United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS,
GRANTING PLAINTIFF LEAVE TO AMEND, AND DENYING
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Mike DeWitt and
Taylor Law Group's (“Defendants”) motion to
dismiss (Dkt. 22) and Plaintiff Andrea Johnson's
(“Johnson”) various motions (Dkts. 44-47, 53,
60-61, 65). The Court has considered the pleadings filed in
support of and in opposition to the motions and the remainder
of the file and hereby rules as follows:
December 12, 2017, Johnson filed a complaint against
Defendants asserting numerous causes of action. Dkt. 4. On
March 15, 2018, Defendants moved to dismiss. Dkt. 22. On
March 27 and April 12, 2018, Johnson responded. Dkts. 32, 49,
51. On April 13, 2018, Defendants replied. Dkt. 54.
April 11, 2018, Johnson filed two motions requesting approval
to serve Defendants by mail and two motions requesting the
entry of default. Dkts. 44-47. On April 13, 2018, Johnson
filed another motion requesting approval to serve by mail.
Dkt. 53. On April 19, 2018, Johnson filed two motions for
reconsideration requesting that the Court reconsider its
denial of her motions to appoint an attorney. Dkts. 60-61. On
April 27, 2018, Johnson filed a motion to extend initial
deadlines. Dkt. 65.
case arises out of a state court commissioner appointing a
litigation guardian ad litem for Johnson. Johnson appears to
claim that Defendant Dewitt's appointment resulted in
malpractice or breach of a fiduciary duty. As explained
below, Johnson fails to articulate exactly how
Defendant's short appointment resulted in legal harm.
Motion to Dismiss
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
case, Defendants argue that the Court should dismiss
Johnson's complaint because it fails to allege sufficient
facts to state a claim against either Defendant. Upon review
of the complaint, the Court agrees. It appears that Johnson
claims damages based on Defendants' malpractice or breach
of fiduciary duty. Johnson, however, fails to provide
sufficient factual allegations to state such a claim.
Therefore, the Court grants Defendants' motion to
next question is the appropriate remedy. Dismissal with
prejudice is proper only if it is absolutely clear that the
deficiencies of the complaint could not be cured by
amendment. Broughton v. Cutter Labs., 622 F.2d 458,
460 (9th Cir. 1980).
Defendants request that the Court dismiss Johnson's
complaint with prejudice, they have failed to establish that
it is absolutely clear that the deficiencies could not be
cured by amendment. Defendants' motion is based on the
lack of factual material and not doctrines of immunity or
statutes of limitations. These factual deficiencies could
possibly be cured by amendment. Accordingly, the Court grants
Johnson leave to amend her complaint.