Cheesman v. Ellensburg School District

1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Jul 23, 2019 SEAN F. MCAVOY, CLERK 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON RUTH ANN CONDE CHEESMAN, No. 1:18-cv-03218-SAB 11 Plaintiff, 12 v. ELLENSBURG SCHOOL DISTRICT, ORDER DENYING JOHN GRAF, TIA ROSS, NANCY MOTION TO DISMISS WILBANKS, 16 Defendants.

19 Before the Court is Defendant’s Motion to Dismiss under Rule 12(b)(6), ECF No. 23. The motion was heard without oral argument.

21 On January 8, 2019, the Court reviewed Plaintiff’s Complaint under 28 22 U.S.C. § 1915 and concluded that Plaintiff alleged sufficient facts for her § 1983 claims to survive review. ECF No. 7. The Court dismissed claims 3, 4, 6, 7, 8, 10, 12, and 13.

25 Defendants filed an Answer on March 1, 2019, ECF No. 14, and a Scheduling Order was entered on June 5, 2019, ECF No. 22. On that same day, Defendants filed their Motion to Dismiss for Failure to State a Claim Under Rule 12(b)(6). ECF No. 23.

1 Defendants’ Motion to Dismiss is untimely because it was not filed prior to the responsive pleading. MacDonald v. Grace Church Seattle, 457 F.3d 1079, 3)| 1081 (9th Cir. 2006). Plaintiff asks the Court to hold Defendants in contempt for filing their motion. The Court declines to do so. 5 Accordingly, IT IS HEREBY ORDERED: 1. Defendant’s Motion to Dismiss under Rule 12(b)(6), ECF No. 23, is 7|| DENIED.

8 2. Plaintiff’s Motion for Contempt, ECF No. 26, is DENIED.

9 IT ISSO ORDERED. The Clerk of Court is directed to enter this Order and forward copies to Plaintiff and counsel.

11 DATED this 23rd day of July 2019.

16 ‘ Sfrckeyld Scctoar 18 Stanley A. Bastian 19 United States District Judge ORDER DENVING MOTION TO DISMISS ~ 9