Etherage et al v. West et al

Filing 25

ORDER by Judge Benjamin H Settle granting in part and denying in part 23 Motion to Clarify; United States of America added as defendant. Jane Doe West and Johnny L West terminated. (TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOSEPH ETHERAGE and KIRSTIN
ETHERAGE, and the marital community
thereof,
Plaintiffs,

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CASE NO. C11-5091BHS

v.
JOHNNY L. WEST and “JANE DOE”
WEST, and the marital community
thereof,

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ORDER SUBSTITUTING
DEFENDANT, VACATING IN
PART PREVIOUS ORDER,
AND GRANTING IN PART
ETHERAGE’S MOTION TO
CLARIFY

Defendants.

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This matter comes before the Court on Plaintiffs Joseph and Kirstin Etherage’s

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(“Etherage”) Motion to Clarify. Dkt. 23. The Government does not oppose the motion.

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Dkt. 24.

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Etherage requests clarification on two issues in the Court’s recent order granting

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their motion to compel (Dkt. 22): (1) whether Defendant West or the Government is

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required to respond, and (2) whether the responding party is required to respond to

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Etherage’s Requests for Production 16 &17 or 14 & 15.

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First, West is still the named Defendant in this action. Although the Government

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did file a motion to amend the caption and substitute the United States of America for

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West (Dkt. 6), the parties requested that the Court terminate that motion (Dkt. 10).

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Moreover, the parties’ caption remains Etherage v. West. The Court, however, will sua

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ORDER - 1

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sponte substitute the United States of America pursuant to 28 U.S.C. § 2679(d)(2) (“the

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United States shall be substituted as the party defendant”). Therefore, the caption in this

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action shall reflect this substitution.

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With regard to the Court’s order granting the motion to compel, the Court requires

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the Government to respond to the discovery requests because the proceeding is an action

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against the Government upon certification of the Attorney General or, for the purposes

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of this action, United States Attorney Jenny Durkin, and the certification was filed

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January 31, 2011.

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Second, Etherage asserts that the Court required responses to requests for
production that dealt with the chain of command issue instead of the scope of
employment issue. The Court agrees and hereby vacates that portion of the order. The

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Court also grants Etherage’s motion as to their Requests for Production 14 & 15.
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IT IS SO ORDERED.
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DATED this 6th day of June, 2011.

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A

BENJAMIN H. SETTLE
United States District Judge

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ORDER - 2