Michelle v. South Correctional Entity et al

Filing 31

ORDER: The court GRANTS Mr. Michelle's unopposed motion to dismiss the SCORE Defendants from this action without prejudice and to file a second amended complaint (Dkt. # 28 ). Mr. Michelle shall file his second amended complaint within five (5) court days of the filing date of this order. Signed by Judge James L. Robart. (LH)

Case 2:21-cv-00140-JLR Document 31 Filed 09/08/21 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DUSTIN MICHELLE,

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v.

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ORDER

SOUTH CORRECTIONAL
ENTITY, et al.,

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Plaintiff,

CASE NO. C21-0140JLR

Defendants.
Before the court is Plaintiff Dustin Michelle’s motion to temporarily dismiss
Defendants South Correctional Entity (“SCORE”) and SCORE John Does 1-10
(collectively, “the SCORE Defendants”) from this action without prejudice and for leave
to file a second amended complaint. (Mot. (Dkt. # 28); see Bingham Decl. (Dkt. # 29) ¶¶
4-5, Ex. A (“Prop. 2d Am. Compl.”).) None of the Defendants have responded to Mr.

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ORDER - 1

Case 2:21-cv-00140-JLR Document 31 Filed 09/08/21 Page 2 of 3

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Michelle’s motion. 1 (See generally Dkt.) The court has considered the motion, all

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submissions filed in support of the motion, the relevant portions of the record, and the

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applicable law. Being fully advised, the court GRANTS Mr. Michelle’s motion.

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Once an opposing party serves either an answer or a motion for summary

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judgment, the plaintiff may voluntarily dismiss his claims only by stipulation between all

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the parties who have appeared or by “court order, on terms that the court considers

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proper.” Fed. R. Civ. P. 41(a). A party may also amend its pleading once as a matter of

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course within 21 days after serving it, or “if the pleading is one to which a responsive

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pleading is required, 21 days after service of a responsive pleading or 21 days after

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service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P.

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15(a)(1). Otherwise, “a party may amend its pleading only with the opposing party’s

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written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should freely

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give leave when justice so requires.” Id.

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Here, Mr. Michelle contends that dismissal of the SCORE Defendants is

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necessary to ensure compliance with RCW 4.96.020, which forbids a plaintiff from

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bringing claims for damages against a local government entity until 60 days after filing

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a tort claim form with the agent designated to accept such claims. (Mot. at 1-2.) Mr.

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Michelle’s attorney states that he believed he properly filed his tort claim form by serving

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it on SCORE’s counsel but later learned that SCORE did not believe service on its

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“[I]f a party fails to file papers in opposition to a motion, such failure may be considered by
the court as an admission that the motion has merit.” Local Rules W.D. Wash. LCR 7(b)(2).

ORDER - 2

Case 2:21-cv-00140-JLR Document 31 Filed 09/08/21 Page 3 of 3

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counsel was valid under RCW 4.96.020. (Bingham Decl. ¶¶ 2-3.) Accordingly, on May

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10, 2021, Mr. Michelle’s attorney filed another copy of the tort claim form on SCORE’s

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designated agent to ensure compliance with the statute. (Id. ¶ 3.) Mr. Michelle’s

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proposed second amended complaint adds allegations related to service of the tort claim

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form. (See Prop. 2d Am. Compl. ¶¶ 133-35.)

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The court GRANTS Mr. Michelle’s unopposed motion to dismiss the SCORE

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Defendants from this action without prejudice and to file a second amended complaint

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(Dkt. # 28). Mr. Michelle shall file his second amended complaint within five (5) court

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days of the filing date of this order. In granting Mr. Michelle’s motion, the court takes no

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position regarding whether dismissal of his claims and amendment of his complaint are

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sufficient to meet the requirements of RCW 4.96.020.

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Dated this 8th day of September, 2021.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 3