Richard v. Murray et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Wash.August 9, 2016

CITY OF SEATTLE’S RULE 12(b)(6) MOTION TO DISMISS - 1 PETER S. HOLMES Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Honorable Ricardo S. Martinez UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Marguerite Richard, Plaintiff, vs. Mayor Edward Murray, et al, Defendants. ) ) ) ) ) ) ) ) ) ) ) No. C16-1009-RSM CITY OF SEATTLE’S RULE 12(b)(6) MOTION TO DISMISS NOTE ON MOTION CALENDAR: Friday, September 9, 2016__________ Defendants respectfully request that this Court grant the City of Seattle’s Rule 12(b)(6) motion. Ms. Richard’s complaint in this matter does not contain the essential elements of any viable claim against the City. Dismissal is proper under these circumstances. I RELEVANT FACTS Ms. Richard filed a handwritten complaint in this case captioned “Complaint for stopping not legal trespassing from Seattle Executive Branch which does not give us right to go to Legislative branch in Seattle City Council Chamber for right to free speech.” See Plaintiff’s Complaint. At times, the Complaint references legal terminology that conceivably could be part of a legal theory, such as “discrimination” and “right to free speech.” However, none of these references include facts or a discernible claim against the named defendants. In multiple places, Case 2:16-cv-01009-RSM Document 11 Filed 08/09/16 Page 1 of 5 CITY OF SEATTLE’S RULE 12(b)(6) MOTION TO DISMISS - 2 PETER S. HOLMES Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 the Complaint contains ambiguous references to “trespasses” but does not provide any further factual basis to discern who may have “trespassed” the plaintiffs, on what specific dates any “trespass” event occurred, or where they occurred. It is also unclear whether Plaintiff is referencing criminal trespasses, or some other action that allegedly caused her harm. II. LEGAL ARGUMENT A. Motion to Dismiss Standard. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007). While a complaint subject to a Rule 12(b)(6) motion to dismiss “does not need detailed factual allegations,” it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 500 U.S. at 570). A complaint lacks “facial plausibility” if it merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). When a complaint fails to adequately state a claim, such deficiency should be “exposed at the point of minimum expenditure of time and money by the parties and the court.” Twombly, 500 U.S. at 558. B. Plaintiff’s Complaint Fails to State Any Discernible Claim Against Defendants. Plaintiff’s Complaint in this matter does no more than cite legal terminology along with a bare assertion of “discrimination.” Nowhere in the body of the Complaint are individual employees named or further described as connected with any actionable conduct, other than a vague reference to the “Seattle Executive Branch.” The only reference to specific individuals is Case 2:16-cv-01009-RSM Document 11 Filed 08/09/16 Page 2 of 5 CITY OF SEATTLE’S RULE 12(b)(6) MOTION TO DISMISS - 3 PETER S. HOLMES Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 contained in the last sentence of the complaint where Mayor Edward Murray and Bruce Harrell, President of the City Council are mentioned in the context of some type of alleged “conspiracy.” Moreover, no specific dates of potentially actionable conduct are set forth, other than one reference to “discrimination for the last couple of years.” In sum, the Complaint fails to include the essential elements of any conceivable legal theory that allegedly would justify recovery. This is not a complaint that gives “the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. at 555. Under these facts, it would be improper to proceed with this case and require the City to defend this action. In fact, in granting Plaintiff’s Application to Proceed in Forma Pauperis, United States Magistrate Judge Theiler recommended review of this case under 28 U.S.C.§ 1915(e)(2)(B).1 III CONCLUSION For the foregoing reasons, the City respectfully requests that this Court dismiss this case without prejudice. // // // // // // // 1 In relevant part, 28 U.S.C. § 1915(e)(2)(B) states that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal: (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. Case 2:16-cv-01009-RSM Document 11 Filed 08/09/16 Page 3 of 5 CITY OF SEATTLE’S RULE 12(b)(6) MOTION TO DISMISS - 4 PETER S. HOLMES Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DATED this 9th day of August, 2016. PETER S. HOLMES Seattle City Attorney By: /s/Gary T. Smith WSBA #29718 Assistant City Attorney Seattle City Attorney’s Office 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 Phone: (206) 733-9318 Fax: (206) 684-8284 E-mail: gary.smith@seattle.gov Attorneys for Defendants Case 2:16-cv-01009-RSM Document 11 Filed 08/09/16 Page 4 of 5 CITY OF SEATTLE’S RULE 12(b)(6) MOTION TO DISMISS - 5 PETER S. HOLMES Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CERTIFICATE OF SERVICE I hereby certify that on August 9, 2016, I electronically filed this 12(b)(6) MOTION TO DISMISS with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the below-listed: Marguerite Richard: onehotpearl@hotmail.com On August 9, 2016, I caused to be delivered by United States Postal Service, postage prepaid, addressed to: Marguerite Richard 533 3rd Ave West #409 Seattle, WA 98119 DATED this 9th day of August, 2016, at Seattle, Washington. By: /s/Gary T. Smith Gary T. Smith, WSBA #29178 gary.smith@seattle.gov Case 2:16-cv-01009-RSM Document 11 Filed 08/09/16 Page 5 of 5 ORDER ON DEFENDANT’S 12(b)(6) MOTION TO DISMISS - 1 PETER S. HOLMES Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Honorable Ricardo S. Martinez UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Marguerite Richard, Plaintiff, vs. Mayor Edward Murray, et al, Defendants. ) ) ) ) ) ) ) ) ) ) ) No. C16-1009-RSM PROPOSED ORDER ON DEFENDANT’S 12(b)(6) MOTION TO DISMISS THIS MATTER having come before the Court on Defendant’s 12(b)(6) Motion to Dismiss for Failure to State a Claim, and the Court having read and considered the pleadings and documents filed herein: Now therefore, IT IS HEREBY ORDERED, Plaintiff’s claims against Mayor Edward Murray, City of Seattle are DISMISSED for failure to state a claim upon which relief can be granted. Case 2:16-cv-01009-RSM Document 11-1 Filed 08/09/16 Page 1 of 2 ORDER ON DEFENDANT’S 12(b)(6) MOTION TO DISMISS - 2 PETER S. HOLMES Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DATED, ___________________, 2016 ___________________________ Honorable Ricardo S. Martinez Presented By: PETER S. HOLMES Seattle City Attorney /s/ Gary T. Smith Gary T. Smith, WSBA #29718 Assistant City Attorney Attorneys for Defendant Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 Tel: (206) 733-9318 gary.smith@seattle.gov Approved as to form; notice of presentation waived: By: _____________________________ Marguerite Richard 533 3rd Ave W #409 Seattle, WA 98119-3992 Case 2:16-cv-01009-RSM Document 11-1 Filed 08/09/16 Page 2 of 2