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Smith v. Phillips, C17-1457-RSL-MAT. (2018)

Court: District Court, D. Washington Number: infdco20181024g75 Visitors: 2
Filed: Oct. 17, 2018
Latest Update: Oct. 17, 2018
Summary: ORDER DENYING PLAINTIFF SMITH'S MOTION FOR SEPARATE REPRESENTATION MARY ALICE THEILER , Magistrate Judge . This is a civil rights action brought under 42 U.S.C. 1983. This matter comes before the Court at the present time on plaintiff Smith's motion for separate representation, and on plaintiff Smith's motions to modify the pretrial scheduling order and to amend his complaint. The Court, having considered the pending motions, and the balance of the record, hereby finds and ORDERS as follo
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ORDER DENYING PLAINTIFF SMITH'S MOTION FOR SEPARATE REPRESENTATION

This is a civil rights action brought under 42 U.S.C. § 1983. This matter comes before the Court at the present time on plaintiff Smith's motion for separate representation, and on plaintiff Smith's motions to modify the pretrial scheduling order and to amend his complaint. The Court, having considered the pending motions, and the balance of the record, hereby finds and ORDERS as follows:

(1) Plaintiff Smith's motion for separate representation (Dkt. 45) is DENIED. Though plaintiff's motion is not entirely clear, it appears that Mr. Smith is asking to have his portion of this action separated from that of his co-plaintiff James Phillips. In support of this request, Mr. Smith cites to the difficulties in obtaining Mr. Phillips' signature so that all documents filed with the Court and served on defendants are properly executed. Mr. Smith also complains that he should not have to "take on" Mr. Phillips' legal matters.

When Mr. Smith originally filed this action in September 2017, he was the only named plaintiff. (Dkt. 1.) When Mr. Smith subsequently submitted his first amended complaint to the Court for review, he had added Mr. Phillips as a co-plaintiff even though he did not assert any claims in that pleading on behalf of Mr. Phillips. (See Dkt. 7.) Mr. Smith was thereafter advised that if Mr. Phillips wished to join this action, Mr. Phillips would have to submit an application to proceed in forma pauperis to indicate that intent and Mr. Phillips would also have to assert some viable cause of action against one or more of the named defendants. (See Dkt 9 at 2 n.1.)

Mr. Smith and Mr. Phillips thereafter submitted a second amended complaint to the Court, one bearing both of their signatures, and a motion to add Mr. Phillips as a plaintiff. (Dkts. 11, 12.) Mr. Phillips also submitted an application to proceed in forma pauperis. (Dkt. 12-1.) Mr. Phillips' application to proceed in forma pauperis was granted, and the second amended complaint was subsequently served on some, but not all, of the defendants identified therein. (See Dkts. 16, 17, 21 and 22.) Defendants filed answers to the second amended complaint, and a pretrial scheduling order was entered. (See Dkts. 35, 43, 44.) Shortly thereafter, Mr. Smith filed the instant motion to proceed separately. (Dkt. 45.)

It appears from the record that Mr. Smith has at all times been the primary plaintiff in this action, and that Mr. Phillips has not participated in this action in any appreciable way since May 2018. (See Dkts. 31, 34.) However, Mr. Smith voluntarily invited Mr. Phillips into this action and, though Mr. Smith is now apparently feeling constrained by some of the requirements associated with litigating this action with a co-plaintiff, Mr. Phillips will remain a plaintiff until he either asks to be dismissed from this action or defendants successfully move for his dismissal.

(2) Plaintiff Smith's motions to modify the pretrial scheduling order and to amend his complaint (Dkts. 47, 51) are STRICKEN. The instant motions were signed only by Mr. Smith. While the Court understands that Mr. Smith has had difficulties obtaining Mr. Phillips' signature, Mr. Phillips remains a plaintiff in this action and is therefore required to sign every written motion. See Fed. R. Civ. P. 11(a). Because the motions were not signed by Mr. Phillips, the motions are procedurally defective and are not properly before the Court.

While the Court declines to formally entertain plaintiff Smith's motion for modification of the pretrial scheduling order, the Court deems it appropriate, under the circumstances, to make slight modifications to the pretrial schedule to permit plaintiffs to file a proper motion for extension of time or to otherwise determine how they would like to proceed in this matter. Accordingly, the discovery deadline is extended to November 19, 2018, and the dispositive motion filing deadline is extended to December 19, 2018.

(3) The Clerk is directed to send copies of this Order to plaintiffs, to counsel for defendants, and to the Honorable Robert S. Lasnik.

Source:  Leagle

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