Straw v. Avvo Inc

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 ANDREW U. D. STRAW, CASE NO. C20-0294 JLR 11 Plaintiff, ORDER ON MOTION TO v. DISMISS, CROSS-MOTION FOR 12 SUMMARY JUDGMENT, MOTION TO INCREASE PAGE AVVO, INC., 13 LIMIT, MOTION TO STRIKE, AND MOTION TO Defendant.

14 SUPPLEMENT RECORD 15 I. INTRODUCTION 16 There are five motions before the court: (1) Defendant Avvo, Inc.’s (“Avvo”) motion to dismiss Plaintiff Andrew U. D. Straw’s second amended complaint (MTD (Dkt. # 46); see also MTD Reply (Dkt. # 49)); (2) Mr. Straw’s cross-motion for summary judgment, which is included in Mr. Straw’s opposition to Avvo’s motion to dismiss (MSJ & Resp. (Dkt. # 47)); (3) Mr. Straw’s motion to increase the page limit for his cross-motion and response (Mot. to Increase (Dkt. # 48)); (4) Mr. Straw’s motion to strike Avvo’s response to his cross-motion for summary judgment (Mot. to Strike (Dkt.

1 # 53)); and (5) Mr. Straw’s motion to supplement the record on his intentional infliction of emotion distress claim (Mot. to Supp. (Dkt. # 54)). The court has considered the motions, the parties’ submissions filed in support of and in opposition to the motions, the relevant portions of the record, and the applicable law. Being fully advised, the court GRANTS Avvo’s motion to dismiss, GRANTS Mr. Straw’s motion to increase the page limit, DENIES Mr. Straw’s cross-motion for summary judgment as moot, DENIES Mr. Straw’s motion to strike as moot, DENIES Mr. Straw’s motion to supplement the record, and DISMISSES Mr. Straw’s complaint with prejudice and without leave to amend.

9 II. ANALYSIS 10 The court begins with Avvo’s motion to dismiss and the filings related to that motion—Mr. Straw’s motion to increase the page limit for his cross-motion and response and his motion to supplement the record. First, the court GRANTS Mr. Straw’s motion for additional pages. The court agrees with Avvo that Mr. Straw’s cross-motion for summary judgment is improper under the Local Rules. See Local Rules W.D. Wash LCR 7(k). Absent court approval on a briefing schedule for the combined motions, Mr. Straw should have filed his motion for summary judgment separately from his response to the motion to dismiss. See id. However, had Mr. Straw filed separately, he would have been entitled to a total of 48 pages of briefing for the two filings. See Local Rules W.D. Wash 19 LCR 7(e)(3). Thus, the court concludes that granting Mr. Straw a total of 29 pages for his combined brief is appropriate.

21 However, the court DENIES Mr. Straw’s motion to supplement the record for reasons the court previously explained to Mr. Straw. (See 8/27/20 Order (Dkt. # 44) at 6 (“Mr. Straw cannot simply file a new ‘motion to allow’ or a ‘notice’ any time that he wants the court to consider evidence or argument that he believes is pertinent to a motion already pending before the court.”).) If Mr. Straw believes the information in his motion to supplement is relevant to a pending motion, he should have included it in his briefing on that motion. Alternatively, if he believes the information is relevant to his complaint, he should have included it in his second amended complaint. Ultimately, because his freestanding motion to supplement the record is procedurally deficient, the court rejects it.

9 On the merits, the court GRANTS Avvo’s motion to dismiss. The court has reviewed Mr. Straw’s second amended complaint in detail and concludes that he did not heed the court’s warning to “carefully consider the deficiencies and caselaw identified in [the court’s August 27, 2020] order and to correct them if he decides to re-plead his claims.” (See 8/27/20 Order at 15-16.) Instead, the day after the court issued its order, Mr. Straw filed a second amended complaint that raises the same claims based on essentially the same facts and allegations that the court previously dismissed for failure to state a claim. (Compare 8/27/20 Order at 7-15 (detailing the inadequacies in Mr. Straw’s first amended complaint) with SAC (Dkt. # 45).) As such, the court dismisses Mr. Straw’s second amended complaint under Federal Rule of Civil Procedure 12(b)(6) for the same reasons that it dismissed the first amended complaint. (See 8/27/20 Order at 7-15.)

21 Moreover, the court concludes that leave to amend is not warranted. Mr. Straw has already amended his complaint twice (see FAC (Dkt. # 13); SAC), and the court warned Mr. Straw that it was “unlikely to grant him another opportunity to amend” if he filed another deficient complaint (see 8/27/20 Order at 16). Yet, despite the court’s clear warnings and instructions regarding the deficiencies in the first amended complaint, Mr. Straw filed another deficient pleading that failed to cure any of the problems that the court identified. Mr. Straw is not entitled to a fourth bite at the pleading apple. See Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (noting that one factor courts consider in denying leave to amend is “repeated failure to cure deficiencies by amendments previously allowed”). Accordingly, the court dismisses Mr. Straw’s complaint with prejudice and without leave to amend.

10 Because the court dismisses this case with prejudice, the court DENIES Mr. Straw’s cross-motion for summary judgment as moot and DENIES Mr. Straw’s motion to strike Avvo’s response to Mr. Straw’s cross-motion for summary judgment as moot.

13 Finally, the court declines to issue sanctions or an order to show cause why sanctions should not issue against Mr. Straw at this time. (See MTD Reply at 2.) Avvo informs the court that Mr. Straw has continued to harass Avvo and its counsel outside court, and Avvo suggests that this conduct is sanctionable. (See id.) The court has previously outlined the grounds on which it has authority to issue sanctions (see 8/27/20 Order at 16-19), and Avvo has not meaningfully argued that Mr. Straw’s conduct satisfies any of those standards (see MTD Reply at 2). Thus, the court declines to consider sanctions at this time. However, the court has reviewed the evidence Avvo submits in support of its harassment allegations and advises Mr. Straw that the court is disappointed that Mr. Straw ignored yet another court warning that he should focus on “the factual and legal merits of his claims instead of on attacking opposing counsel or filling the court’s docket with unnecessary notices and motions.” (See 8/27/20 Order at 18; Doran Decl.

3 (Dkt. # 50-1) ¶ 2, Ex. A at 5-6 (email from Mr. Straw to Avvo’s counsel stating that Mr. Straw has filed a criminal complaint against Avvo and telling Avvo: “You want to see a shark frenzy? Get ready. The bar status false statement in my case is the first drops of blood in the water.”).) Although Mr. Straw’s action has come to an end in this court, the court strongly advises Mr. Straw to comport himself with a higher degree of professionalism in future cases.

9 III. CONCLUSION 10 For the reasons set forth above, Avvo’s motion to dismiss (Dkt. # 46) is GRANTED, Mr. Straw’s motion to increase the page limit (Dkt. # 48) is GRANTED, Mr. Straw’s motion to supplement the record (Dkt. # 54) is DENIED, Mr. Straw’s cross- motion for summary judgment (Dkt. # 47) is DENIED as moot, and Mr. Straw’s motion to strike (Dkt. # 53) is DENIED as moot. Mr. Straw’s second amended complaint is DISMISSED with prejudice and without leave to amend.

16 Dated this 9th day of November, 2020.

A 19 JAMES L. ROBART United States District Judge