Nervik v. Washington State Department of Licensing et al

Filing 52

ORDER ON MOTION TO DISMISS, granting in part and denying in part 50 Motion to Dismiss. Defendants' motion to dismiss Plaintiff's claims in their entirety is GRANTED, and the case is DISMISSED WITHOUT PREJUDICE. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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GEORGE E. NERVIK,
Plaintiff,

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v.
WASHINGTON STATE DEPARTMENT
OF LICENSING; WASHINGTON
STATE OFFICE OF ADMINISTRATIVE
HEARINGS; WASHINGTON STATE
ATTORNEY GENERAL'S OFFICE;
ELIZABETH A. LUCE; FREDERICK
STEPHENS; CLEOTIS BORNER, JR.;
RALPH C. BIRKEDAHL; WILLIAM D.
SANTUFF; SYDNEY W. BECKETT;
ROBERT S. HAENKE; DENISE E.
GRAVES; LELAND A MALOTT;
JERALD R. ANDERSON; RICHARD A.
BECKER; JODY CAMPBELL;
MARTHA LANTZ; DIANE L.
MCDANIEL; ROBERT M. MCKENNA;
JAMES D. STANFORD; ARTHUR C.
WANG; LINDA MORAN; LINDA S.
SULLIVAN-COLGLAZIER; SUSAN R.
SACKETT-DANPULLO; SUSAN E.
THOMSEN; JERRY MACDONALD;
ANDREA ARCHER; JOHN DOES 1-99;

ORDER ON MOTION TO DISMISS- 1

CASE NO. C11-5727RJB
ORDER ON MOTION TO DISMISS

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JANE DOES 1-99;
Defendants.

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This matter comes before the court on Defendants’ motion to dismiss. Dkt. 50. The
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court has considered the relevant documents and the remainder of the file herein.
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PROCEDURAL HISTORY
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On September 12, 2011, Plaintiff filed a complaint claiming his civil rights had been
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violated under 42 U.S.C. § 1981, 42 U.S.C. § 1982, 42 U.S.C. § 1983, 42 U.S.C. § 1985, 42
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U.S.C. § 1986, and 42 U.S.C. § 1988. Dkt. 1. The allegations are difficult to understand, but the
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court here attempts to set forth the facts supporting his claims.
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Plaintiff’s complaint is based on events starting in 2000, when according to Plaintiff,
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personnel from the Washington State Department of Licensing Appraisal Program approached
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him about fixing or approving appraisals performed by an appraiser trainee. Dkt. 1 at 7.
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Apparently, the Department of Licensing took administrative action against Plaintiff in 2001.
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Dkt. 1 at 8. Plaintiff alleges he was subjected to “star chamber” proceedings as part of this
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process. Dkt. 1 at 9. According to Plaintiff’s complaint, his appeals in state court were
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successful. Dkt. 1 at 9. Plaintiff requests as relief $10,200,000.00. Dkt. 1 at 10.
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On January 23, 2012, Defendants filed a motion for a more definite statement under Fed.
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R. Civ. P. 12(e), claiming that Plaintiff fails to specify the actions of each Defendant in support
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of his claims, fails to notify each Defendant of the specific cause of action being asserted against
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that Defendant, and fails to include the approximate dates upon which most of the allegations
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occurred. Dkt. 16 at 3. In the motion for a more definite statement, Defendants requested that
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this court enter an order to strike Plaintiff’s complaint unless Plaintiff filed an amended
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complaint within 14 days of such an order. Dkt. 16 at 6.
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ORDER ON MOTION TO DISMISS- 2

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On February 10, 2012, Plaintiff responded to the motion for a more definite statement.

2 Dkt. 41. In his response, Plaintiff stated he did not object to filing an amended complaint, and
3 requested 45 days in which to do so. Dkt. 41 at 2. So that the Defendants would have the
4 opportunity to reply, the court re-noted the motion for a more definite statement (Dkt. 16) for
5 February 17, 2012. Dkt. 42.
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On February 14, 2012, Defendants replied. Dkt. 45. Defendants did not object to

7 Plaintiff’s request for additional time (45 days) to file his amended complaint. Dkt. 45 at 1.
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On February 21, 2012, the court entered an order granting Defendants’ motion for a more

9 definite statement pursuant to Fed. R. Civ. P. 8(a) and Fed. R. Civ. P. 12(e). Dkt. 48. In the
10 court’s order granting the motion for a more definite statement, the court ordered Plaintiff to file
11 an amended complaint by April 9, 2012, setting forth: (1) The specific acts of each individual
12 Defendant that Plaintiff relies upon to support the relief sought; (2) The approximate date when
13 such acts took place; and (3) The specific causes of action that Plaintiff asserts against each
14 individual Defendant. Dkt. 48 at 4.
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Plaintiff did not file an amended complaint by the deadline.

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On April 10, 2012, Defendants filed this motion to dismiss. Dkt. 50. Defendants ask that

17 the court dismiss Plaintiff’s claims with prejudice pursuant to Fed. R. Civ. P. 12(e) and 41(b).
18 Dkt. 50 at 2. The motion was noted for May 4, 2012.
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Plaintiff has not responded to Defendants’ motion to dismiss.

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On May 1, 2012, Defendants filed a reply memorandum in support of the motion to

21 dismiss. Dkt. 51. Defendants request that the court dismiss Plaintiff’s claims with prejudice,
22 because Plaintiff has not filed an amended complaint, nor has Plaintiff responded to Defendants’
23 motion to dismiss. Dkt. 51 at 1.
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ORDER ON MOTION TO DISMISS- 3

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LEGAL STANDARD

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Fed. R. Civ. P. 41(b) provides:

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If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision (b) and any dismissal not under
this rule--except one for lack of jurisdiction, improper venue, or failure to join a party
under Rule 19--operates as an adjudication on the merits.

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A complaint that fails to comply with Fed. R. Civ. P. 8(a) may be dismissed with

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7 prejudice pursuant to Fed. R. Civ. P. 41(b). E.g., Nevijel v. North Coast Life Ins. Co., 651 F.2d
8 671, 673-74 (9th Cir. 1981) (citations omitted). However, the rule also allows a court to dismiss
9 without prejudice. Fed. R. Civ. P. 41(b) (providing that [u]nless the dismissal order states
10 otherwise, a dismissal under this subdivision (b) . . . operates as an adjudication on the merits.
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DISCUSSION

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Plaintiff’s complaint (Dkt. 1) was deficient, which Plaintiff appears to acknowledge in his

14 response indicating he did not object to filing an amended complaint. See Dkt. 41. In the order
15 granting Defendants’ motion for a more definite statement, the court instructed Plaintiff that if he
16 did not file an amended complaint that is sufficient to state a claim by April 9, 2012, the court
17 may dismiss the case without prejudice. Dkt. 48 at 5.
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Plaintiff has had ample opportunity to file an amended complaint, and has failed to do so,

19 nor has Plaintiff filed a response to this motion. In accord with W.D. Wash. Local Civil Rule
20 7(b)(2), the court also deems the failure to respond to be an admission that the motion has merit.
21 For these reasons, the court should dismiss the case.
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ORDER ON MOTION TO DISMISS- 4

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ORDER

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Accordingly, it is hereby

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ORDERED that Defendants’ motion to dismiss (Dkt. 50) is GRANTED in part and

4 DENIED in part as follows:
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Defendants’ motion to dismiss Plaintiff’s claims in their entirety is GRANTED, and the

6 case is DISMISSED WITHOUT PREJUDICE.
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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

8 to any party appearing pro se at said party’s last known address.
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Dated this 4th day of May, 2012.

A

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ROBERT J. BRYAN
United States District Judge

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ORDER ON MOTION TO DISMISS- 5