Jenkins v. Puckett & Redford PLLC
| Decision Date | 03 August 2020 |
| Docket Number | CASE NO. 2:19-cv-01550-BJR |
| Parties | GEORGE JENKINS, an individual, Plaintiff, v. PUCKETT AND REDFORD PLLC, RANDY REDFORD, RYAN WEATHERSTONE, LAUREN NOVACK, and GLEIBERMAN PROPERTIES, INC., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Before the Court are two Motions to Dismiss this action involving Plaintiff George Jenkins' eviction from an apartment in Woodinville, Washington. The first is submitted by the law firm of Puckett and Redford PLLC ("Puckett & Redford")1 and three of its attorneys, Randy Redford, Ryan Weatherstone, and Lauren Novack ("Attorney Defendants"). Dkt. No. 32. The second is submitted by Gleiberman Properties, Inc. ("Gleiberman Properties"). Dkt. No. 35. Having reviewed the motions, the oppositions thereto, the record of the case, and the relevant legalauthorities, the Court will grant Puckett & Redford and Attorney Defendants' motion as it pertains to Defendant Novack, grant in part and deny in part their motion as it pertains to Defendants Redford and Weatherstone, and grant in part and deny in part Gleiberman Properties' motion.2 The Court will also sua sponte dismiss several of Plaintiff's claims against Defendants Redford and Weatherstone. The reasoning for the Court's decision follows.
This matter involves the eviction of Plaintiff from the apartment he rented from Gleiberman Properties. Dkt. No. 28 at ¶¶ 7, 10-16. Many of the underlying facts are not in dispute. Plaintiff resided at the apartment from February 2016 to August 2018 along with his co-tenant Marjorie Drieu. Id. at ¶¶ 7, 9; Dkt. No. 35 at 2. Plaintiff and Ms. Drieu had a falling out. On August 1, 2018, Plaintiff was arrested for an unspecified offense against Ms. Drieu, after which she obtained a no-contact order preventing Plaintiff from coming within 1,000 feet of the apartment. Dkt. No. 28 at ¶ 8. As a result, Plaintiff moved out and avers he no longer treated the apartment as his primary residence. Id. at ¶¶ 8-9. Plaintiff contacted Gleiberman Properties, informed the company that he no longer lived at the apartment, and provided it with a copy of the no-contact order. Id. at ¶ 9. Plaintiff also claims Gleiberman Properties was aware he suffered from a mental or psychological disability and a substance abuse disability. Id. at ¶ 17. While Plaintiff claims thathis actions are impaired by the disability, he has not described this disability, nor does he contend that his disability actually prevented him from communicating with Gleiberman Properties. Id.
After Plaintiff moved out of the apartment, Gleiberman Properties began eviction proceedings. Id. at ¶¶ 10-12. As grounds for the eviction, Gleiberman Properties claims Plaintiff and Ms. Drieu were late on rent and that it discovered illegal activity was being conducted in the apartment in violation of the lease agreement. Dkt. No. 35 at 3. It is uncontested that Plaintiff stopped paying rent in July 2018 and failed to pay rent thereafter. See id. To institute the eviction, Gleiberman Properties engaged the law firm of Puckett & Redford, which, according to Plaintiff, devotes the entirety of its practice to the representation of landlords including evictions and actions for unpaid rent. Dkt. No. 28 at ¶ 19.
To initiate the eviction, Gleiberman Properties claims it delivered notice to Plaintiff at the apartment itself. Dkt. No. 35 at 3. When neither Plaintiff nor Ms. Drieu responded to the notice, Gleiberman Properties posted a three-day notice to vacate on the apartment door and mailed a copy to the apartment's address. Id. at 2-3; Dkt. No. 28 at ¶ 11. After three days, Gleiberman Properties, through Puckett & Redford, obtained a default judgment from King County Court for back rent. Dkt. No. 28 at ¶ 15; Dkt. No. 35 at 3-4. Based on that judgment, Gleiberman Properties took possession of the apartment and had the King County Sheriff execute a writ of restitution. Dkt. No. 28 at ¶ 16; Dkt. No. 35 at 3-4. Plaintiff's remaining belongings were moved to the building's parking lot. Dkt. No. 28 at ¶ 16; Dkt. No. 35 at 4. Plaintiff does not dispute that he received a call from the King County Sheriff's Office advising him that his property had been removed to the parking lot and that he needed to retrieve the items. Dkt. No. 35 at 8; Dkt. No 40; Dkt. No. 42 at 5. The belongings were guarded by the Sheriff for a period of time and Gleiberman Properties then kept watch over the belongings for a number of days before disposing of them. Dkt. No. 28at ¶ 16; Dkt. No. 35 at 4. Plaintiff did not contact Gleiberman Properties to request that it store his property. Dkt. No. 35 at 8. Nor did Plaintiff pick up the property. Dkt. No. 28 at ¶ 17. Plaintiff claims he lost approximately $50,000 worth of personal property. Id. at ¶ 18.
On September 26, 2019, Plaintiff filed suit in this Court claiming federal question and supplemental jurisdiction. Dkt. No. 1. Plaintiff's Amended Complaint names both Gleiberman Properties and Puckett & Redford PLLC as defendants as well as the three Attorney Defendants. Dkt. No. 28. Not every defendant, however, is named in each of the Amended Complaint's seven causes of action, which allege violations of (I) the Washington Collection Agency Act, RCW § 19.16 ("WCAA"), in itself and as a per se violation of the Washington Consumer Protection Act, RCW § 19.86 ("WCPA"); (II) WCPA, RCW § 19.86 et seq. ("unfair practices"); (III) Fair Debt Collection Practices Act, 15 U.S.C. § 1692a et seq. ("FDCPA");3 (IV) Trespass; (V) Conversion;4 (VI) Conversion; and (VII) Washington's Residential Landlord-Tenant Act, RCW § 59.18.312 ("RLTA"). Dkt. No. 28 at ¶¶ 35-94.
The law firm of Puckett & Redford PLLC is named in Claim I (WCAA as a per se violation of WCPA), Claim II (WCPA unfair practices), Claim III (FDCPA), Claim IV (Trespass), Claim VI (Conversion), and Claim VII (RLTA); the Attorney Defendants are named in Claim I (WCAAas a per se violation of WCPA), Claim II (WCPA unfair practices), Claim III (FDCPA), Claim IV (Trespass), Claim VI (Conversion), and Claim VII (RLTA); and Gleiberman Properties is named in Claim II (WCPA unfair practices), Claim IV (Trespass), Claim VI (Conversion), and Claim VII (RLTA). Id.
On May 7, 2020, Puckett & Redford and the Attorney Defendants jointly filed a motion to dismiss pursuant to Federal Rules of Civil Procedure ("FRCP") 12(b)(5) and FRCP 12(b)(6). Dkt. No. 32. The motion, however, seeks only to dismiss the claims against the Attorney Defendants, not the law firm itself. Id. The motion advances two grounds for dismissal. First, under FRCP 12(b)(5), the Attorney Defendants argue the claims against Defendant Novack should be dismissed because Plaintiff failed to properly serve her. Id. at 3-8. Second, under FRCP 12(b)(6), the Attorney Defendants argue that dismissal as to all three Attorney Defendants is appropriate for lack of individual liability. Id. at 8-10.
On May 8, 2020, Gleiberman Properties filed a motion to dismiss all claims against it pursuant to FRCP 12(b)(6), arguing Plaintiff fails to state a claim because, broadly, Gleiberman Properties fully complied with the necessary eviction procedures under Washington law. Dkt. No. 35.
Under FRCP 12(b)(5), a district court must dismiss an action where service of process is insufficient. FED. R. CIV. P. 12(b)(5). Once a defendant moves to dismiss a complaint for insufficient service of process, the plaintiff has the burden of establishing valid service under FRCP 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).
FRCP 4 is "a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (quoting United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)). However, "actual notice" alone provides no personal jurisdiction "without substantial compliance with Rule 4." SEC v. Ross, 504 F.3d 1130, 1140 (9th Cir. 2007); see also Direct Mail, 840 F.2d at 688.
FRCP 4(m) reads:
Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
As the language of FRCP 4 makes clear, a court must grant an extension when a plaintiff can show good cause but, if a plaintiff cannot show good cause, the Court may exercise its discretion to either dismiss the action or extend time for service. FED. R. CIV. P. 4(m); Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). In exercising its discretion to extend a service deadline absent good cause, the court considers factors including "a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service." Efaw, 473 F.3d at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)).
Plaintiff concedes he has failed to serve Defendant Novack within 90 days and that he does not have good cause for failing to do so. See Dkt. No. 39 at 2-3. As such, the only question is whether the Court should exercise its discretion to excuse these failures. Plaintiff asks the court to extend time for service because Defendant Novack is aware of Plaintiff's claims and hasappeared in these...
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