United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's objections
(Dkt. No. 42) to the report and recommendation
(“R&R”) (Dkt. No. 41) of the Honorable Mary
Alice Theiler, United States Magistrate Judge. Having
thoroughly considered the relevant record, the Court finds
oral argument unnecessary and hereby OVERRULES
Plaintiff's objections and ADOPTS Judge Theiler's
R&R for the reasons explained herein.
15, 2018, Plaintiff filed this lawsuit in King County
Superior Court. (Dkt. No. 1-1 at 4.) After removing the case to
this Court, Defendant moved to dismiss Plaintiff's
complaint for failure to state a claim. (Dkt. No. 6.) The
Court granted Defendant's motion to dismiss and granted
leave to amend. (See Dkt. 10.) On August 7, 2018,
Plaintiff filed an amended complaint. (Dkt. No. 11.) On
August 21, 2018, Defendant filed a motion to dismiss the
amended complaint. (Dkt. No. 12.) On October 5, 2018, the
Court granted in part and denied in part Defendant's
motion to dismiss and denied Plaintiff further leave to
amend. (Dkt. No. 17.) On October 16, 2018, Defendant filed
its answer to the amended complaint. (Dkt. No. 18.)
failed to appear to a status conference on November 13, 2018,
and the Court issued an order to show cause why the case
should not be dismissed for failure to prosecute. (Dkt. Nos.
20 21.) Plaintiff failed to respond to the Court's order
to show cause. On November 27, 2018, the Court dismissed
Plaintiff's amended complaint without prejudice for
failure to prosecute and entered judgment. (Dkt. Nos. 23,
January 22, 2019, Plaintiff filed a one-page letter asking
the Court to vacate its judgment dismissing his amended
complaint. (Dkt. No. 25.) Plaintiff stated that “he
wasn't in the State of Washington on November 27th
2018.” (Id.) Plaintiff also stated that he has
been “battling a chronic disease for over a year and it
had intensified since Mid-October 2018 leaving [him]
physically incapable to respond in a timely matter to this
case and many other cases.” (Id.) Plaintiff
asked that “this matter be allowed to proceed with a
rescheduled status conference.” (Id.)
February 22, 2019, the Court denied Plaintiff's motion to
vacate, ruling that Plaintiff had not demonstrated excusable
neglect warranting vacation of the Court's judgment.
(Dkt. No. 28.) Plaintiff filed a motion for reconsideration,
which the Court denied. (Dkt. Nos. 29, 31.) Plaintiff
appealed the Court's orders dismissing his complaint, his
motion to vacate, and his motion for reconsideration, along
with the Court's judgment dismissing his complaint. (Dkt.
No. 34.) Plaintiff moved for leave to appeal in forma
pauperis (“IFP”). (Dkt. No. 35.) Judge
Theiler's R&R recommends denying Plaintiff's
request to proceed IFP, finding that Plaintiff's appeal
was not taken in good faith. (See Dkt. No. 41.)
Plaintiff filed objections to Judge Theiler's R&R
(Dkt. No. 42), which the Court now reviews.
R&R, Judge Theiler found that Plaintiff's appeal was
not taken in good faith because of the procedural history of
this case and Plaintiff's other related lawsuits. (Dkt.
No. 41 at 2.) Judge Theiler noted that Plaintiff had
“filed multiple nearly identical lawsuits and appeals
against different banks and financial institutions, ”
but that all of the complaints were based on
“unsupported allegations.” (Id. at 3.)
Judge Theiler additionally noted that Plaintiff's
“inconsistent IFP filings further bolsters the
conclusion this is not a good faith appeal by an indigent
asserts that Judge Theiler viewed his motion “in the
light most unfavorable to [him].” (Dkt. No. 42 at 2.)
Plaintiff argues that his indigency is a “settled
issue” because he was previously granted IFP status in
King County Superior Court. (Id.) He further argues
that he provided sufficient information in his IFP
application to demonstrate that he is indigent. (Id.
at 2-3.) Plaintiff also argues that his appeal of this
Court's prior orders is made in good faith because he has
a valid basis to challenge the Court's denial of his
motion to vacate. (Id. at 5-7.) The Court disagrees.
Theiler's recommendation is not based on whether
Plaintiff sufficiently pled that he is indigent. (See
generally Dkt. No. 41.) Therefore, Plaintiff's
objections regarding his indigency are not relevant to the
Court's evaluation of the R&R. Rather, Judge Theiler
concluded that Plaintiff's motion to appeal IFP should be
denied because the appeal was not taken in good faith.
(Id. at 1.) The Court agrees with Judge Theiler that
Plaintiff's litigation conduct demonstrates that his
appeal is not taken in good faith. Plaintiff initially filed
six nearly identical lawsuits alleging essentially identical
claims against six separate financial institutions. See
supra n.1. The Court dismissed several of
Plaintiff's complaints with prejudice after determining
that they were not meritorious, and dismissed the other
complaints without prejudice because Plaintiff failed to file
amended complaints, appear for status conferences, or
otherwise prosecute his claims. Compare McClellon v.
Wells Fargo Bank N.A., Case No. C18-0851-JCC, Dkt. No.
23 (W.D. Wash. 2018) (dismissing complaint with prejudice),
with McClellon v. OptionsHouse, Case No.
C18-0852-JCC, Dkt. No. 28 (W.D. Wash. 2018) (dismissing
complaint without prejudice).
Court went on to deny Plaintiff's motions to vacate its
judgments because Plaintiff provided nothing more than
conclusory reasons for why he failed to appear to court,
failed to amend his complaints, and failed to comply with the
Court's orders to show cause why his case should not be
dismissed. (See, e.g., Dkt. No. 25.) Plaintiff not
only appealed all of the Court's orders dismissing his
complaints, but then re-filed three of his prior lawsuits.
See supra n.1. Viewing Plaintiff's litigation
conduct in total, the Court finds that Plaintiff's appeal
of the Court's order is not taken in good faith.
Plaintiff has not demonstrated a good faith basis to appeal
the Court's order denying his motion to vacate its prior
foregoing reasons, the Court OVERRULES Plaintiff's
objections (Dkt. No. 42) and ADOPTS Judge Theiler's
report and recommendation (Dkt. No. 41). The Court certifies
that Plaintiff's appeal is not taken in good faith and
his motion to appeal in forma pauperis is DENIED.
The Clerk is DIRECTED to send a ...