Richfield et al v. FISH Food Banks of Pierce County

Filing 20

ORDER by Judge Benjamin H. Settle denying 13 Motion to strike and convert; granting 14 Motion to Vacate Judgment; denying 16 Motion for Leave to Proceed in forma pauperis; denying 17 Motion for Leave to Proceed in forma pauperis; Case reopened. Plaintiffs have until 11/7/2014 to file an amended complaint or case will be dismissed.(TG; cc mailed to plaintiffs)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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8 STEVEN E. RICHFIELD and CAROLYN
G. TRUMBULL,
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Plaintiffs,
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v.
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FISH FOOD BANKS OF PIERCE
12 COUNTY,
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CASE NO. C14-5516 BHS
ORDER GRANTING
PLAINTIFFS’ MOTION TO
VACATE AND DENYING
PLAINTIFFS’ OTHER MOTIONS

Defendant.

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This matter comes before the Court on Plaintiffs Steven Richfield and Carolyn

16 Trumbull’s (“Plaintiffs”) motion to strike and convert (Dkt. 13), motion to vacate (Dkt.
17 14), and motions to appeal in forma pauperis (Dkts. 16 & 17).
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On September 3, 2014, the Court granted Defendant’s motion to dismiss and

19 dismissed Plaintiffs’ complaint for failure to state a claim. Dkt. 11. On September 4,
20 2014, Plaintiffs filed a motion to strike Defendant’s reply brief and to convert
21 Defendant’s motion to dismiss to a motion for summary judgment. Dkt. 12. The motion
22 is untimely and irrelevant because the Court did not rely on matters outside the pleadings

ORDER - 1

1 when considering the motion to dismiss. Therefore, the Court DENIES Plaintiffs’
2 motion.
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On September 24, 2014, Plaintiffs filed a motion to vacate the judgment because

4 the Court failed to allow them an opportunity to amend their complaint. Dkt. 14. “A pro
5 se litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear
6 that the deficiencies of the complaint could not be cured by amendment.’” Noll v.
7 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). The Court agrees that it is not absolutely
8 clear that the identified deficiencies in Plaintiffs’ complaint could not be cured by any
9 amendment. Therefore, the Court GRANTS Plaintiffs’ motion to vacate the judgment.
10 Plaintiffs shall file an amended complaint no later than November 7, 2014. Failure to file
11 a complaint or show good cause why a complaint was not filed will result in
12 DISMISSAL without further order of the Court.
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With regard to Plaintiffs’ motions to appeal in forma pauperis, the Court DENIES

14 the motions as moot.
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IT IS SO ORDERED.

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Dated this 21st day of October, 2014.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 2