United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion for Summary Judgment
by Defendants Daniel Jensen, Ricci Frisk and Donald Capp.
Dkt. #166. The Court has previously dismissed or
granted summary judgment in favor of 26 of the 29 defendants
that Plaintiff sued for their involvement with the
foreclosure of a property he previously owned. The remaining
Defendants-Defendant Jensen, Defendant Frisk, and Defendant
Capp-are all employees of the State of Washington. Plaintiff
alleges that Defendants deprived him of due process because
they informed him that his requests for state administrative
review failed. Defendants argue that Plaintiff's claims
fail precisely because, as they informed him at the time, he
did not have a right to administrative review. Plaintiff does
not oppose the Motion. For the following reasons, the Court
grants the Motion.
case centers around a property that Plaintiff owned before
transferring 100% of his ownership to a Limited Liability
Company he had an interest in, the “Williams Family
Holdings LLC, ” on August 3, 2005. Dkt. #123-1 at 2.
The LLC obtained a loan secured by the property but fell
behind on payments. Dkt. #111 at 2-13, 17-33; Dkt. #3 at
¶ 34. Plaintiff attempted to prevent foreclosure by
personally filing for bankruptcy, but the foreclosure of the
property proceeded. Dkt. #111 at 15, 37-39. As a part of the
foreclosure, and on September 22, 2009, a Real Estate Excise
Tax Affidavit (“REET Affidavit”) was filed on a
Washington State Department of Revenue (“DOR”)
form. Dkt. #168-1 at 11-12.
the foreclosure occurring in 2009, Plaintiff began pursuing
the claims of this action in November of 2017. Dkt. #167 at
¶ 2; Dkt. #168 at ¶ 2. To that end, Plaintiff
contacted the DOR, asserting that the REET Affidavit was
filed in violation of an automatic bankruptcy stay and
requesting that DOR review and take corrective action. Dkt.
#168-1 at 2-13. Defendant Jensen, a DOR employee, responded
with two letters indicating generally that DOR could only
review actions taken by DOR. Dkt. #168-1 at 15. Because DOR
had not taken any action related to the REET Affidavit
filing, DOR denied Plaintiff's request for review or
corrective action. Id.
Plaintiff contacted the Washington State Office of
Administrative Hearings (“OAH”). Dkt. #167 at
¶ 2. Plaintiff requested an administrative hearing and
any forms necessary for initiating one. Dkt. #167-1 at 2-3.
In response, and following several other communications,
Defendant Capp sent Plaintiff a letter. Dkt. #167-1 at 5. The
letter memorialized telephone conversations between Defendant
Frisk and Plaintiff and explained that OAH did not hold
hearings related to actions taken by the City of Seattle or
its police department and that administrative hearings were
initiated with the agency that had acted. Id.
later commenced this action, alleging that Defendants had
denied him administrative review, due process, and
“honest service.” Dkt. #3 at ¶¶ 224-27,
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). Material facts are those which
might affect the outcome of the suit under governing law.
Anderson, 477 U.S. at 248. In ruling on summary
judgment, a court does not weigh evidence to determine the
truth of the matter, but “only determine[s] whether
there is a genuine issue for trial.” Crane v.
Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing
Federal Deposit Ins. Corp. v. O'Melveny &
Meyers, 969 F.2d 744, 747 (9th Cir. 1992)).
motion for summary judgment, the court views the evidence and
draws inferences in the light most favorable to the
non-moving party. Anderson, 477 U.S. at 255;
Sullivan v. U.S. Dep't of the Navy, 365 F.3d
827, 832 (9th Cir. 2004). However, the non-moving party must
present significant and probative evidence to support its
claim or defense. Intel Corp. v. Hartford Accident &
Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
“The mere existence of a scintilla of evidence in
support of the [non-moving party's] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 251. Uncorroborated
allegations and self-serving testimony will not create a
genuine issue of material fact. Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002);
T.W. Elec. Serv. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Rather,
the non-moving party must make a “sufficient showing on
[each] essential element of her case with respect to which
she has the burden of proof” to survive summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
plaintiff fails to respond to a motion for summary judgment,
the court may not grant the motion as a matter of course.
Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir.
2013) (“[A] motion for summary judgment may not be
granted based on a failure to file an opposition to the
motion.”); Henry v. Gill Indus., Inc., 983
F.2d 943, 950 (9th Cir. 1993). “Rule 56 requires
district courts to assess whether ‘the motion and
supporting materials' entitle the movant to summary
judgment.” Heinemann, 731 F.3d at 916 (quoting
Fed.R.Civ.P. 56(e)(3). However, “the opposing
party's failure to respond to a fact asserted in the
motion permits a court to ‘consider the fact undisputed
for purposes of the motion.'” Id. (quoting