Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 1 of 10

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THE HONORABLE RICARDO S. MARTINEZ

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LISA HOOPER, BRANDIE OSBORNE,
KAYLA WILLIS, REAVY WASHINGTON,
individually and on behalf of a class of
similarly situated individuals; THE
EPISCOPAL DIOCESE OF OLYMPIA;
TRINITY PARISH OF SEATTLE; REAL
CHANGE,

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Plaintiffs,

No. 2:17-cv-00077-RSM
PLAINTIFFS’ REPLY IN SUPPORT OF
THEIR MOTION TO DISMISS
PLAINTIFFS’ CLAIMS AND THE CITY
OF SEATTLE’S COUNTERCLAIM
NOTE ON MOTION CALENDAR:
April 3, 2020

v.
CITY OF SEATTLE, WASHINGTON;
WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION; ROGER MILLAR,
SECRETARY OF TRANSPORTATION FOR
WSDOT, in his official capacity,
Defendants.

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I.

INTRODUCTION

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The crux of Defendants’ argument is that a dismissal of all claims is inappropriate

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because they “deserve” a ruling on the merits in their favor for defending themselves in a

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preliminary injunction hearing. Such an argument runs contrary to the relevant authority and

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is not a valid basis for denying Plaintiffs’ request for voluntary dismissal. Westlands Water

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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 1
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 2 of 10

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Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996) (“Federal Rule of Civil Procedure
41(a)(2) allows a plaintiff, pursuant to an order of the court, and subject to any terms and
conditions the court deems proper, to dismiss an action without prejudice at any time.”).

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Nor does Defendants’ desire to avoid litigation in another forum constitute “legal
prejudice” or form a basis for Defendants to prevail on the merits. The relief Defendants seek—
the conversion of a denial of Plaintiffs’ request to pause non-emergency sweeps until an
adjudication on the merits into a sweeping declaratory judgment that the City’s expansive
sweeps policies are lawful under any hypothetical law or circumstance in the past, present, or
future—ignores the parties’ burdens of proof, controlling precedent and procedural
requirements, and this Court’s jurisdictional authority. See Fed. R. Civ. P. 65(a)(2) and 56; 28
U.S.C. § 2201.

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This Court does, however, have the authority to dismiss all claims in this litigation and
should exercise its clear discretion to do so. Fed. R. Civ. P. 41(a)(2); 28 U.S.C. § 2201.
II.

THIS CASE IS APPROPRIATELY RESOLVED BY DISMISSING ALL
CLAIMS

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Plaintiffs seek dismissal of all of their claims and the City’s counterclaim pursuant to

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Federal Rule of Civil Procedure 41(a)(2) and this Court’s discretionary authority under the

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Declaratory Judgment Act. The purpose of Rule 41(a)(2) is “to permit a plaintiff to dismiss an

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action without prejudice so long as the defendant will not be prejudiced or unfairly affected by

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dismissal.” Stevedoring Servs. of Am. v. Armilla Intern. B.V., 889 F.2d 919, 921 (9th Cir. 1989)

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(citations omitted).

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Westlands Water Dist., 100 F.3d at 96. Defendants here fail to show that they would suffer any

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legal prejudice from dismissal of this case.

“Plain legal prejudice”—not mere inconvenience—is required.

See

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Defendants misconstrue the controlling authority and claim that Plaintiffs ignore

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Westlands’ holding on this issue. Dkt. 240 at 10. But the Ninth Circuit in Westlands rejected
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 2
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 3 of 10

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arguments nearly identical to those the City now relies on. In Westlands, the Court of Appeals
found the district court had incorrectly relied on three factors to deny dismissal: uncertainty if
the dispute remained unresolved; plaintiffs’ purported delay in moving for dismissal; and the
expense of defending the action. The City’s arguments should be rejected here, as essentially
the same arguments were in Westlands.

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“Uncertainty because a dispute remains unresolved is not legal prejudice.” Westlands,
100 F.3d at 97. Here, Defendants remain free to remove encampments, conducting as many as
six removals per day in February of 2020.1 And dismissal would clearly not prevent Defendants
from defending the current state court lawsuit or asserting, in any forum, that their policies are
lawful. Simply put, Defendants have lost no legal rights or defenses. Smith v. Lenches, 263
F.3d 972, 976 (9th Cir. 2001) (quoting Westlands, 100 F.3d at 97) (“Although case law does
not articulate a precise definition of ‘legal prejudice,’ the cases focus on the rights and defenses
available to a defendant in future litigation.”). Accordingly, dismissal will cause no plain legal
prejudice.

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With respect to delay, the Ninth Circuit in Westlands noted that a timeline which mirrors
the timeline here was not dilatory or evidence of legal prejudice:

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The [plaintiffs] . . . attempted to obtain a stipulated dismissal without
prejudice within three months after the district court denied their
motion for a preliminary injunction. Within a month after those
efforts failed, and before the defendants filed their motions for
summary judgment, the Districts filed their motion for voluntary
dismissal without prejudice. The Districts could have sought
dismissal sooner than they did, but they were not dilatory.

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The City posts site journals for some “encampment removals” it conducts on its website
which indicates that on multiple days in February of 2020, the City conducted at least six
sweeps. Over the course of the month, the City conducted more than 40 sweeps. See
https://www.seattle.gov/homelessness/unauthorized-encampments/encampmentremovals#february1272020.

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 3
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 4 of 10

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Id. at 97. Plaintiffs here sought review of this Court’s class certification ruling in October of
2017. Counsel for Plaintiffs approached Defendants about a stipulated dismissal one month
after the Ninth Circuit issued its mandate in December 2019 and weeks before Defendants filed
their conversion motion. When these efforts failed, Plaintiffs promptly moved for voluntary
dismissal with this Court. Defendants are well aware that one of the reasons Plaintiffs did not
move more quickly for dismissal was that Counsel was having difficulty reaching some of the
unhoused Plaintiffs. The fact that Defendants contemporaneously filed a motion for a ruling in
their favor on the merits—though not a summary judgment motion2—does not change the
calculus or suggest legal prejudice.

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The fact that Defendants have had to expend resources defending this litigation is also
not a reason to deny dismissal. As in Westlands, the Ninth Circuit has repeatedly and
“explicitly stated that the expense incurred in defending against a lawsuit does not amount to
legal prejudice.” Westlands, 100 F.3d at 97 (citing Hamilton v. Firestone Tire & Rubber
Co., 679 F.2d 143, 146 (9th Cir.1982)).

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Because their arguments have no basis in authority, Defendants try to add a novel
twist, asserting that Plaintiffs’ unhoused status is somehow indicative of misconduct or forum
shopping. Dkt. 240 at 10-12. The City’s allegation is void of any evidentiary support and
ignores the reality of the Plaintiffs’ precarious position and the current pandemic in which we
are all living. Plaintiffs lack stable shelter and consistent, reliable modes of communication—

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Defendants now claim they have moved for summary judgment, but this is simply not the
case. Defendants instead filed a motion to convert this Court’s ruling into a final adjudication
on the merits—and the only authority Defendants cited relied upon Rule 65(a)(2). There is no
summary judgment motion under Rule 56 pending, either explicitly or implicitly. Nor could
there be: Defendants have not identified what they claim are undisputed facts, why they are
entitled to judgment as a matter of law, or done anything else required by Rule 56. A motion
to convert does not become a summary judgment motion because a party, realizing it has put
forth no valid basis for a motion to convert, decides on reply to say it was something different
all along.

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 4
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 5 of 10

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often as a result of Defendants’ sweeps—and it would currently be unsafe (not to mention
impractical) for counsel to physically go to encampments across the City in search of
Plaintiffs. In addition to the fact that Defendants’ callous supposition is entirely unsupported,
it is also legally irrelevant. “[L]egal prejudice does not result merely because the defendant
will be inconvenienced by having to defend in another forum or where a plaintiff would gain
a tactical advantage by that dismissal.” Smith, 263 F.3d at 976 (citing Hamilton v. Firestone
Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 1982)). Even the prospect of a second
lawsuit on the same set of facts (which is not a realistic danger here) has been found not to be
sufficient legal prejudice to justify denying a Plaintiffs’ motion to dismiss without prejudice.
See McCants v. Ford Motor Co., Inc., 781 F.2d 855, 859 (11th Cir.1986); Durham v. Fla. E.
Coast Ry. Co., 385 F.2d 366, 368 (5th Cir.1967).
Defendants’ suggestion that Plaintiffs are trying to evade this Court’s rulings is
equally without merit. First—this Court has not made any adverse ruling that Plaintiffs could
“avoid.” The Court simply denied a motion for a preliminary injunction. Second, as
Defendants requested, the case is not proceeding as a class action. Accordingly, it is wholly
appropriate for other unhoused persons to seek relief solely under state law in state court for
harm they have experienced at the hands of the City. Indeed, the existence of the state court
action supports dismissal of the claims at issue here. “[W]hen a state court action is pending
presenting the same issue of state law as is presented in a federal declaratory suit, ‘there exists
a presumption that the entire suit should be heard in state court.’” Cont'l Cas. Co. v. Robsac
Indus., 947 F.2d 1367, 1370–71 (9th Cir. 1991), overruled on other grounds by Gov't
Employees Ins. Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998)). “In any event, the need to

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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 5
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 6 of 10

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defend against state law claims in state court is not ‘plain legal prejudice’ arising from
voluntary dismissal of the federal claims in the district court.” Smith, 263 F.3d at 976.3

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It is common and appropriate for Plaintiffs to dismiss their claims, even when motions
for judgment are filed:

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Rule 41(a) expressly contemplates situations in which the district
court may, in its discretion, dismiss an action without prejudice
even after the defendant has moved for summary judgment.
Indeed, a voluntary dismissal by leave of court under Rule 41(a)(2)
[even] after a summary judgment motion is filed is deemed to be
without prejudice unless otherwise ordered. . . . In addition, it is
clear . . . that the mere attempt to avoid an adverse summary
judgment ruling in and of itself, particularly where there is no
evidence of bad faith, does not constitute plain legal prejudice.

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Pontenberg v. Bos. Sci. Corp., 252 F.3d 1253, 1258 (11th Cir. 2001) (emphasis added).

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Finally, even if Defendants could articulate some sort of legal prejudice they would

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suffer as a result of the dismissal of this case (which they have not) the appropriate remedy

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would be to dismiss Plaintiffs’ claims with prejudice, not a final adjudication on the merits in

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Defendants’ favor. See Maxum Indem. Ins. Co. v. A-1 All Am. Roofing Co., 299 F. App’x

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664, 665-66 (9th Cir. 2008) (finding dismissal with prejudice proper when legal prejudice was

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demonstrated).

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Defendants’ cavalier treatment of Plaintiffs’ state constitutional claims in this case also
illustrates the fallacy of their request. On one hand, they acknowledge that Plaintiffs have not
litigated their state constitutional claims—which makes sense because they were trying to
obtain preliminary relief in federal court—yet Defendants simultaneously claim that this
Court can issue a final ruling regarding the legality of the City’s rules under every provision
of the Washington State Constitution. The City has similarly never litigated the legality of the
entirety of the lengthy MDARs under state law and any disputes the City might have with
unhoused people regarding its conduct under the state constitution are appropriately resolved
in state court, not in a one paragraph “reply and response” to their motion for conversion.

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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 6
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 7 of 10

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That Defendants would prefer a final adjudication on the merits in their favor on their
counterclaim for declaratory judgment does not constitute “plain legal prejudice” under Rule
41(a)(2). Nor is Defendants’ affirmative burden of proof under Rule 56 met simply because
Plaintiffs failed to obtain a preliminary injunction.4 As we have previously shown,
Defendants’ counterclaim—along with all claims in the litigation—should be dismissed
because it does not seek a declaratory judgment this Court can adjudicate in conformity with
the Declaratory Judgment Act and relevant caselaw.

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Defendants allege that a final declaratory ruling in their favor would provide
“persuasive and informative value on important issues going forward.” Dkt. 240 at 8. But
this is precisely the type of advisory opinion that Courts are instructed to avoid. See
Medimmune, Inc. v. Genetech, Inc., 549 U.S. 118, 127 (2007); Eccles v. Peoples Bank of
Lakewood Vill., Cal., 333 U.S. 426, 431 (1948). Defendants also fail to cite any evidence that
Plaintiffs in this case seek to engage in subsequent litigation and a court cannot issue a
declaratory judgment on hypothetical disputes. See Medimmune, 549 U.S.at 127 (declaratory

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Defendants effectively claim that they need no basis in the civil rules for their motion.
Defendants concede that the requirements of Rule 65(a)(2) are not met here and now claim a
final ruling on the merits is appropriate simply because Defendants used the word “summary
judgment” in their motion. But Defendants have also utterly failed to satisfy their burden
under Rule 56 to show that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In fact, Defendants fail to
even attempt to identify what the material facts in the litigation are let alone explain why they
are undisputed or how further factual development is immaterial when more than three years
have passed since this litigation, seeking declaratory and injunctive relief, was filed. In other
words, Defendants’ argument is that because they filed a motion for “conversion” and
“summary judgment” they need not meet the requirements of the rules for either. Plaintiffs
respectfully submit that granting Defendants’ motion, regardless of how it is couched, would
be erroneous.
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 7
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 8 of 10

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relief must be “distinguished from an opinion advising what the law would be upon a
hypothetical state of facts”).

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The City also claims it is merely requesting a declaration targeted to the Plaintiffs and
the disputes they have raised in this lawsuit—but in reality, the City is requesting a finding of
“validity” of its policies in all ways on their face and as applied to these Plaintiffs now or in
the past. Such a request asks no concrete, non-hypothetical question that the Court can
reasonably answer in a declaratory action, and the City’s counterclaim should therefore be
dismissed along with Plaintiffs’ claims.

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At the end of the day, Defendants’ argument boils down to this: they are entitled to a
judgment in their favor, not because they would suffer “prejudice” from dismissal or because
there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law” but because they believe they are entitled to final judgment due to a
preliminary injunction ruling rendered over two years ago, even though this case has not been
fully litigated and has never reached state constitutional claims that are now properly pending
in state court. The cases demonstrate that this bare desire for vindication is far from enough
to prevent dismissal of all claims.

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III.

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CONCLUSION

For the aforementioned reasons, this Court should GRANT Plaintiffs’ Motion to
Dismiss Plaintiffs’ Claims and the City’s Counterclaim and DENY Defendants’ Motion for
Conversion of Preliminary Injunction into Final Judgment on the Merits.

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//
//
//

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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 8
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 9 of 10

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DATED this 3rd day of April, 2020.

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s/ Todd T. Williams
Breanne Schuster, WSBA No. 49993
Nancy Talner, WSBA No. 11196
AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, Washington 98164
Telephone: (206) 624-2184
Email: talner@aclu-wa.org
bschuster@aclu-wa.org

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Blake Marks-Dias, WSBA No. 28169
Todd T. Williams, WSBA No. 45032
Eric A. Lindberg, WSBA No. 43596
Victoria E. Ainsworth, WSBA No. 49677
CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Telephone: (206) 625-8600
Email: bmarksdias@corrcronin.com
twilliams@corrcronin.com
elindberg@corrcronin.com
tainsworth@corrcronin.com

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Attorneys for Plaintiffs

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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 9
Cause No. 2:17-cv-00077-RSM

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900

 Case 2:17-cv-00077-RSM Document 241 Filed 04/03/20 Page 10 of 10

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CERTIFICATE OF SERVICE

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I hereby certify that on April 3, 2020, I electronically filed the foregoing with the Clerk

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of the Court using the CM/ECF system, which will send notification of such filing to the

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following:

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Attorneys for Defendant City of Seattle:

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Matthew J. Segal, WSBA No. 29797
Gregory J. Wong, WSBA No. 39329
Taki V. Flevaris, WSBA No. 42555
PACIFICA LAW GROUP LLP
1191 Second Avenue, Suite 2000
Seattle, WA 98101
matthew.segal@pacificalawgroup.com
greg.wong@pacificalawgroup.com
taki.flevaris@pacificalawgroup.com

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Patrick Downs, WSBA No. 25276
Gregory C. Narver, WSBA No. 18127
Carlton W.M. Seu, WSBA No. 26830
Gary T. Smith, WSBA No. 29718
SEATTLE CITY ATTORNEY
701 Fifth Avenue, Suite 2050
Seattle, WA 98104-70197
patrick.downs@seattle.gov
gregory.narver@seattle.gov
carlton.seu@seattle.gov
gary.smith@seattle.gov

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Attorneys for Defendants Washington
State Department of Transportation and
Roger Millar, Secretary of Transportation
for WSDOT:
Alicia O. Young, WSBA No. 35553
Matthew D. Huot, WSBA No. 40606
Assistant Attorneys General
ATTORNEY GENERAL OF
WASHINGTON
Complex Litigation Division
7141 Cleanwater Drive SW
P.O. Box 40111
Olympia, WA 98504-0111
AliciaO@atg.wa.gov
MattH4@atg.wa.gov

s/ Todd T. Williams
Todd T. Williams, WSBA No. 45032
Attorney for Plaintiffs
CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Telephone: (206) 625-8600
Email: twilliams@corrcronin.com

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PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO
DISMISS ALL CLAIMS– 10
Cause No. 2:17-cv-00077-RSM

100 00143 kd03gg28s6

CORR CRONIN LLP
1001 Fourth Avenue, Suite 3900
Seattle, Washington 98154-1051
Tel (206) 625-8600
Fax (206) 625-0900