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Brees v. HMS Global Maritime Inc.

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

September 9, 2019

RICHARD BREES, Plaintiff,
v.
HMS GLOBAL MARITIME INC, et al., Defendants.

          ORDER

          ROBERT J. BRYAN, UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on review of the record. The Court is familiar with the record and the materials herein, and it is fully advised.

         For the reasons set forth below, Defendants Pierce County, Tiffany Garcia, and MaryBeth DiCarlo should be granted leave to amend or withdraw their Motion to Dismiss for Failure to State a Claim (Dkt. 51); and Defendants Steve Caputo, Dominick De Lango, HMS Ferries Inc., HMS Global Maritime Inc., Derick Leenstra, Mylinda Miller, Tara Reynolds, and Thomas Ripa (“HMS Defendants”) should be granted leave to amend or withdraw their CR 12(b)(6) Motion for Dismissal of Claims based on Alleged Violations of the Washington State Constitution (Dkt. 80). If Defendants do not amend or withdraw their pending motions to dismiss (Dkts. 51, and 80), they should brief the Court, in writing, as to whether their pending motions to dismiss relate to the operative complaint (Second Amended Complaint, Dkt. 83) in this matter.

         I. BACKGROUND

         On June 20, 2019, Pierce County, Tiffany Garcia, Lauren Behm, and MaryBeth DiCarlo (“County Defendants”) filed a motion to dismiss (Dkt. 51) and a supplemental brief (Dkt. 69).

         On July 12, 2019, Plaintiff untimely responded in opposition to County Defendants' motion to dismiss. Dkt. 72.

         On July 19, 2019, the Court ruled on and granted County Defendants' motion to dismiss as to Plaintiff's 42 U.S.C. § 1983 claim; the Court ordered the Parties to show cause, in writing, if any they have, why the Court should not decline to exercise supplemental jurisdiction over and dismiss Plaintiff's state law claims against County Defendants. Dkt. 74.

         Plaintiff filed a response to the order to show cause (Dkt. 78) and County Defendants filed a response to the order to show cause (Dkt. 79).

         On August 20, 2019, the Court sua sponte issued an order granting plaintiff leave to file a second amended complaint as to County Defendants only. Dkt. 81. The Court ordered that the second amended complaint, if any, shall be served and filed no later than September 6, 2019. The Court continued: “The Order on Pierce County Defendants' CR 12(b) Motion to Dismiss (Dkt. 74) and rulings on Motions to Compel (Dkts. 62; and 63) are HELD IN ABEYANCE until the Court has considered the sufficiency of Plaintiff's second amended complaint, if any.” Dkt. 81, at 2.

         On September 3, 2019, Plaintiff filed a Second Amended Complaint. Dkt. 83. Among other amendments, the Second Amended Complaint removed Lauren Behm as a named Defendant. Compare Dkt. 39, at 3-6, with Dkt. 83, at 3-6.

         On September 4, 2019, the County Defendants filed an Objection to Proposed Second Amended Complaint, with three primary arguments related to the Second Amended Complaint. Dkt. 86. First, County Defendants argue that the Second Amended Complaint deletes Defendant Lauren Behm as a named Defendant, and she should be dismissed with prejudice. Dkt. 86, at 3. Second, County Defendants argue that personal jurisdiction over Defendants, Tiffany Garcia, Lauren Behm, and MaryBeth DiCarlo is absent because Plaintiff has not served any amended complaints on them. Dkt. 86, at 3-4. Third, County Defendants argue that the Second Amended Complaint fails to assert a federal or state claim against County Defendants. Dkt. 86, at 4-5.

         On August 15, 2019, HMS Defendants filed a CR 12(b)(6) Motion for Dismissal of Claims based on Alleged Violations of the Washington State Constitution. Dkt. 80. HMS Defendants also filed a notice of errata replacing page one of their motion to dismiss. Dkt. 82. On September 3, 2019, Plaintiff filed a response in opposition to HMS Defendants' Motion to Dismiss. Dkt. 84. Plaintiff also filed a Motion to Compel Discovery against the defendants. Dkt. 86. On September 6, 2019, HMS Defendants filed a reply. Dkt. 87.

         Below, the Court first discusses this case's unusual and confusing procedural history. Second, the Court discusses the dismissal of Defendant Lauren Behm. Finally, the Court briefly discusses personal jurisdiction and service of process.

         II. ...


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