPRESENTATION - 3