Case 2:19-cv-01105-JCC Document 46 Filed 06/29/20 Page 1 of 8

The Honorable John C. Coughenour

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DISCOVERY PARK COMMUNITY
ALLIANCE, et al.,

No. 2:19-cv-1105-JCC

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Petitioners,
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vs.
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CITY OF SEATTLE’S AND SEATTLE
SCHOOL DISTRICT NO. 1’S MOTION
TO DISMISS OR SET A DEADLINE
FOR THE PROPER SERVICE OF THE
U.S. ARMY

CITY OF SEATTLE, et al.,
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Respondents.

NOTE ON MOTION CALENDAR:
Friday, July 24, 2020

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I.

INTRODUCTION AND RELIEF REQUESTED

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Although Petitioners—three months after being ordered to—filed an amended petition
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naming the Army as a Respondent, they failed to properly and timely serve the Army, which still
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has not appeared. Respondents City of Seattle and Seattle School District No. 1 (known as
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Seattle Public Schools or “SPS”) respectfully ask this Court to dismiss this case for failure to join

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a necessary party or set a deadline by which Petitioners must properly serve the Army.
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II.
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FACTS

This action involves the Fort Lawton Army Reserve Center (“Fort Lawton”), which is
owned by the Army and located in Seattle. See Dkt. # 32 at p. 2 (Amended Petition). The Army
is attempting to dispose of Fort Lawton under a process dictated by federal statutes and
regulations. See id. at pp. 4–10.

MOTION TO DISMISS OR SET A DEADLINE FOR THE PROPER
SERVICE OF THE U.S. ARMY - 1
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 46 Filed 06/29/20 Page 2 of 8

In June 2019, as part of the Fort Lawton disposal process, the Seattle City Council

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passed: (1) a resolution approving a redevelopment plan to submit to the Army, part of which

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applies for surplus federal property; (2) an ordinance authorizing an agreement with SPS through

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which SPS would seek 5–6 acres of that land from the Army for athletic fields to be used jointly

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by SPS and the City; and (3) an ordinance rezoning a portion of the property. See id. at p. 3.
To challenge those three City actions, Petitioners sued the City a year ago. Dkt. # 1-2.

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Petitioners claim the City, Army, or SPS committed seven errors: five violations of federal

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regulations; one violation of City law; and one violation of state law. Dkt. # 32 at pp. 10–20

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(Amended Petition). Petitioners pursue four alternative causes of action: under the Washington

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Land Use Petition Act; for a statutory writ; for a constitutional writ; or under the Washington

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Uniform Declaratory Judgments Act. Id. at pp. 21–22.
On November 14, 2019, the Court ordered Petitioners to “serve an amended petition

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naming the Army as a respondent to this action.” Dkt. # 25 at p. 2.1
Petitioners filed an Amended Petition naming the Army three months later, on February

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10, 2020. Dkt. # 32. Petitioners certified service of the Amended Petition on the Chief of the

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U.S. Army Litigation Division, but not on the United States Attorney for the Western District of

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Washington or the Attorney General of the United States. Id. at p. 25.
Since then, Petitioners have filed no proof of serving the Amended Petition on the United

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States Attorney for the Western District of Washington or the Attorney General of the United

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States.
The Army has not appeared.

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The Court also ordered the joinder of SPS, Dkt. # 25 at p. 5. SPS appeared on February 13, 2020. Dkt. # 33-1.

MOTION TO DISMISS OR SET A DEADLINE FOR THE PROPER
SERVICE OF THE U.S. ARMY - 2
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 46 Filed 06/29/20 Page 3 of 8

III.

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ISSUES PRESENTED

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1.

Did Petitioners fail to properly and timely serve the Army?

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2.

Because of Petitioners’ failure, must this Court dismiss the Army without

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prejudice or set a deadline for Petitioners to properly serve the Army?
3.

If this Court dismisses the Army, should this Court also dismiss this case under

state law or Fed. R. Civ. P. 19(b)?
IV.

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The City relies on the papers on file with this Court.
V.

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EVIDENCE

A.

ARGUMENT

Petitioners failed to properly and timely serve the Army.

Petitioners did not properly serve the Army when filing their Amended Complaint in
February. They had to serve not only the Army’s representative, but also the United States
Attorney for the Western District of Washington and the Attorney General of the United States.
Fed. R. Civ. P. 4(i)(2). Petitioners did not serve the United States Attorney or Attorney General
when filing their Amended Complaint.
Petitioners failed to timely correct service. A plaintiff must serve a complaint within
ninety days of filing it. Fed. R. Civ. P. 4(m). Accord Fed. R. Civ. P. 4(c) (“The plaintiff is
responsible for having the summons and complaint served within the time allowed by
Rule 4(m)”). Because Petitioners filed their Amended Petition on February 10, the ninety-day
period ran in May.
B.

This Court must dismiss the Army without prejudice or set a deadline for
Petitioners to properly serve the Army.

If a plaintiff fails to timely and properly serve a defendant, the court “must dismiss the
action without prejudice against that defendant or order that service be made within a specified

MOTION TO DISMISS OR SET A DEADLINE FOR THE PROPER
SERVICE OF THE U.S. ARMY - 3
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 46 Filed 06/29/20 Page 4 of 8

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time.” Fed. R. Civ. P. 4(m). The court must extend the time “if the plaintiff shows good cause for

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the failure.” Id.

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If Petitioners demonstrate good cause for failing to timely and properly serve the Army,
this court should set a deadline for Petitioners to perfect service.
If Petitioners do not demonstrate good cause, this Court should either set that deadline or
dismiss the Army without prejudice.
C.

If this Court dismisses the Army, this Court should also dismiss this case
under LUPA or Fed. R. Civ. P. 19(b).

If this Court dismisses the Army without prejudice, this Court should dismiss the case for
Petitioners’ failure to join a necessary party. Petitioners brought this case under Washington’s
Land Use Petition Act (“LUPA”), Wash. Rev. Code Ch. 36.70C. As this Court found when
ordering the Army’s joinder, “LUPA requires that the Army be joined because the Army owns
Fort Lawton, see Wash. Rev. Code § 36.70C.040(2), .050.” Dkt. # 25 at p. 2. Without the
property owner joined as a party, a court lacks jurisdiction over a LUPA petition. See Wash. Rev.
Code § 36.70C.040(2).
Even if this case were to proceed on one of Petitioner’s alternative causes of action, this
Court should dismiss the case if the Army is dismissed. The Court must consider whether the
action should be dismissed “in equity and good conscience” in light of four factors:

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(1) the extent to which a judgment rendered in the person’s absence might
prejudice that person or the existing parties;

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(2) the extent to which any prejudice could be lessened or avoided by:

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(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;

MOTION TO DISMISS OR SET A DEADLINE FOR THE PROPER
SERVICE OF THE U.S. ARMY - 4
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 46 Filed 06/29/20 Page 5 of 8

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(3) whether a judgment rendered in the person’s absence would be adequate; and

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(4) whether the plaintiff would have an adequate remedy if the action were
dismissed for nonjoinder.

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Fed. R. Civ. P. 19(b). The factors favor dismissal of this case if this Court dismisses the Army.
First, a judgment rendered in the Army’s absence would prejudice the Army, City, and
SPS. Besides its ownership interest in Fort Lawton, the Army has an interest in the proper
administration of the process for disposing surplus Army property—a process run by the Army
for its own property. See, e.g., 32 C.F.R. § 176.5 (each military department may determine what
property is surplus); 32 C.F.R. § 176.20 (responsibilities of military departments in the process).
That process is governed by Department of Defense (“DoD”) regulations Petitioners allege the
City and SPS violated and the Army misapplied. See Dkt. # 32 at pp. 10–20 (Amended Petition).
The Army’s interests could be hampered by rulings interpreting those regulations. And without
the Army present to defend its own interests, the City and SPS are left to argue on the Army’s
behalf, likely unaware of arguments and interests the Army would raise.
Second, the prejudice to the Army, City, and SPS could not be lessened or avoided by
such measures as protective provisions in the judgment or shaping the relief. The City and SPS
can think of no such measures.
Third, a judgment rendered in the Army’s absence would be inadequate. Absent the
Army, this Court cannot accord complete relief. If not a party, the Army would not be bound by
a ruling for Petitioners and could continue to apply the DoD regulations contrary to this Court’s
ruling. For example, Petitioners allege any redevelopment plan is time barred and DoD “must
proceed to disposing of [Fort Lawton] through the alternative statutory means available to it.”
Dkt. # 32 at p. 11 (Amended Petition). If this Court agrees, but if the Army is not a party, the

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MOTION TO DISMISS OR SET A DEADLINE FOR THE PROPER
SERVICE OF THE U.S. ARMY - 5
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 46 Filed 06/29/20 Page 6 of 8

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Army could lawfully continue to apply the DoD regulations rather than alternative statutory

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means.

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Finally, Petitioners would have an adequate remedy if this Court dismissed this case. The

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gravamen of Petitioners’ case are allegations the Army, City, and SPS have failed to adhere to

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DoD regulations in the Army’s on-going Fort Lawton closure process. Those claims will be ripe

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for review under the federal Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701, et seq.,

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once the Army takes final action on Fort Lawton. “As a general matter, two conditions must be

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satisfied for agency action to be ‘final’ [within the meaning of the APA]: First, the action must

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mark the ‘consummation’ of the agency’s decisionmaking process—it must not be of a merely

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tentative or interlocutory nature. And second, the action must be one by which ‘rights or

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obligations have been determined,’ or from which ‘legal consequences will flow.” Bennett v.

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Spear, 520 U.S. 154, 177–78 (1997) (citations omitted). A base closure becomes final when the

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DoD issues a record of decision obligating itself to transfer the property. Role Models America,

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Inc. v. White, 317 F.3d 327, 331–32 (D.C. Cir. 2003). The record contains no allegation that the

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Army has issued a record of decision for Fort Lawton.

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Equity would also favor dismissal of this case, which has dragged on for more than a year

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yet still not assembled the necessary parties. Petitioners are not engaged. They retained and

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jettisoned two sets of counsel, see Dkt. #s 14 and 37 (orders granting motions to withdraw), took

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three months to comply with this Court’s order to file and serve an amended petition naming the

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Army and SPS, compare Dkt. # 25 (Order) with Dkt. # 32 (Amended Petition), and then

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apparently did not follow up with the Army when it failed to appear for four months. Petitioner

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Elizabeth Campbell cannot claim ignorance of the requirement to timely and properly serve a

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federal agency—she was the subject of a motion to dismiss on that basis in this Court. See Notice

MOTION TO DISMISS OR SET A DEADLINE FOR THE PROPER
SERVICE OF THE U.S. ARMY - 6
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 46 Filed 06/29/20 Page 7 of 8

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of Mot. and Mot. to Dismiss for Lack of Subject Matter Jurisdiction, Lack of Personal

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Jurisdiction, and Insufficient Service of Process, Dkt. # 10 at pp. 4–5, Campbell v. Jilik,

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No. C09-1305 JCC (W.D. Wash. April 1, 2010).2 As this case now enters its second year, Ms.

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Campbell has stated her intent to add two more federal agencies, the local archdiocese, and a

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tribal foundation as Respondents, portending further delay. See Dkt. # 44 at pp. 2–3 (Joint Status

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Report). This Court may dismiss this case in good conscience. See Fed. R. Civ. P. 19(b).
VI.

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Because Petitioners failed to properly and timely serve the Army, the City and SPS

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CONCLUSION

respectfully ask this Court to dismiss this case for failure to join a necessary party or set a
deadline by which Petitioners must properly serve the Army.
DATED June 29, 2020.

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PETER S. HOLMES
Seattle City Attorney

MCCULLOUGH HILL LEARY, PS

By:

By:

/s/ Patrick Downs, WSBA # 25276
/s/ Roger D. Wynne, WSBA #23399
Assistant City Attorneys
Seattle City Attorney’s Office
701 Fifth Avenue, Suite 2050
Seattle, WA 98104-7095
Ph: (206) 684-8200
Email: patrick.downs@seattle.gov
roger.wynne@seattle.gov
Attorneys for Respondent City of Seattle

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/s/ G. Richard Hill, WSBA #8806
/s/ Katie J. Kendall, WSBA #48164
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
Ph: (206) 812-3388
Email: rich@mhseattle.com
kkendall@mhseattle.com
Attorneys for Respondent Seattle Public
Schools

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That motion is also available at 2010 WL 3497065. Because this Court dismissed that case for lack of subject
matter jurisdiction, it declined to address improper service as a ground for dismissal. Campbell v. Jilik, No. C091305 JCC, 2010 WL 2605239 at *1 (W.D. Wash. June 25, 2010).

MOTION TO DISMISS OR SET A DEADLINE FOR THE PROPER
SERVICE OF THE U.S. ARMY - 7
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:19-cv-01105-JCC Document 46 Filed 06/29/20 Page 8 of 8

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CERTIFICATE OF SERVICE
I certify that on this day I electronically filed this document and the Proposed Order
Granting Motion to Dismiss [or to Set a Deadline for Serving the U.S. Army] with the Clerk of
the Court using the CM/ECF system, which will send notification of such filing to:
Elizabeth A. Campbell
3826 24th Ave. W.
Seattle, WA 98199
Email: neighborhoodwarrior@gmail.com
Pro Se
G. Richard Hill, WSBA #8806
Katie J. Kendall, WSBA #48164
McCullough Hill Leary, PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
Email: rich@mhseattle.com
kkendall@mhseattle.com
Attorneys for Respondent Seattle Public Schools

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I also certify that on this day I sent a copy of this document via e-mail to the same
individuals.
Dated June 29, 2020, at Seattle, Washington.
/s/ Alicia Reise_________________
ALICIA REISE, Legal Assistant

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MOTION TO DISMISS OR SET A DEADLINE FOR THE PROPER
SERVICE OF THE U.S. ARMY - 8
DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105

Peter S. Holmes
Seattle City Attorney
701 Fifth Ave., Suite 2050
Seattle, WA 98104-7095
(206) 684-8200