Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 1 of 11

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UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON AT TACOMA

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PAMELA S. OWEN,
Plaintiff,

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v.
FEDERAL HOUSING FINANCE AGENCY;
FEDERAL HOME LOAN MORTGAGE
CORPORATION; MTC FINANCIAL, INC.,
D/B/A TRUSTEE CORPS; BISHOP
MARSHALL & WEIBEL, P.S.; CHUCK E.
ATKINS, in his official capacity as Clark
County Sheriff,
Defendants.

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No. 3:15-cv-05375-BHS
DEFENDANT BISHOP, MARSHALL
& WEIBEL, P.S.s JOINDER IN
MTCs REPLY AND REPLY TO
PLAINTIFFS OPPOSITION TO
BISHOPS FED. R. CIV. P. 12(b)(6)
MOTION TO DISMISS
PLAINTIFFS COMPLAINT
WITH PREJUDICE
Noting Date: September 4, 2015

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I.

INTRODUCTION, JOINDER, AND RELIEF REQUESTED

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As with her Opposition [Dkt. 13] to the dismissal motion of Defendant MTC

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Financial Inc. (MTC) [Dkt. 11], Ms. Owens Opposition [Dkt. 23] to Defendant Bishop,

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Marshall & Weibel, P.S.s (Bishop) dismissal motion [Dkt. 21] is long on irrelevant

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 1
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 2 of 11

assertions concerning other Defendants, and short on authorities applicable to claims

against Bishop. Ms. Owen neither addresses, rebuts, nor argues for reversal of Bishops

cited authorities supporting that: (1) Bishops statutorily-compliant and correct civil

procedures in prosecuting the unlawful detainer action against her do not constitute unfair

and deceptive acts under the Consumer Protection Act, RCW 19.86, et seq. (CPA); (2)

claims of conspiracy must be specifically pleaded; and (3) Bishop is not subject to Ms.

Owens Section 1983 claim by virtue of its representation of Federal Home Loan Mortgage

Corporation (Freddie Mac), because Freddie Mac itself is not a government actor for

purposes of constitutional claims.

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Because Ms. Owens arguments against MTCs dismissal motion are substantially

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similar to those against Bishops, Bishop joins in MTCs Reply [Dkt. 17]. And because

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Ms. Owen cannot plead any set of facts that will overcome her failure to state a claim

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against Bishop upon which relief may be granted, this action against Bishop should be

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dismissed with prejudice.

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II.
A.

AUTHORITIES AND ARGUMENT

Plaintiffs Complaint Fails to State a CPA Cause of Action Against Bishop.

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Bishops dismissal motion argued that Ms. Owens claim for CPA violations

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depended completely on her misinterpretation of Washington law. Bishop cited every

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statute and rule which allowed it to take the actions in prosecuting the unlawful detainer

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action against Ms. Owen which she alleges were unfair and deceptive.

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 2
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 3 of 11

Instead of responding to Bishops arguments and rebutting Bishops cited

authorities, Ms. Owen merely repeats those contained in her Complaint and several

subsequent pleadings. [Compare, Dkt. 2-3, pp. 2-4; Dkt. 12, pp. 7-9 and 26-28; Dkt. 13,

pp. 6-7 and 9-13; Dkt. 25, pp. 3-5.] But the law has changed since issuance of the several

opinions on which she relies.

Contrary to Ms. Owens assertions [Dkt. 23, pp. 5-6], no longer must a Complaint

be filed to commence a civil action. Instead, an action is commenced in Washington State

by service of a summons and complaint as was done here or by filing a complaint.

RCW 4.28.020; CR 3(a); Seattle Seahawks, Inc. v. King County, 128 Wn.2d 915, 917, 913
Plaintiffs citations to opinions holding the Superior Court lacks

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P.2d 375 (1996).

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jurisdiction if the Defendant is not served with a previously-filed Summons and Complaint

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are inapplicable under current law.

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Ms. Owen now argues a new assertion that the Summons with which she was

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served was void ab initio, because it was returnable on March 30, 2015, four days before

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it was issued on April 2, 2015. [Dkt. 23, p. 6, ll. 16-19.] But the attachments to her

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Complaint reflect that the Summons was in fact issued by Bishop on March 3, 2015 [Dkt.

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2-3, p. 80], as allowed by CR 4(a)(1) and (b). It is correct that the Summons was not filed

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until April 2, 2015, but that does not alter the provisions of CR 3, CR 4, and RCW

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59.18.365, allowing commencement of an action by an attorney issuing and serving an

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unfiled Summons and Complaint. Indeed, Ms. Owen correctly cites RCW 59.12.180 for

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 3
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 4 of 11

the proposition that these precise Civil Rules are applicable to unlawful detainer actions

[e]xcept as otherwise provided[.] RCW 59.12.180 (emphasis supplied). There are no

exceptions to the allowance of issuing and serving a Summons and Complaint without

filing them; accordingly, Ms. Owens arguments are inapposite.

Similarly, Ms. Owen did not respond to Bishops briefing that her due process

rights were not violated because ex parte communications with the trial court to obtain the

Writ of Restitution were allowed, after she was found in default. A defaulted party is not

entitled to notice of proceedings. CR 55(a)(3) (Any party who has not appeared before

the motion for default and supporting affidavit are filed is not entitled to a note of the

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motion [for default.]). The exhibits to Ms. Owens Complaint establish she did not

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appear in the U.D. Case until 10 days after issuance of the default order and Writ of

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Restitution. [Dkt. 2-3, p. 26, Ex. 1.]

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In another previously unplead assertion, Ms. Owen alleges Bishop violated her due

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process rights by failing to require Defendant Freddie Mac to give a bond to Plaintiff

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before the writ of restitution was issued, ex parte, citing RCW 59.12.090. [Dkt. 23, p.

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21, ll. 17-27.] Even were this new allegation correctly plead in the Complaint, it would not

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constitute a CPA violation by Bishop. That statute applies only if a writ is sought at the

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commencement of the action, not after Judgment is entered, as here. RCW 59.12.090

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(emphasis supplied); 17 Wash. Prac., Real Estate 6.80 (2d ed.) (At the commencement

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of the action or at any time while it is pending, the landlord may obtain possession under a

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 4
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 5 of 11

writ of restitution, which may, according to the statute, be issued ex parte upon the

landlords posting of a bond. If the tenant wishes to block restitution, the statute requires

him to post a counter-bond.).

Moreover, it was the Superior Court not Bishop which chose not to order a

bond be posted. [Dkt. 2-3, pp. 94-95.] Plaintiff fails to explain how Freddie Macs

compliance with a lawful court order could even possibly constitute a deceptive trade or

practice by Freddie Macs counsel, Bishop.

Despite her arguments and contentions, Ms. Owen has simply failed to plead that

Bishop engaged in any unfair or deceptive act or practice against her, because all acts of

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which she complains are expressly allowed by Washingtons statutes and Civil Rules.

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Because she cannot establish the requisite elements of a CPA cause of action against

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Bishop, Ms. Owens Complaint should be dismissed. And because her CPA claim is based

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on incorrect and erroneous assertions of law and misunderstanding of Washingtons Civil

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Rules, amendment would be futile; accordingly, the CPA cause of action should be

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dismissed against Bishop with prejudice.

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C.

Plaintiffs Complaint Fails to State a 42 U.S.C. 1983 Claim Against Bishop.

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Similarly, Ms. Owens Opposition to Bishops 42 U.S.C. 1983 briefing neglects to

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respond to Bishops arguments and as with her Opposition to MTCs dismissal motion

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lumps Bishops actions with those of all other Defendants, without explaining or alleging

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any relationship among them other than, conclusorily, as co-conspirators.

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 5
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

[Dkt. 2-3,

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 6 of 11

6.10.] The Reply expands on the Complaints sole and since rebutted allegations that

Bishops service of the eviction Summons and Complaint without first filing them, and

obtaining the Writ of Resitution ex parte after Ms. Owen defaulted, somehow constituted a

conspiracy between Bishop and Defendants Federal Housing Finance Agency and Freddie

Mac. [Id.] But, as noted in MTCs Reply, those additional conclusory assertions without

the requisite meeting of the minds supporting allegations which are absent from

Plaintiffs Complaint are facially inadequate to withstand dismissal under both Ninth

Circuit and this Districts precedent. Gibson v. United States, 781 F.2d 1334, 1343 (9th

Cir. 1986); Lacey v. Maricopa Cnty., 693 F.3d 896, 937-38 (9th Cir. 2012); Walters v.

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Seattle Sch. Dist. No. 1, 578 F.Supp.2d 1310, 1313 (W.D. Wash. 2008).

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Ms. Owens Reply also ignores Bishops briefing and authorities which establish

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that her claim that Bishop acted under color of state law cannot prevail for three reasons.

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First, a privately-retained attorney does not act under color of state law for the purposes of

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a Section 1983 claim. Hunter v. Ferebauer, 980 F.Supp.2d 1251, 1263 (E.D. Wash. 2013)

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(citing, Briley v. State of Cal., 564 F.2d 849, 855 (9th Cir.1977)). Second, even if Bishop

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somehow misused the unlawful detainer statute which it expressly denies private

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misuse of a state statute does not describe conduct that can be attributed to the State to

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support a Section 1983 claim against the actor. Lugar v. Edmondson Oil Co., 457 U.S.

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922, 941, 102 S. Ct. 2744, 2756, 73 L. Ed. 2d 482 (1982).

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 6
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 7 of 11

Finally, the fact that Bishop was representing Freddie Mac does not convert

Bishops actions into state action that would subject it to liability under Section 1983,

because unanimous federal authority holds that Freddie Mac itself is not a governmental

actor for purposes of constitutional claims. See, e.g., Mik v. Fed. Home Loan Mortg.

Corp., 743 F.3d 149 (6th Cir. 2014) (holding that Freddie Mac is not a government actor

subject to a due process claim); see also, Fed. Home Loan Mortgage Corp. v. Shamoon,

922 F.Supp.2d 641, 644 (E.D. Mich. 2013) (collecting cases holding that Freddie Mac and

similarly situated Fannie Mae are not subject to constitutional liability).

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Ms. Owen correctly sets forth the standard this Court should utilize in evaluating
the sufficiency of her Section 1983 claim:
A complaint fails to state a claim under 1983 if it merely sets forth
a conclusion that there is a nexus between the plaintiff, each
defendant, and the conduct that created the constitutional tort.
According the United States Supreme Courts analysis, federal
courts should use a two-step approach when deciding a CR 12(b)(6)
motion to dismiss: first, ignore all conclusory allegations; second,
determine the facial plausibility of the non-conclusory factual
allegations.

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[Dkt. 23, p. 9, ll. 21-27 (emphasis supplied) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-

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79, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009) and Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007)).]

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Here, after the Court ignores the sole conclusory allegation against Bishop [Dkt. 2-

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3, 6.10], there are no non-conclusory factual allegations concerning the conspiracy

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 7
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 8 of 11

remaining to be considered. And to the extent the Court chooses to consider the unpleaded

additional allegations in Ms. Owens Reply they, too, are insufficient to establish a

conspiracy of all Defendants to violate Ms. Owens constitutional rights as facially

plausible.

As with her case against MTC, Ms. Owen also fails to string together a series of

events showing a causal relationship between Bishops acts and the alleged deprivation of

her federal rights. She correctly asserts that the Ninth Circuit requires that the plaintiff

establish cause-in-fact and proximate cause in order to satisfy the first link in Section

1983s causation requirement. [Dkt. 23, p. 19, ll. 14-16 (citing Harper c. City of Los

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Angeles, 533 F.3d 1010, 1026-27 (9th Cir. 2008) and Arnold v. I.B.M. Corp., 637 F.2d

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1350, 1355 (9th Cir. 1981)).] She then conclusorily alleges that in filing the eviction

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action, Bishop acted under color of State law in causing the deprivation of Plaintiffs

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constitutional rights. [Dkt. 23, p. 24, ll. 12-14.]

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But the civil action was filed because Ms. Owen: (1) failed to pay her mortgage; (2)

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failed to timely assert any defenses she had to nonjudicial foreclosure; (3) failed to timely

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vacate the premises after receiving notice to do so; and (4) Freddie Mac wished to gain

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possession of its property, as it was entitled to do. Thus it was Ms. Owens own conduct

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that was the proximate cause of the eviction lawsuit not Bishops actions in following its

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clients direction to file that litigation.

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 8
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 9 of 11

Because on the facts alleged Bishop performed no acts under color of state law,

and Ms. Owens allegations are insufficient to establish communications and a meeting of

the minds to form a conspiracy against her, Plaintiffs Section 1983 claim should be

dismissed. As a privately-retained attorney for a non-governmental entity, Bishop was not

a state actor as a matter of law for purposes of constitutional claims; consequently, Ms.

Owens Section 1983 claim should be dismissed with prejudice and without leave to

amend.

III.

CONCLUSION

Pursuant to Fed. R. Civ. P. 12(b)(6) and in consideration of the foregoing points,

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authorities, and arguments, Defendant Bishop, Marshall & Weibel, P.S., respectfully

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requests the Court dismiss all claims of Plaintiff Pamela Owen against it, with prejudice,

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for her failure to state a claim upon which relief may be granted.

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DATED this 3rd day of September, 2015.

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/s/ Barbara L. Bollero

Barbara L. Bollero, WSBA No. 28906
David A. Weibel, WSBA No. 24031
MARSHALL & WEIBEL, P.S.
720 Olive Way, Suite 1201
Seattle, WA 98101-1801
Phone: (206) 622-5306, ext. 5918
Email: dweibel@bwmlegal.com
Email: bbollero@bwmlegal.com
Attorneys for Defendant Bishop,
Marshall & Weibel, P.S.

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 9
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 10 of 11

DECLARATION OF SERVICE

I hereby certify that on September 3, 2015, I electronically filed the foregoing with the

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

the following CM/ECF participants:

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Pamela S. Owen
3912 NE 57th Avenue
Vancouver, WA 98661
Plaintiff Pro Se

[ ] By United States Mail

[ ] By Legal Messenger
[ ] By Federal Express
[X] By CM/ECF

Michael S. DeLeo, WSBA #22037

PETERSON RUSSELL KELLY PLLC
1850 Skyline Tower
10900 NE Fourth Street
Bellevue, WA 98004-8341
Attorneys for Defendant MTC
Financial Inc. d/b/a Trustee Corps

[ ] By United States Mail

[ ] By Legal Messenger
[ ] By Federal Express
[X] By CM/ECF
[ ] By Email to: mdeleo@prklaw.com

William P. Richardson, WSBA #42104

Clark County Prosecution Civil Div. P.O.
Box 5000
1300 Franklin St.
Vancouver, WA 98660-2865
Attorneys for Defendant Chuck E. Atkins

[ ] By United States Mail

[ ] By Legal Messenger
[ ] By Federal Express
[X] By CM/ECF
[ ] By Email to:
Bill.Richardson@clark.wa.gov

Jody M. McCormick, WSBA #26351

WITHERSPOON KELLEY
422 W. Riverside Ave., Ste. 1100
Spokane, WA 99201-0300
Attorneys for Defendant Freddie Mac

[ ] By United States Mail

[ ] By Legal Messenger
[ ] By Federal Express
[X] By CM/ECF
[ ] By Email to:
JMM@witherspoonkelley.com

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 10
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354

Case 3:15-cv-05375-BHS Document 32 Filed 09/03/15 Page 11 of 11

Dated this 3rd day of September, 2015, at Seattle, Washington.

MARSHALL & WEIBEL, P.S.

/s/ Tamorah L. Burt

Tamorah L. Burt, Legal Assistant

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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.S JOINDER IN MTCs
REPLY AND REPLY TO PLAINTIFFS
OPPOSITION TO BISHOPS FED. R. CIV.
P. 12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE - 11
No. 3:15-cv-05375-BHS

MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354