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Johnson v. Dewitt

United States District Court, W.D. Washington, Tacoma

April 30, 2018

ANDREA JOHNSON, Plaintiff,
v.
MIKE DEWITT and TAYLOR LAW GROUP, Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, GRANTING PLAINTIFF LEAVE TO AMEND, AND DENYING PLAINTIFF'S MOTIONS

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.

         This 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:

         I. PROCEDURAL HISTORY

         On 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.

         On April 11, 2018, Johnson filed two motions requesting approval to serve Defendants by mail[1] 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.

         II. FACTUAL BACKGROUND

         This 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.

         III. DISCUSSION

         A. Motion to Dismiss

         Motions 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).

         In this 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 dismiss.

         The 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).

         Although 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.

         B. ...


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