Terrell v. Costco Wholesale Corporation

REPLY BRIEF Defendant's Response Brief in Support of Its Motion to Dismiss Pursuant to April 12, 2017 Order

W.D. Wash.April 28, 2017

DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - 1 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 The Honorable James L. Robart UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JULIUS TERRELL, as an individual and as a representative of the class, Plaintiff, v. COSTCO WHOLESALE CORP., Defendant. No. 2:16-cv-01415-JLR DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) NOTE ON MOTION CALENDAR: Friday, April 28, 2017 Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 1 of 9 DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - i 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 TABLE OF CONTENTS ARGUMENT .................................................................................................................................. 1 I. The Court Must Rule on Standing Before Addressing Remand. ............................ 1 II. Remand Would Be Futile And This Case Should Be Dismissed With Prejudice. ................................................................................................................ 3 Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 2 of 9 DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - ii 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 TABLE OF AUTHORITIES Cases Page(s) Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 1991) ...............................................................................................3, 4 Black v. Main Street Acquisition Corp., No. 5:11-cv-0577, 2013 WL 1295854 (N.D.N.Y. Mar. 27, 2013) ............................................3 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ...................................................................................................................3 Lee v. American Nat. Ins. Co., 260 F.3d 997 (9th Cir. 2001) .................................................................................................2, 3 Mocek v. Allsaints USA Limited, No. 16-C-8484, 2016 WL 7116590 (N.D. Ill. Dec. 7, 2016) .................................................3, 4 Patterson v. Seagle, 171 Wn. App. 251 (Wash. Ct. App. 2012) ................................................................................4 Polo v. Innoventions Int’l, LLC, 833 F.3d 1193 (9th Cir. 2016) ...............................................................................................2, 3 Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) .....................................................................................................3 Wolverton v. Young, No. 24117-3-III, 2006 WL 165734 (Wash. Ct. App. Jan. 24, 2006) .........................................4 Statutes 28 U.S.C. § 1331 ..............................................................................................................................3 28 U.S.C. § 1441 ..........................................................................................................................2, 3 28 U.S.C. § 1447(c) .........................................................................................................................3 28 U.S.C. § 1447(d) .........................................................................................................................2 Other Authorities U.S. Const. Art. III, § 2 ........................................................................................................1, 2, 3, 4 Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 3 of 9 DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - 1 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 This action should be dismissed for lack of Article III standing and because remand to state court would be futile. Terrell’s Opening Brief entirely ignores the Court’s order to explain how, in light of Syed II, he has alleged a concrete injury. He declines to argue that he has suffered a concrete injury, even though his opposition to Costco’s motion to dismiss did so argue. Instead, he asks for a remand to state court, without further discussion. A remand here would be improper, because it would be futile, and because the Court should first decide the threshold issue of standing and decide whether to dismiss this case on that ground. Terrell’s maneuver conflates the distinct questions of jurisdiction and standing. This Court has jurisdiction to determine whether or not Terrell has standing; indeed, that is just what the Court directed the parties to brief. Terrell – unable to sufficiently plead a concrete harm under Article III – declines to answer the Court’s question. His tactical decision to ignore the Court’s question is obvious, because answering it would require him to admit he has not alleged, nor could he allege, any actual injury. His evasive tactic should not be allowed. Terrell asks to have the case remanded to state court, where he hopes to find a more favorable forum for his decidedly federal law claim and where he believes the definition of what constitutes an “injury” is less burdensome. It is not. Tellingly, Terrell cannot cite a single Washington case suggesting otherwise. As Costco explains in its opening brief, remand would be futile and dismissal with prejudice would be proper because Washington standing is analyzed under the same framework as Article III standing. ARGUMENT I. The Court Must Rule on Standing Before Addressing Remand. Whether a plaintiff has Article III standing in federal court is a distinct and wholly separate inquiry from whether there was a basis to remove the case under federal question Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 4 of 9 DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - 2 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 jurisdiction and whether the Court is empowered to rule on the threshold issue of Article III standing. Compare 28 U.S.C. § 1441 (governing bases for removal) and U.S. Const. Art. III, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under . . . the Laws of the United States, and Treaties made.”). Costco properly removed this action based on federal question jurisdiction. No authority (statutory or otherwise) requires Costco to waive the argument that Plaintiff lacks standing in order to properly effect removal. Indeed, as has occurred in other FCRA cases following removal from state court (including several cases Terrell cites in his Opening Brief), this Court should first rule affirmatively on Article III standing before deciding whether to remand or dismiss. As the Ninth Circuit recognized in Lee v. American Nat. Ins. Co., 260 F.3d 997, 1001 (9th Cir. 2001), “[b]efore considering whether we are required to oust from federal court causes of actions that are, indisputably, within both our statutory and our constitutional jurisdiction, we should determine whether there is any need to consider that course at all.” If Terrell were right in supposing that this Court should skip over the threshold standing inquiry, the very purpose for allowing removal of federal claims would be frustrated. If the Court disagrees with Costco and finds that Terrell has Article III standing, Costco would prefer – and is entitled – to litigate this federal question claim in a federal court. Were the Court to remand the case without deciding whether Terrell lacks standing, Costco would lose its right to federal jurisdiction on an issue of federal law. See 28 U.S.C. § 1447(d) (“An order remanding a case to the State court from which it was removed is not reviewable on appeal”); Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1197 (9th Cir. 2016) (finding “Polo’s lack of Article III standing will be law of the case” to avoid any “danger of a jurisdictional ping-pong game in this case”). This jurisdictional gamesmanship by Terrell – who has expressly refused to address the question this Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 5 of 9 DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - 3 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 Court presented – should not be tolerated. For this reason, Costco requests a direct ruling on the question of whether Terrell has standing. This suit arises entirely under federal law, giving this Court original jurisdiction. 28 U.S.C. § 1331. The Court should not muddle Article III standards with the question of whether a matter can be removed under 28 U.S.C. § 1441. Terrell’s cited authorities are wholly distinguishable. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (involving ancillary jurisdiction over post-settlement breach of contract dispute, not federal question); Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) (addressing Chevron deference on immigration issue, not whether court had to determine Article III standing); Mocek v. Allsaints USA Limited, No. 16-C-8484, 2016 WL 7116590 (N.D. Ill. Dec. 7, 2016) (addressing FACTA claim, not FCRA claim as specifically analyzed by Spokeo);1 Black v. Main Street Acquisition Corp., No. 5:11-cv-0577, 2013 WL 1295854 at *1 (N.D.N.Y. Mar. 27, 2013) (addressing whether federal court could review state decision under Rooker-Feldman doctrine or res judicata, not standing). Here, the Court should rule whether Terrell has Article III standing before turning to the issue of remand. See Lee, 260 F.3d at 1002 (“district court may not under § 1447(c) remand a case . . . where there is subject matter jurisdiction”). To hold otherwise would put the cart before the horse. II. Remand Would Be Futile And This Case Should Be Dismissed With Prejudice. Terrell misreads Polo to overrule Bell v. City of Kellogg, 922 F.2d 1418, 1424-25 (9th Cir. 1991). Polo does no such thing. Rather, the Polo court remanded only after determining, pursuant to Bell, that it could not be said “with ‘absolute certainty’ that remand would be futile”. 1 Unlike the parties in Mocek, Terrell (in opposing Costco’s motion to dismiss) has already taken a position that he satisfies Article III standing. Consequently, the parties dispute subject matter jurisdiction and the Court should issue a ruling accordingly. Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 6 of 9 DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - 4 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 833 F.3d at 1199. Here, remand certainly would be futile because Terrell (a) has flouted this Court’s order to address whether he has suffered an injury-in-fact and (b) cannot cite a single Washington holding that he has standing under Washington law or that Washington law allows for more expansive standing than does federal law. This silence on Washington standing law dooms Terrell’s remand argument. Because he has not alleged a concrete harm – nor even attempted to identify an injury-in-fact – this Court should dismiss this case with prejudice, under Bell, because Terrell would likewise lack standing under Washington law. As Costco has explained, Washington courts incorporate federal jurisprudence in assessing “injury-in-fact,” and thus follow the standing requirements solidified by Spokeo and indisputably not satisfied by Terrell. Costco’s Br., Dkt. No. 54 at 5-6; see also Patterson v. Seagle, 171 Wn. App. 251, 260 (Wash. Ct. App. 2012) (dismissing for lack of standing where plaintiff failed to identify concrete harm, finding “a nonspecific and conjectural injury is insufficient to impart standing as an aggrieved party”); Wolverton v. Young, No. 24117- 3-III, 2006 WL 165734, at *4 (Wash. Ct. App. Jan. 24, 2006) (analyzing Article III and Lujan and finding trial court did not err by determining plaintiff lacked standing where she cited only statutory-based nonpecuniary injuries). As detailed in Costco’s Opening Brief (and left unchallenged in Terrell’s), Terrell has not alleged any injury, let alone one sufficient to establish standing under either Article III or Washington law. Consequently, because he lacks standing in either state or federal court, this matter should be dismissed now, with prejudice. Costco requests a ruling that because Terrell has failed to establish a concrete harm sufficient to confer standing, the Complaint must be dismissed in its entirety, with prejudice. /// /// Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 7 of 9 DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - 5 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 DATED this 28th day of April, 2017 WINTERBAUER & DIAMOND PLLC s/ Steven H. Winterbauer__________ Steven H. Winterbauer, WSBA #16468 Winterbauer & Diamond PLLC 1200 Fifth Avenue, Suite 1700 Seattle, WA 98101 Telephone: 206-676-8440 Facsimile: 206-676-8441 Email: mail@winterbauerdiamond.com Attorneys for Defendant Costco Wholesale Corp. Pamela Q. Devata* John Drury* Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, Illinois 60606-6448 Telephone: (312) 460-5000 David Kadue* Seyfarth Shaw LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Courtney S. Stieber* Seyfarth Shaw LLP 620 Eighth Avenue, 32nd Fl. New York, New York 10018 Telephone: (212) 218-5500 *Admitted pro hac vice Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 8 of 9 DEFENDANT'S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. # 52) - 6 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON I hereby certify that on April 28, 2017, 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: Beth E. Terrell, WSBA #26759 Terrell Marshall Law Group PLLC 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 bterrell@terrellmarshall.com E. Michelle Drake Joe Hashmall Berger & Montague, P.C. 43 SE Main Street, Suite 505 Minneapolis, MN 55414 emdrake@bm.net jhashmall@bm.net DATED this 28th day of April, 2017. s/ Bonnie Gail Bonnie Gail Legal Assistant WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, WA 98101 Telephone: 206-676-8440 Facsimile: 206-676-8441 Email: mail@winterbauerdiamond.com 38769526v.4 Case 2:16-cv-01415-JLR Document 57 Filed 04/28/17 Page 9 of 9 COMPENDIUM OF UNREPORTED DECISIONS CITED IN DEFENDANT’S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS - 1 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 The Honorable James L. Robart UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JULIUS TERRELL, as an individual and as a representative of the class, Plaintiff, v. COSTCO WHOLESALE CORP., Defendant. No. 2:16-cv-01415-JLR COMPENDIUM OF UNREPORTED DECISIONS CITED IN DEFENDANT COSTCO WHOLESALE CORPORATION’S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO APRIL 12, 2017 ORDER (DKT. #52) Of counsel Steven H. Winterbauer Pamela Q. Devata (pro hac vice) John Drury (pro hac vice) Courtney S. Stieber (pro hac vice) Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 1 of 21 COMPENDIUM OF UNREPORTED DECISIONS CITED IN DEFENDANT’S RESPONSE BRIEF IN SUPPORT OF ITS MOTION TO DISMISS - 2 2:16-cv-01415-JLR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 WINTERBAUER & DIAMOND PLLC 1200 Fifth Avenue, Suite 1700 Seattle, Washington 98101 Telephone: (206) 676-8440 For the convenience of the Court, Defendant Costco Wholesale Corporation (“Costco”), provides herewith copies of all unreported decisions cited in Costco’s Response Brief in Support of its Motion to Dismiss Pursuant to April 12, 2017 Order (Dkt. #52). Cases Tab Black v. Main Street Acquisition Corp., No. 5:11-cv-0577, 2013 WL 1295854 (N.D.N.Y. Mar. 27, 2013) ..................................... 1 Mocek v. Allsaints USA Limited, No. 16-C-8484, 2016 WL 7116590 (N.D. Ill. Dec. 7, 2016) .............................................. 2 Wolverton v. Young, No. 24117-3-III, 2006 WL 165734 (Wash. Ct. App. Jan. 24, 2006) .................................. 3 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 2 of 21 TAB 1 Compendium - 3 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 3 of 21 Black v. Main Street Acquisition Corp., Not Reported in F.Supp.2d (2013) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2013 WL 1295854 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Susan BLACK, Plaintiff, v. MAIN STREET ACQUISITION CORP.; and Forster & Garbus, LLP, Defendants. No. 5:11–CV–0577 (LEK/DEP). | March 27, 2013. Attorneys and Law Firms James F. Selbach, Selbach Law Firm, PLLC, Liverpool, NY, for Plaintiff. Glenn M. Fjermedal, Davidson, Fink Law Firm, Rochester, NY, for Defendants. DECISION and ORDER LAWRENCE E. KAHN, District Judge. *1 On April 4, 2011, Plaintiff Susan Black (“Plaintiff”) commenced an action in the Supreme Court of the State of New York, County of Onondaga. Dkt. No. 1 (“Notice of Removal”) ¶ 1. On May 24, 2011, Defendants Main Street Acquisition Corporation and Forster & Garbus LLP (collectively, “Defendants”) filed a Notice of removal seeking to remove the state-court action to the United States District Court for the Northern District of New York. Id. On March 29, 2012, Defendants filed a Motion for summary judgment. Dkt. No. 10 (“Motion”). In their Motion, Defendants contend that the Court should dismiss Plaintiff's Amended Complaint with prejudice because: (1) the Court lacks subject-matter jurisdiction based upon the Rooker–Feldman doctrine and principles of res judicata; (2) decisions in two similar actions in Syracuse City Court would have binding effect against Plaintiff in any state-court proceeding that might be brought arising from this claim; (3) Plaintiff has failed to state a viable cause of action; and (4) Plaintiff's failure to pursue or respond to discovery and prosecute this action warrants dismissal of the action with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure. Dkt. No. 10–2 at 2. Plaintiff subsequently filed a Response in opposition to the Motion in which she concedes that the Court lacks subject-matter jurisdiction. Dkt. Nos. 11–12. Defendants, in turn, filed a Reply, reiterating that the Court lacks subject-matter jurisdiction, but also arguing that this matter should be dismissed with prejudice. Dkt. No. 14. Where a court's subject-matter jurisdiction is in doubt, a court must resolve that question first and proceed to the merits of a case only if jurisdiction is established. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93– 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The party asserting that the Court has jurisdiction “bears the burden of proving the Court's jurisdiction by a preponderance of the evidence.” Selvarajah v. U.S. Dep't of Homeland Sec., No. 10 Civ. 4580, 2010 WL 4861347, at *1 (S.D.N.Y. Nov. 30, 2010). In this case, Defendants filed the Notice of removal and therefore initially asserted that the Court had jurisdiction. Notice of Removal ¶ 6 (“This Court has original jurisdiction over this civil action pursuant to 28 U.S.C. § 1331 as the claims arise out of alleged violations of the Federal FDCPA statute codified in 15 U.S.C. § 1692 et seq. as alleged in the First Cause of Action in the Amended Complaint.”). Defendants therefore bear the burden of proving the Court's jurisdiction. Selvarajah, 2010 WL 4861347, at *1. However, instead of offering proof of the Court's jurisdiction, Defendants insist that the Court lacks jurisdiction, and Plaintiff concurs. Therefore, because no party shoulders the burden of proving jurisdiction, the Court finds that it lacks subject-matter jurisdiction to hear this case. Accordingly, this action is sua sponte remanded to the state court pursuant to 28 U.S.C. § 1447(c). IV. CONCLUSION *2 Accordingly, it is hereby: ORDERED, that this matter is REMANDED to the New York State Supreme Court, Onondaga County; and it is further ORDERED, that Defendants' Motion (Dkt. No. 10) for summary judgment is DENIED as moot; and it is further Compendium - 4 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 4 of 21 Black v. Main Street Acquisition Corp., Not Reported in F.Supp.2d (2013) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all parties. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 1295854 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Compendium - 5 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 5 of 21 TAB 2 Compendium - 6 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 6 of 21 Mocek v. Allsaints USA Limited, --- F.Supp.3d ---- (2016) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 7116590 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division. Barbara Mocek, individually and on behalf of all others similarly situated, Plaintiff, v. Allsaints USA Limited, a foreign business corporation, Defendant. No. 16 C 8484 | Signed December 7, 2016 Synopsis Background: Plaintiff filed putative class action in state court alleging that defendant violated Fair and Accurate Credit Transactions Act (FACTA). After removal, defendant moved to dismiss, and plaintiff moved to remand and for attorney fees. Holdings: The District Court, Elaine E. Bucklo, J., held that: [1] remand to state court, rather than dismissal, was warranted, and [2] award of attorney fees and costs was warranted. Plaintiff's motion granted. West Headnotes (4) [1] Courts Exclusive or Concurrent Jurisdiction Even when they adjudicate federal claims, state courts are not restricted by Article III of United States Constitution, although they may have their own standing requirements. U.S. Const. Art. 3, § 2, cl. 1. Cases that cite this headnote [2] Federal Courts Necessity of Objection; Power and Duty of Court Federal court is not required to consider subject matter jurisdiction over all other threshold matters, but instead has leeway to choose among threshold grounds for denying audience to case on merits. 1 Cases that cite this headnote [3] Removal of Cases Want of jurisdiction or of cause for removal Removal of Cases Dismissal of case Remand to state court, rather than dismissal, was warranted following removal of putative class action alleging violations of Fair and Accurate Credit Transactions Act (FACTA), despite defendant's contention that plaintiff lacked standing to bring action, where parties agreed that federal jurisdiction was lacking. Consumer Credit Protection Act § 605, 15 U.S.C.A. § 1681c(g); 28 U.S.C.A. § 1447(c). Cases that cite this headnote [4] Removal of Cases Costs on remand Defendant's professed strategy of removing case on basis of federal jurisdiction, only to immediately turn around and seek dismissal with prejudice on ground that federal jurisdiction was lacking, unnecessarily prolonged proceedings, thus warranting award of attorney fees and costs as part of remand order, where no court had afforded relief sought by defendant under similar circumstances, and defendant's own authority confirmed that remand was mandatory. 28 U.S.C.A. § 1447(c). Cases that cite this headnote Compendium - 7 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 7 of 21 Mocek v. Allsaints USA Limited, --- F.Supp.3d ---- (2016) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Attorneys and Law Firms Benjamin Harris Richman, Courtney Christine Booth, Elizabeth Ann Winkowski, Roger J. Perlstadt, Edelson P.C., Chicago, IL, for Plaintiff. Gregg M. Mashberg, Kristen J. Mathews, Proskauer Rose LLP, New York, NY, Michael Frederik Derksen, Proskauer Rose LLP, Chicago, IL, for Defendant. Memorandum Opinion and Order Elaine E. Bucklo, United States District Judge *1 This putative class action alleging violation of the Fair and Accurate Credit Transactions Act (“FACTA”), 15 U.S.C. § 1681c(g), originated in the Circuit Court of Cook County. Defendant removed the case under 28 U.S.C. § 1441, asserting federal subject matter and diversity jurisdiction. One month later, without alleging any change in circumstances bearing on jurisdiction, defendant moved to dismiss the case for lack of federal jurisdiction. 1 Specifically, defendant asserted that plaintiff lacks standing pursuant to Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), without which there is no justiciable case or controversy— a prerequisite to my exercise of jurisdiction under Article III of the Constitution. In response, plaintiff moved for an order remanding the case to state court pursuant to 28 U.S.C. § 1447(c), which states: “If at any time before final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded.” Plaintiff does not dispute that I lack jurisdiction, emphasizing that it is defendant who bears the burden of establishing federal jurisdiction. In plaintiff's view, remand is required in view of defendant's affirmative disavowal of jurisdiction. In addition to remand, plaintiff seeks to recover the attorneys' fees she incurred in connection with defendant's removal. For the reasons explained below, I grant plaintiff's motion for remand and for attorneys' fees, and I deny defendant's motion to dismiss. I. Neither side believes this case belongs in federal court. Indeed, they agree that I lack jurisdiction over plaintiff's only claim. Their dispute boils down to whether, under these circumstances, I must remand the case to state court or instead dismiss it outright. [1] Although plaintiff's claim arises under federal law, no one questions the state courts' authority to adjudicate it. See ASARCO Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (absent provisions for exclusive federal jurisdiction, state courts are authorized “to render binding judicial decisions resting on their own interpretations of federal law.”). Moreover, even when they adjudicate federal claims, state courts are not restricted by Article III of the Constitution, although they may have their own standing requirements. Id. See also Smith v. Wisc. Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1139 (7th Cir. 1994). Accordingly, plaintiff's ability to satisfy Spokeo does not determine whether she may proceed with her suit in state court. [2] Defendant insists that because federal courts have an independent obligation to satisfy themselves of their own jurisdiction before passing on the merits of a claim, it follows that I must determine whether plaintiff has Article III standing regardless of whether some other threshold matter compels remand. But that argument is belied by Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818 (7th Cir. 2016), a case likewise arising under FACTA, in which the Seventh Circuit declined to address standing under Spokeo, explaining that a federal court is not required to “consider subject matter jurisdiction over all other threshold matters.” Id. at 821. Instead, the court explained, a federal court “has leeway to choose among threshold grounds for denying audience to a case on the merits.” In Meyers, the court concluded that because sovereign immunity—a non-jurisdictional threshold issue—was “easily and readily” resolved in the defendant's favor, it made little sense to waste judicial resources, or those of the parties, resolving the Spokeo issue. Id. The court emphasized that its approach did not run afoul of the Supreme Court's prohibition on “hypothetical jurisdiction,” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), because “jurisdiction is vital only if the court proposes to issue a judgment on the merits.” Meyer, at *3 (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007)) (alteration omitted). Compendium - 8 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 8 of 21 Mocek v. Allsaints USA Limited, --- F.Supp.3d ---- (2016) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 *2 [3] So, too, in this case, the jurisdictional issue is “easily and readily” resolved based on the parties' post- removal agreement that federal jurisdiction is lacking. Indeed, the court remanded to state court sua sponte on that very basis in Black v. Main Street Acquisition Corp., No. 11–cv–0577, 2013 WL 1295854 (N.D.N.Y. Mar. 27, 2013), concluding that when “no party shoulders the burden of proving jurisdiction,” remand is required under § 1447(c). Id. at *1 (declining to dismiss the case with prejudice). Black is consistent with the Seventh Circuit's holding in Meyers that district courts have “leeway” to select among threshold grounds for disposing of a case and should do so in a resource-efficient manner. Because the parties are now aligned in the view that I lack subject-matter jurisdiction, I need not accept defendants' invitation to undertake a Spokeo analysis to conclude that remand is required. At all events, defendant admits that Article III standing in the context of FACTA is “unsettled” after Spokeo, with cases from various jurisdictions coming to disparate conclusions and no controlling authority on point. Def. Opp. at 3. That consideration alone supports remand, as “[a]ny doubt regarding jurisdiction should be resolved in favor of the states.” Doe v. Allied–Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Indeed, as a general matter, federal courts “should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.” Id. Here, plaintiff chose to litigate her FACTA claim in state court, and regardless of whether federal jurisdiction was colorable at the time of removal, the parties now agree that there is none. Section 1447(c) provides the remedy for this state of affairs: I must remand the case to state court. See 28 U.S.C. § 1447(c) ( “If at any time before final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded.”) (Emphasis added). Hopkins v. Staffing Network Holdings, LLC, No. 16– cv–7907, 2016 WL 6462095 (N.D. Ill. Oct. 18, 2016) (Gettleman, J.), is not to the contrary. Indeed, upon concluding that the plaintiff lacked Article III standing, Judge Gettleman remanded the case to state court, noting that remand is “mandatory” under § 1447(c). Id. at *4. Accordingly, he rejected the defendants' request “simply to dismiss the case” outright, which is the relief defendant seeks here. Id. While it is true that Judge Gettleman examined the Spokeo issue—which, unlike in this case, the parties disputed—and concluded that it warranted dismissal, the relief he ordered was remand. Id. Cont'l Cas. Co. v. Southern Co., 284 F.Supp.2d 1118 (N.D. Ill. 2003), and Macon County, Ill. v. Merscorp, Inc., 968 F.Supp.2d 959 (C.D. Ill. 2013), likewise support remand. I note that although the memorandum supporting defendant's motion to dismiss explicitly seeks dismissal with prejudice, and does not limit that relief to a dismissal under Rule 12(b)(6), defendant's counsel acknowledged, at the hearing on plaintiff's motion for remand, that dismissal with prejudice would be inappropriate under Rule 12(b)(1), stating “[s]o we are—we're not saying that you would—that you could dismiss with prejudice based on 12(b)(1), but we are saying if you find that there is no injury in fact in this court, we think that would greatly shorten the proceedings in state court.” 10/13/2016 Tr. at 11. Defendant is correct that “[d]ismissals because of absence of federal jurisdiction ordinarily are without prejudice ... because such a dismissal may improperly prevent a litigant from refiling his complaint in another court that does have jurisdiction.” El v. AmeriCredit Financial Servs., Inc., 710 F.3d 748, 751 (7th Cir. 2013) (internal quotation marks and citation omitted). Accordingly, if defendant seeks dismissal with prejudice, then Rule 12(b)(1) is not an appropriate avenue for that relief. 2 If, on the other hand, defendant seeks dismissal without prejudice, then the only relief to which it is entitled—as its counsel's in-court statement implicitly acknowledges—is remand. *3 Lastly, to the extent counsel's in-court statement suggests that defendant's real objective in pressing the Spokeo issue is to “shorten the proceedings in state court,” I am not inclined to resolve an issue that is not actually in dispute, solely for the purpose of advancing, in some advisory fashion, an argument defendant may wish to make in state court. See Smith v. Wisc. Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1139 (7th Cir. 1994) (“Wisconsin's doctrines of standing and ripeness are the business of the Wisconsin courts, and it is not for us to venture how the case would there be resolved.”). In short, with no party willing to overcome the presumption against federal jurisdiction, remand is appropriate on any analysis. Compendium - 9 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 9 of 21 Mocek v. Allsaints USA Limited, --- F.Supp.3d ---- (2016) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 II. [4] I now turn to plaintiff's request for attorneys' fees. Section 1447(c) authorizes a court to require payment of just costs, including attorney' fees, as part of its remand order. See Martin v. Franklin Capital Corp., 546 U.S. 132, 138, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005); 28 U.S.C. § 1447(c) (“An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”). The Supreme Court explained in Martin that the statute creates no presumption either in favor of or against fee-shifting, but instead strikes a balance that effectuates Congress's intent of allowing removal in appropriate circumstances while reducing “the attractiveness of removal as a method for delaying litigation and imposing costs on the plaintiff.” Id. at 140, 126 S.Ct. 704. In this case, while the federal nature of plaintiff's claim facially entitled defendant to seek a federal forum, defendant's professed strategy of removing the case on the basis of federal jurisdiction, only to turn around and seek dismissal with prejudice—a remedy not supported by any of defendant's cases—on the ground that federal jurisdiction was lacking, unnecessarily prolonged the proceedings. To be clear, there is no question that if defendant wished to litigate the merits of plaintiff's federal claim in a federal forum, it was free to remove the case and seek to establish federal jurisdiction, regardless of whether I may ultimately have concluded that plaintiff lacked standing under Spokeo. See G.M. Sign, Inc. v. Global Shop Solutions, Inc., 430 F.Supp.2d 826 (N.D. Ill. 2006) (rejecting the argument that the defendant could not remove a claim arising under a federal statute until controlling authority affirmatively settled a dispute among lower courts as to whether the claim could be brought in federal court). But defendant did not pursue that avenue. Instead, defendant tried to have it both ways by asserting, then immediately disavowing, federal jurisdiction, apparently in hopes of achieving outright dismissal, with prejudice, rather than the remand required by § 1447(c). As noted above, no court has afforded that relief under similar circumstances, and defendant's own authority confirms that remand is “mandatory.” In short, it should have been obvious to defendant, based on well-settled law, that with no party asking for the merits of plaintiff's claim to be decided in federal court, and both sides arguing against federal jurisdiction, the only possible outcome was for the case to end up right back where it started: in state court. Under these circumstances, I have no trouble concluding that defendant lacked an “objectively reasonable basis for seeking removal.” Martin, 546 U.S. at 141, 126 S.Ct. 704. Accordingly, plaintiff is entitled to recover her attorneys' fees incurred as a result of removal. III. *4 For the foregoing reasons, I grant plaintiff's motion for remand and attorneys' fees and deny as moot defendant's motion to dismiss. Because defendant has not objected to the specific fee amount plaintiff claims, which she supports with evidence in the form of affidavits and billing records, I find that plaintiff is entitled to payment in the amount of $58,112.50 pursuant to § 1447(c). All Citations --- F.Supp.3d ----, 2016 WL 7116590 Footnotes 1 Defendant also moved to dismiss under Fed. R. Civ. P. 12(b)(6), but this portion of their motion has been stayed by agreement pending resolution of the jurisdictional issue. 2 In El, the Seventh Circuit recognized limited circumstances in which dismissal with prejudice may be appropriate in the absence of federal jurisdiction, such as when a frivolous federal claim is the basis for removal. See 710 F.3d at 751 (explaining that because a frivolous claim “will go nowhere in any court,” dismissal with prejudice is appropriate). But defendant does not contend that such circumstances obtain here. Indeed, although defendant challenges the sufficiency of plaintiff's claim under Rule 12(b)(6), it has not gone so far as to argue that her claim is frivolous. That defendant also asserted diversity jurisdiction in its removal papers does not change the analysis. Because standing is an “essential and unchanging part of the of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), it is required in all cases in which a federal court exercises jurisdiction. Compendium - 10 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 10 of 21 Mocek v. Allsaints USA Limited, --- F.Supp.3d ---- (2016) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Compendium - 11 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 11 of 21 TAB 3 Compendium - 12 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 12 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 131 Wash.App. 1020 NOTE: UNPUBLISHED OPINION, SEE WA R GEN GR 14.1 Court of Appeals of Washington, Division 3. Glenda WOLVERTON, an individual taypayer and resident-citizen of Richland; Brandy Leighter, an individual taxpayer and resident-citizen of Kennewick; Mary Mahoney, an individual taxpayer of Kennewick; Leonora Claire Clarke and Joseph David Clarke, husband and wife, married taxpayers of Kennewick; the State of Washington ex rel. Glenda Wolverton, Brandy Leighter, Mary Mahoney, Leonora Claire Clarke, and Joseph David Clarke; and the Cities of Kennewick, Pasco, and Richland ex rel. The Tri–City Animal Control Authority, a Ch. 39 .34 RCW entity formed by interlocal cooperation agreement ex rel. Glenda Wolverton, Brandy Leighter, Mary Mahoney, Leonora Claire Clarke and Joseph David Clarke, on behalf of all taxpayers, residents, and citizens in the Cities of Kennewick, Pasco, and Richland, Appellants, v. Bruce W. YOUNG and Sandy A. Young, in both their individual and official capacities as animal control officers, as well as husband and wife, and the marital community composed thereof; Tri– Cities Animal Care & CONTROL SHELTER (UBI 601–992–382), a Washington nonprofit corporation d/b/a Tri–City Animal Control; Tri–City Animal Control & Sheltering Services (UBI 602–019– 162), a Washington for-profit corporation d/b/ a Tri–City Animal Control; City of Kennewick, a Washington municipal corporation; City of Pasco, a Washington municipal corporation; and City of Richland, a Washington municipal corporation, and Does 1–10, Respondents. No. 24117–3–III. | Jan. 24, 2006. Appeal from Superior Court of Franklin County; Hon. Robert G. Swisher, J. Attorneys and Law Firms Adam Phillip Karp, Attorney at Law, Bellingham, WA, for Appellant. Tyler Moore Morris, City of Kennewick City Attys Ofc., John Stephen Ziobro, Kennewick City Attorney, George Fearing, Attorney at Law, Leland Barrett Kerr, Paine Hamblen Coffin Brooke & Miller LLP, Alicia Marie Berry, Ronald Francis St. Hilaire, Liebler Ivey Connor Berry & St Hilaire, Kennewick, WA, Thomas Oliver Lampson, Attorney at Law, Richland, WA, for Respondent. UNPUBLISHED OPINION THOMPSON, J. * *1 The cities of Pasco, Kennewick, and Richland entered into an interlocal cooperative agreement creating the Tri–City Animal Control Authority (ACA). The ACA contracted with Tri–City Animal Control to provide animal control services. Glenda Wolverton and several other concerned citizens (collectively ‘Ms. Wolverton’) sued Tri–City Animal Control, and its owners, Bruce and Sandy Young (collectively ‘TCAC’), alleging that TCAC improperly and inhumanely performed its animal control services contract. The suit also named Pasco, Kennewick, Richland, and the ACA (collectively ‘the Cities'), alleging that the Cities were responsible for the conduct of TCAC. The Cities and TCAC moved to dismiss the complaint for failure to state a claim, arguing that Ms. Wolverton lacked standing to sue under the interlocal agreement, the contract between ACA and TCAC, the public bidding statutes, and 42 U.S.C. sec.1983. Ms. Wolverton sought leave to amend the complaint to add 10 new claims. The trial court granted the motion to dismiss, concluding that Ms. Wolverton lacked standing as a taxpayer and as a third party beneficiary. The court also denied Ms. Wolverton's motion to amend. Ms. Wolverton appeals. We conclude the court erred by dismissing the complaint because Ms. Wolverton has taxpayer standing to challenge illegal governmental acts. However, we also conclude that the court properly dismissed all of the sec.1983 claims except for those related to Mary Mahoney and Brandy Leighter. Finally, we conclude the court Compendium - 13 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 13 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 abused its discretion by denying Ms. Wolverton's motion to amend. FACTS The cities of Kennewick, Pasco, and Richland entered into an interlocal cooperative agreement creating the ACA. On a rotating basis, one of the three cities is designated as the operating jurisdiction charged with administering the ACA Personal Services Agreement (PSA) with an independent contractor chosen through the competitive bidding process. The operating jurisdiction is also charged with establishing policies for the implementation of an Animal Control Plan (Plan). The Plan provided the basic level of services for impounding and boarding apprehended animals, euthanizing unclaimed animals, and notifying owners of found animals. In 1998, 2001, and 2004, the ACA-through its operating jurisdictionentered into three consecutive PSAs with TCAC. Each of these agreements contained requirements to ensure that animals impounded by TCAC: (1) received treatment and care in conformity with applicable laws and industry standards; (2) were handled humanely; (3) were euthanized in a manner approved by the ACA; and (4) were restored as required by law if injured or abused. The three PSAs also contained provisions requiring the maintenance of records which must be provided or made available to the ACA. On August 11, 2004, Ms. Wolverton and four other plaintiffs filed this action against the three cities, the ACA, the TCAC, the Youngs, and unknown employees of TCAC. A first amended complaint was filed on August 30. The complaint alleges numerous acts of mistreatment and deficient care by TCAC and the Youngs. For example, Ms. Wolverton alleges that TCAC and the Youngs systematically under euthanized impounded animals by using as little as one-third of the required dose, failed to scan cats for microchips, did not provide proper care and treatment of animals, and, since 2001, illegally euthanized or adopted out approximately 300 animals prior to the expiration of the applicable hold period. *2 In her complaint, Ms. Wolverton alleges a breach of contract claim against all defendants, and seeks preliminary and permanent injunctive relief and declaratory relief. The complaint also alleges three claims against the ACA and the Cities: (1) abuse of discretion; (2) avoidance of the 2004–2007 PSA; and (3) negligent administration of the PSAs. Finally, the complaint alleges a claim based on the violation of federal rights against TCAC and the Youngs. On October 15, 2004, Ms. Wolverton filed a motion to amend the complaint to add 10 more claims. The Cities moved to dismiss the complaint for failure to state a claim or, in the alternative, for judgment on the pleadings. The court granted the motion to dismiss, and denied the motion for leave to amend the complaint. Ms. Wolverton sought direct review by the Supreme Court, but the matter was transferred to this court. MOTION TO DISMISS Ms. Wolverton's complaint was not dismissed on summary judgment. Instead, her complaint was dismissed as the result of a consolidated motion based on CR 12(c) for judgment on the pleadings and CR 12(b)(6) for failure to state a claim. We review a trial court's ruling on a motion to dismiss for failure to state a claim de novo. Berst v. Snohomish County, 114 Wn.App. 245, 251, 57 P.3d 273 (2002). Courts should dismiss under this rule only when it appears beyond doubt that no facts justifying recovery exist. Gorman v. Garlock, Inc., 155 Wn.2d 198, 214, 118 P.3d 311 (2005). The allegations of the complaint are presumed to be true for the purpose of the motion. Berst, 114 Wn.App. at 251. And any hypothetical situation raised by the complaint will defeat a CR 12(b)(6) motion if the hypothetical situation is legally sufficient to support the plaintiff's claim. Halvorson v. Dahl, 89 Wn.2d 673, 674–75, 574 P.2d 1190 (1978). Additionally, this court may affirm the lower court's ruling on any basis supported by the record. Wendle v. Farrow, 102 Wn.2d 380, 382, 686 P.2d 480 (1984). (1) Did the court err by concluding that Ms. Wolverton lacked standing to challenge the Cities' illegal acts based solely on her position as a taxpayer? The trial court concluded that Ms. Wolverton lacked standing to challenge illegal acts of the Cities in letting and managing the contracts. In making this decision, the court relied on Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 937 P.2d 1082 (1997). Compendium - 14 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 14 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 In Greater Harbor, the lead opinion, signed by two justices, stated that taxpayer standing required a showing of the violation of a unique right. Greater Harbor, 132 Wn.2d at 281. But none of the other justices concurred on this point. Also, Greater Harbor relied on American Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 802 P.2d 784 (1991), which held that taxpayers must show that the government violated a unique right or interest in order to challenge a government's lawful, discretionary acts. Prior to Greater Harbor, the Washington Supreme Court repeatedly recognized that a taxpayer had standing to challenge illegal governmental acts on behalf of all taxpayers without the need to allege a direct, special, or pecuniary interest in the outcome. State ex rel. Boyles v. Whatcom County Superior Court, 103 Wn.2d 610, 614, 694 P.2d 27 (1985); City of Tacoma v. O'Brien, 85 Wn.2d 266, 269, 534 P.2d 114 (1975); Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994). However, the taxpayers seeking to bring such action must show that the attorney general refused their demand to institute the action or that this request would have been useless. *3 O'Brien, 85 Wn.2d at 269. Hence, Washington has recognized litigant standing to challenge illegal governmental acts on the basis of status as a taxpayer. Boyles, 103 Wn.2d at 614. ‘The recognition of taxpayer standing has been given freely in the interest of providing a judicial forum when this state's citizens contest the legality of official acts of their government.’ Id. We conclude that the holdings in Boyles, O'Brien, and Walker are more persuasive than the split decision in Greater Harbor. We agree that taxpayers have standing to challenge illegal governmental acts on behalf of all taxpayers and need not allege a direct, special, or pecuniary interest in the outcome. We note that other courts have reached the same conclusion. Robinson v. City of Seattle, 102 Wn.App. 795, 805, 10 P.3d 452 (2000) (Division One of this court); Kightlinger v. Pub. Util. Dist. No. 1, 119 Wn.App. 501, 506–07, 81 P.3d 876 (2003) (Division Two of this court), case dismissed, 152 Wn.2d 1001 (2005); Wash. Pub. Trust Advocates ex rel. City of Spokane v. City of Spokane, 117 Wn.App. 178, 182, 69 P.3d 351 (2003). 1 In summary, the trial court erred by concluding that taxpayer status alone was insufficient to confer standing. Ms. Wolverton has standing to challenge illegal governmental acts related to the letting and managing of the contracts without pleading a special injury or violation of a unique right to challenge illegal acts. (2) Did the court err by concluding that Ms. Wolverton lacked standing to challenge discretionary acts of government? The fact that a taxpayer disagrees with a discretionary decision of a governmental authority is insufficient to provide standing to challenge that decision. See In re Petition of City of Bellingham, 52 Wn.2d 497, 499, 326 P.2d 741 (1958). In order to challenge a government's lawful, discretionary acts, the taxpayer must establish that the government violated a unique right or interest that is different from other taxpayers. Am. Legion, 116 Wn.2d at 7–8. Relying on Greater Harbor, the trial court concluded that Ms. Wolverton lacked standing to challenge discretionary acts of the Cities because she failed to establish a special injury. Ms. Wolverton maintains that she has standing to challenge discretionary governmental acts based on special injury. In the alternative, Ms. Wolverton maintains that she need not establish a special injury because Robinson and Kightlinger challenged the court's decision in Greater Harbor. However, Robinson and Kightlinger both involved taxpayer challenges to allegedly illegal governmental acts. As Kightlinger explained, a taxpayer must establish special injury to challenge a government's lawful, discretionary acts, but need not show special injury when challenging an unlawful act. Kightlinger, 119 Wn.App. at 506. Accordingly, Ms. Wolverton lacks standing to challenge the Cities' discretionary acts unless she can demonstrate a special injury. And here, none of the plaintiffs owned an animal that was impounded or mistreated at TCAC. Compendium - 15 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 15 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 *4 Ms. Wolverton maintains that she suffered a concrete aesthetic injury. To support this argument, Ms. Wolverton relies on Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Sierra Club concluded that a plaintiff could establish Article III 2 standing by alleging statutory-based nonpecuniary injuries including injuries that were aesthetic, conservational, or recreational. Sierra Club, 405 U.S. at 738. Significantly, the Sierra Club court also noted that broadening the categories of injury that may support standing was different than abandoning the injury requirement. Id. Lujan concluded that an injury to an aesthetic interest in the observation of animals is sufficient to establish Article III standing. Lujan, 504 U.S. at 566–67. The Lujan court explained that: ‘{T}he person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist.’ Id. at 566. Along similar lines, in Alternatives Research & Development Foundation v. Glickman, 101 F.Supp.2d 7, 11 (D.C.Cir.2000), a researcher challenged a regulation excluding birds, mice, and rats from coverage under the Animal Welfare Act, 7 U.S.C. sec. 2131 et seq. The court granted standing, finding that the researcher's aesthetic interest was injured when she had to observe rats that had been subjected to inadequate food, water, housing, and veterinary care. Glickman, 101 F.Supp.2d at 11. Likewise, in Humane Society of United States v. Hodel, 268 U.S.App. D.C. 165, 840 F.2d 45 (D.C.Cir.1988), the court found an individual had standing to sue the secretary of the interior and the director of the wildlife service for violation of federal acts related to the opening of wildlife refuges on the basis that the individual had visited before and intended to return, which might expose him to animal corpses and environmental degradation. While these cases demonstrate a trend toward broadening categories of injury to support standing, Ms. Wolverton failed to demonstrate that she fits within the categories. Finally, Ms. Wolverton cites two cases for the premise that the pecuniary loss requirement should be excused where the governmental conduct would continue unchecked if taxpayers could not bring a particular suit: Upper Bucks County Vocational–Technical Sch. Ed. Ass'n v. Upper Bucks County Vocational–Technical Sch. Joint Comm., 504 Pa. 418, 422, 474 A.2d 1120 (1984) and City of Wilmington v. Lord, 378 A.2d 635, 638 (Del.1977). Contrary to Ms. Wolverton's assertions, these cases do not hold that the pecuniary loss requirement is completely excused upon a showing that the governmental conduct would continue unchecked. Upper Banks, 504 Pa. at 422; City of Wilmington, 378 A.2d at 638. The trial court did not err by concluding that Ms. Wolverton lacked standing to challenge discretionary acts of government. (3) Did the trial court err by concluding that Ms. Wolverton lacked standing to challenge the issuance of the contract as a bidder and by dismissing her public contract bidding claim? *5 Standing. Ms. Wolverton contends she has taxpayer standing to challenge the bidding procedures on the contract. In her view, taxpayer standing for a bid protest does not require a showing of special or direct injury. In response, the Cities argue that Ms. Wolverton lacks bidder standing. Both parties rely on Dick Enterprises, Inc. v. King County, 83 Wn.App. 566, 922 P.2d 184 (1996). In Dick Enterprises, the court examined whether a plaintiff had taxpayer standing or bidder standing. The Cities rely on the language in Dick Enterprises stating that contract formation is the bright-line cutoff point for bidder standing. 83 Wn.App. at 571. One plaintiff here, Brandy Leighter, was a bidder for the PSA. The Cities maintain that there is no bidder standing here because Ms. Leighter was not lowest bidder and she did not sue before the PSA was signed. But the Cities are discussing bidder standing while Ms. Wolverton seeks taxpayer standing to challenge the award of a bid. To allege taxpayer standing, the plaintiff must show facts supporting taxpayer status, and that the plaintiff pays the taxes funding the subject of the contract and that the attorney general's office was asked to take action prior to the filing of the lawsuit. Id. at 572–73. Moreover, the purposes of competitive bidding are best advanced if lawsuits against performance of public contracts are restricted to plaintiffs with taxpayer standing. Id. at 569–70. The court erred by concluding that Ms. Wolverton lacked taxpayer standing to challenge the bidding procedures. Compendium - 16 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 16 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 Public Contract Bidding Claim. The trial court sua sponte invoked Shaw Disposal, Inc. v. City of Auburn, 15 Wn.App. 65, 546 P.2d 1236 (1976), to deny Ms. Wolverton's claim that municipal bidding ordinances required letting animal control contracts to the lowest bidder. Ms. Wolverton contends Shaw Disposal is inapplicable because it considered a contract in the context of a code city. The Cities contend the public contract bidding claim was properly dismissed because (1) the PSA is a contract for personal services and not subject to public bidding, (2) the Interlocal Cooperation Act (chapter 39.34 RCW) provisions apply and do not require public bidding, (3) if the Kennewick and Richland Codes apply, the cities have discretion in awarding the contract, and (4) the plaintiffs have no standing to challenge the contract award. The Cities also contend that the public bid requirements do not apply to the ACA, but they cite no authority to support this argument. Significantly, RCW 39.34.180 provides that with limited exceptions, no interlocal agreement relieves a public agency of the responsibilities and obligations imposed by law. Ms. Wolverton contends that the PSA is a predominantly nonprofessional service contract requiring the quote to go to the lowest responsible bidder under Richland Municipal Code (RMC) 3.04.120(C). She also contends that, under the RMC, there is a financial limit on the city manager's authority to authorize a contract. The complaint alleges that the PSA should have been awarded to Dan Blasdel, who even the ACA recognized as the undisputed lowest responsible bidder. *6 The court erred by dismissing the public contract bidding claim. Both parties refer to the PSA, which is not a part of the record. Assuming Ms. Wolverton can prove her allegations, she may succeed in her public contract bidding claim. In any event, the arguments presented by the parties cannot be resolved on the pleadings here. (4) Did the court err by concluding that Ms. Wolverton lacked third party beneficiary status? Ms. Wolverton contends that nonparties to a contract may sue for a contractor's breach of duty under the contract, if the parties intend that the promisor assume a direct obligation to the intended beneficiary at the time they enter into the contract. Ms. Wolverton points out that under the PSA, TCAC promised to care for impounded animals and ensure that they were free from inhumane treatment and unlawful disposition. In her view, the plain language of the PSA supports the argument that the animals, their owners, and the plaintiffs here are third party beneficiaries. She maintains that TCAC has a direct obligation to the citizens of Richland, Kennewick, and Pasco to abide by the terms of the PSA. There is a rebuttable presumption that parties enter a contract for their own benefit and not for the benefit of a third party. 25 David K. DeWolf et al., Washington Practice: Contract Law and Practice sec. 12.1, at 239 (1998). To create a third party beneficiary contract, the parties must intend that the promisor assume a direct obligation to the intended beneficiary at the time the contract is executed. Lonsdale v. Chesterfield, 99 Wn.2d 353, 361, 662 P.2d 385 (1983). The terms of the contract must necessarily require a promisee to confer a benefit upon a third party, but the intent of the contract is not a desire or purpose to benefit the third party, but an intent that the promisor assume a direct obligation to him. Vikingstad v. Baggott, 46 Wn.2d 494, 496–97, 282 P.2d 824 (1955). The test to determine whether the parties intended to create a third party beneficiary contract is objective. The contracting parties' intent is determined by construing the terms of the contract as a whole in light of the circumstances under which the contract is made. Am. Pipe & Constr. Co. v. Harbor Constr. Co., 51 Wn.2d 258, 266, 317 P.2d 521 (1957). Ms. Wolverton cannot establish that TCAC assumed a direct obligation to her when the PSA was made. The obligations set forth in the portions of the PSA she cites in her complaint do not imply any attempt by TCAC to assume a direct obligation to the public at large. And none of the plaintiffs owned an animal that was impounded at the TCAC. Ms. Wolverton contends that the PSA was made for the direct benefit of animals as well as their owners. Ms. Wolverton relies on chapter 11.118 RCW which provides that animals can be beneficiaries of trusts. She also points to PSA provisions that detail humane transport, handling, and euthanasia, noting that ACA retained control over the means and methods of performance, particularly with regard to animal treatment and the euthanasia protocol. According to Ms. Wolverton, the PSA provisions demonstrate an intent that the contractor has a direct obligation to the citizens of Richland, Pasco, and Kennewick. Compendium - 17 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 17 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 *7 The PSA is not part of the record, but some provisions are set forth in Ms. Wolverton's complaint. Based on these provisions, Ms. Wolverton and the other plaintiffs cannot be viewed as third party beneficiaries under the PSA because the promisor did not assume a direct obligation to them when the PSA was made. The court did not err by concluding that Ms. Wolverton lacked third party beneficiary standing. (5) Did the court err by dismissing Ms. Leighter's and Ms. Mahoney's claims under 42 U.S.C. sec.1983? To maintain a 42 U.S.C. sec.1983 claim, a plaintiff must establish: (1) that some person deprived him of a federal constitutional or statutory right; and (2) that the person was acting under color of state law. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765 (1992). A public employee acting in his official capacity generally acts under color of state law. Morinaga v. Vue, 85 Wn.App. 822, 833, 935 P.2d 637 (1997). But a purely private party is not subject to liability under sec.1983. See Miguel v. Guess, 112 Wn.App. 536, 550, 51 P.3d 89 (2002). Before the conduct of a private actor can be considered state action for purposes of sec.1983, there must be a sufficiently close nexus between the state and the private actor so that the action of the private actor may be fairly treated as that of the state. Jensen v. Lane County, 222 F.3d 570, 575 (9th Cir.2000). In her 42 U.S.C. sec.1983 claim, Ms. Wolverton alleges violations of federal rights caused by: (1) unreasonable seizure; (2) First Amendment retaliation; (3) deprivation of procedural due process right to property; (4) deprivation of procedural due process right to liberty; (5) deprivation of substantive due process; (6) denial of equal protection; and (7) taking without just compensation. To support this sec.1983 claim, Ms. Wolverton alleges that TCAC and the Youngs: (1) refused to adopt animals to two other pet agencies; (2) banned Ms. Mahoney and Ms. Leighter from entering the facilities and refused them access to review TCAC records; (3) improperly euthanized animals; (4) failed to keep complete records of animal intake and disposition; (5) failed to scan cats for microchips; (6) inhumanely handled animals; and (7) disposed of animals before the expiration of the hold period. Although the trial court did not consider the merits of these claims, most were properly dismissed. First, there is no federal right to adopt animals, and the pet agencies that allegedly attempted to obtain animals from TCAC are not parties to this action. Second, none of the plaintiffs here had animals that were housed or mistreated by TCAC and the plaintiffs do not have standing to bring a claim on behalf of animals. The complaint alleges that Ms. Mahoney and Ms. Leighter were barred from the TCAC facility because they spoke out against TCAC's animal control policies. The complaint also alleges that Ms. Mahoney and Ms. Leighter were denied access to TCAC to examine records. Based on these allegations, the complaint asserts claims based on First Amendment retaliation and equal access. *8 Sufficient facts are alleged with regard to these claims to state a cause of action. In some circumstances, plaintiffs may allege sec .1983 claims for retaliation by state actors who threaten the exercise of their First Amendment rights. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283–84, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Additionally, Ms. Mahoney and Ms. Leighter have alleged sufficient facts indicating that they may have been denied access to TCAC, a public facility, based on distinctions having no rational basis. The equal protection clauses of the state and federal constitutions require that ‘persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ Harmon v. McNutt, 91 Wn.2d 126, 130, 587 P.2d 537 (1978). The Cities maintain that the sec.1983 claims were properly dismissed because there is no evidence that the Youngs were acting under state authority. The question as to whether Mr. Young operated as a state actor cannot be decided in the context of this motion to dismiss. The court erred by dismissing Ms. Mahoney's and Ms. Leighter's sec.1983 claims, but all other sec.1983 claims were properly dismissed. (6) Did the court err by dismissing Ms. Wolverton's claims based on ultra vires, abuse of discretion, and negligent administration of contract? Ms. Wolverton contends the court erred by dismissing her claims based on ultra vires and negligent administration of contract. Compendium - 18 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 18 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 In her ultra vires claim, Ms. Wolverton alleges that the Cities acted beyond the scope of their authority when awarding the contract to TCAC. As indicated above, Ms. Wolverton has taxpayer standing to challenge illegal acts by the Cities. However, Ms. Wolverton also has included claims for negligent administration of contract and abuse of discretion. Ms. Wolverton does not have taxpayer standing to challenge discretionary governmental acts. Hence, these claims were properly dismissed to the extent they are not based on allegations of illegal governmental acts. (7) Did the court err by dismissing Ms. Wolverton's claim for declaratory and injunctive relief? Ms. Wolverton seeks declaratory and injunctive relief. Relief under the Declaratory Judgment Act (chapter 7.24 RCW) is not available unless there is an actual, present, and existing dispute. Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 814–15, 514 P.2d 137 (1973). In addition, the plaintiff must show that the challenged practice or ordinance causes actual concrete harm. Walker v. Munro, 124 Wn.2d 402, 412, 879 P.2d 920 (1994). A party seeking an injunction must show (1) that he or she has a clear legal or equitable right, (2) that he or she has a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of are either resulting in or will result in actual and substantial injury to him or her. The Cities and TCAC contend that Ms. Wolverton's request for injunctive and declaratory relief was properly dismissed because there is no justiciable issue and no pending harm. Because we conclude that some of the claims here should not have been dismissed, and that Ms. Wolverton has standing to pursue these claims, the trial court erred by dismissing Ms. Wolverton's requests for injunctive and declaratory relief. (8) Does this court have jurisdiction? *9 The Cities and TCAC contend the Franklin County Superior Court lacks jurisdiction to hear this matter. They also note that none of the plaintiffs reside in Pasco. Ms. Wolverton points out that the ACA geographically spans both Benton and Franklin Counties. Ms. Wolverton maintains that the ACA does not specify a governing venue. However, according to Ms. Wolverton, the original PSA contained a paragraph stating that the governing forum/venue for disputes under the PSA shall be Franklin County. It is impossible to resolve the jurisdiction issue without copies of the relevant agreements, including the interlocal agreement and the applicable PSAs. This issue cannot be resolved on this record. MOTION TO AMEND COMPLAINT Where a responsive pleading has been filed, a party may amend its pleading by leave of the court, and leave shall be freely given when justice so requires. CR 15(a). The purpose of this rule is to facilitate decisions on the merits, to provide parties with adequate notice of claims and defenses, and to allow amendment of the pleadings unless amendment would prejudice the opposing party. Caruso v. Local Union No. 690 of Int'l Bhd. of Teamsters, 100 Wn.2d 343, 349, 670 P.2d 240 (1983). The ‘touchstone for denial of an amendment is the prejudice such amendment would cause the nonmoving party.’ Id. at 350. Factors considered include undue delay, unfair surprise, and jury confusion. Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 165–66, 736 P.2d 249 (1987). However, a court may also deny a leave to amend the pleadings based on the futility of the amendment or the repeated failure of a party to cure deficiencies in prior amendments. Culpepper v. Snohomish County Dep't of Planning & Cmty. Dev., 59 Wn.App. 166, 796 P.2d 1285 (1990). A trial court's denial of a motion to amend pleadings is reviewed for an abuse of discretion. Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999). In its memorandum decision, the trial court noted Ms. Wolverton's representation that if granted leave to amend, she would have standing to bring this action on behalf of animals. The court dismissed the motion to amend, concluding that animals do not have standing absent a statute expressly permitting animals to sue on their own behalf. The court made no finding that the other parties would be prejudiced if the amendments were allowed. Ms. Wolverton contends that standing to sue as next friends seeking to enforce anticruelty laws on behalf of impounded animals may be implied from state statutes and the Cities' ordinances. She maintains that humans may serve as plaintiffs on behalf of animals and that Compendium - 19 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 19 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 Washington case law implies that animals may sue in their own name. Moreover, she asserts that taxpayer standing should apply here as animals are mistreated with public monies even though the statutes imply enforceable obligations. Ms. Wolverton relies on Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir.2004), and Bennett v. Hardy, 113 Wn.2d 912, 784 P .2d 1258 (1990). In Cetacean Community, the Ninth Circuit concluded that while animals could be granted statutory standing, animals did not have standing under the Endangered Species Act, the Administrative Procedure Act, the Marine Mammal Protection Act, or the National Environmental Protection Act. Cetacean Cmty., 386 F .3d at 1179. In Bennett, the court found an implied cause of action for age discrimination under RCW 49.44.090. Bennett, 113 Wn.2d at 921. Ms. Wolverton asks this court to find an implied cause of action for animals under several different Washington statutes dealing with animals and animal cruelty. *10 Ms. Wolverton cites no cases where a court found an implied cause of action for animals. The trial court did not err by concluding that Ms. Wolverton lacked next friend status to sue on behalf of animals. In her motion to amend, Ms. Wolverton requested leave to add 10 claims and to ‘add or modify factual, jurisdiction, and venue allegations, causes of action, and prayers for relief consistent with the above ten (10) material amendments.’ Clerk's Papers at 40. Ms. Wolverton did not attach a proposed amended complaint to her motion. 3 Ms. Wolverton sought leave to amend her complaint to include the following 10 claims: violation of public trust; maintaining illegal contract against public policy; writ of review/certiorari of Franklin County district court decision; constitutionality of Pasco Municipal Code 8.02.170; writ of review/certiorari of Pasco municipal court decision in its motion to amend; violation of the Animal Welfare Act; taxpayer derivative suit; equitable relief claim; formalize the addition of new plaintiffs; and negligence claim to include prayer for money damages. The trial court dismissed the complaint based on standing, and then denied the motion for leave to amend based on standing. Because we conclude the court erred by granting the motion to dismiss, we also conclude the court abused its discretion by denying the motion to amend. At this point in the proceeding, Ms. Wolverton should be allowed to amend her complaint. Additionally, we note that the amendments will be easier to evaluate when incorporated into the complaint. ATTORNEY FEES Ms. Wolverton requests an award of fees under RAP 18.1 on the basis that she is acting as a private attorney general preserving the common fund and conferring a substantial benefit on taxpayers by challenging the unconstitutional expenditure of public funds. There are four recognized equitable grounds for awards of attorney fees: (1) bad faith conduct of the losing party; (2) preservation of a common fund; (3) protection of constitutional principles; and (4) private attorney general actions. Miotke v. City of Spokane, 101 Wn.2d 307, 338, 678 P.2d 803 (1984). These equitable grounds are not applicable here. We deny Ms. Wolverton's request for fees. CONCLUSION We conclude that Ms. Wolverton and the other plaintiffs have taxpayer standing to challenge illegal governmental acts. We affirm with the trial court's decision that the plaintiffs lack standing to challenge the Cities' discretionary acts and lack standing as third party beneficiaries. Likewise, the court properly dismissed all of the sec.1983 claims except for those relating to Ms. Mahoney and Ms. Leighter. However, we conclude the trial court erred by dismissing the remaining claims in the complaint. We also conclude the trial court abused its discretion by denying the motion for leave to amend. However, we agree with the trial court that Ms. Wolverton lacks standing to proceed with any claim on behalf of the animals. We deny Ms. Wolverton's request for attorney fees. *11 Affirmed in part; reversed in part. A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040. WE CONCUR: KATO, C.J., and SCHULTHEIS, J. Compendium - 20 Case 2:16-cv-01415-JLR Document 57-1 Filed 04/28/17 Page 20 of 21 Wolverton v. Young, Not Reported in P.3d (2006) 131 Wash.App. 1020 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 9 All Citations Not Reported in P.3d, 131 Wash.App. 1020, 2006 WL 165734 Footnotes * Judge Philip J. Thompson is serving as judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150. 1 TCAC contends that Ms. Wolverton failed to comply with the holding in Washington Public Trust that taxpayer derivative suits must be brought in the name of the taxpayer on behalf of other taxpayers similarly situated. Wash. Pub. Trust, 117 Wn.App. at 182. But Ms. Wolverton points out in her reply brief that this problem was corrected in her first amended complaint. 2 U.S. Const. art. III, sec. 2, cl. 1. 3 Former CR 15(a) (1967) did not require the filing of a proposed amended complaint with the motion for leave to amend. End of Document © 2017 Thomson Reuters. 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