Moore et al v. Urquhart et al

Filing 45

ORDER by Judge Thomas S. Zilly granting defendant's 11 Rule 12(c) Motion for judgment on the pleadings; striking as moot plaintiffs' 13 Motion for leave to amend their pleading to join additional plaintiffs, plaintiffs' 15 Motion to certify a class and defendant's 25 Motion to stay plaintiffs' motion for class certification. (PM) cc: Office of the Attorney General of the State of WA via U.S. Mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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EVA MOORE, BROOKE SHAW,
CHERRELLE DAVIS, and NINA
DAVIS, individually and on behalf of
all others similarly situated,
Plaintiffs,

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v.

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ORDER

JOHN URQUHART, in his official
capacity as KING COUNTY SHERIFF,

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C16-1123 TSZ

Defendant.
THIS MATTER comes before the Court on defendant King County Sheriff John
Urquhart’s motion for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c), docket no. 11. In this matter, plaintiffs challenge the constitutionality of
RCW 59.18.375, which sets forth “optional” and additional procedures and remedies
concerning writs of restitution available in forcible entry or unlawful detainer actions.
See Am. Compl., Ex. A to Notice of Removal (docket no. 1-1). On November 18, 2016,
the Court notified the Attorney General of the State of Washington about plaintiffs’
constitutional challenge, as required by Federal Rule of Civil Procedure 5.1(b) and
28 U.S.C. § 2403(b), and set a deadline of January 20, 2017, for the State of Washington

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1 to intervene in this matter. See Order (docket no. 43). Because the Court concludes that
2 plaintiffs cannot pursue their constitutional challenge in this forum or against Sheriff
3 Urquhart, the Court hereby GRANTS Sheriff Urquhart’s Rule 12(c) motion without
4 waiting for the State of Washington to indicate whether it will intervene. See Fed. R.
5 Civ. P. 5.1(c).
6 Background
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According to the Amended Complaint, plaintiffs Eva Moore and Brooke Shaw

8 reside in rental housing located in Kent, Washington, and were each served with a writ of
9 restitution, while plaintiffs Cherrelle Davis and Nina Davis are currently homeless, but
10 previously lived in rental housing located in Federal Way, Washington, from which they
11 were evicted after being served with a writ of restitution. Plaintiffs allege that they all
12 filed responses to the respective summons and complaint in the related unlawful detainer
13 actions, and that the writs of restitution they received did not inform them of any right to
14 a hearing prior to eviction.1 See Am. Compl. at ¶¶ 20-21 & 26-27 (docket no. 1-1).
Plaintiffs contend that the procedures set forth in Washington’s Residential

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16 Landlord-Tenant Act (“RLTA”) for obtaining a writ of restitution allow for eviction
17 without a hearing, and therefore violate the Due Process Clause of the Fourteenth
18 Amendment of the United States Constitution, as well as Article I, Section 3 of the
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In support of the Rule 12(c) motion, counsel for Sheriff Urquhart has submitted various documents
associated with the underlying unlawful detainer actions. See Exs. 1-20 to Motion (docket nos. 11-2
through 11-21). The Court DECLINES to consider these materials because doing so might require the
22 pending motion to be treated as one for summary judgment. See Fed. R. Civ. P. 12(d).

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1 Washington State Constitution.2 In this litigation, plaintiffs seek certification of a class,
2 declaratory relief, and an injunction prohibiting Sheriff Urquhart from serving and
3 enforcing writs of restitution, as well as nominal damages, attorney’s fees, and costs in
4 connection with their claim under 42 U.S.C. § 1983.
5 Discussion
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In deciding a Rule 12(c) motion, the Court must inquire whether the operative

7 complaint contains “sufficient factual matter, accepted as true, to state a claim of relief
8 that is plausible on its face.” Harris v. Cnty. of Orange, 682 F.3d 1126, 1131 (9th Cir.
9 2012). A claim is plausible when a plaintiff alleges enough facts to permit the Court to
10 draw a reasonable inference of misconduct; the Court is not, however, required to accept
11 as true any legal conclusions set forth in the pleadings. Id. A dismissal under Rule 12(c)
12 with prejudice and without leave to amend is appropriate if the complaint cannot be cured
13 by amendment. Id. In this matter, the viability of plaintiffs’ claim turns on the nature of
14 their constitutional challenge (i.e., facial or as applied), and on whether they have named
15 an appropriate defendant.
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In analyzing a procedural due process claim, the Court must consider the factors

17 articulated in Mathews v. Eldridge, 424 U.S. 319 (1976). See Cleveland Bd. of Educ. v.
18 Loudermill, 470 U.S. 532, 542-43 (1985); Curlott v. Campbell, 598 F.2d 1175, 1181 (9th
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The Washington State Constitution provides that “[n]o person shall be deprived of life, liberty, or

20 property, without due process of law.” WASH. CONST. art. I, § 3. Plaintiffs do not assert, and thus, the
Court need not address whether, Article I, Section 3 provides greater due process protections than its

21 federal counterpart. See, e.g., State v. Jordan, 180 Wn.2d 456, 462, 325 P.3d 181 (2014) (indicating that
Article I, Section 3 has been treated as coextensive with the Due Process Clause of the Fourteenth
22 Amendment, and observing that the litigants had provided no analysis under State v. Gunwall, 106 Wn.2d
54, 720 P.2d 808 (1986), to suggest a different view).

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1 Cir. 1979); see also Amunrud v. Bd. of Apps., 158 Wn.2d 208, 216, 143 P.3d 571 (2006).
2 The Court must weigh (i) the nature of the private interest affected by the government
3 action, and (ii) the risk of erroneous deprivation of such interest through the procedures
4 used, as well as the probable value of additional or substitute safeguards, against (iii) the
5 interest of the government, including the fiscal or administrative burdens that additional
6 or different procedural requirements would entail. See Mathews, 424 U.S. at 335. A pre7 deprivation hearing is required only if full relief cannot be obtained at a post-deprivation
8 hearing. See id. at 331; Curlott, 598 F.2d at 1181; see also Loudermill, 470 U.S. at 547
9 (holding that, with respect to a public employee who may be discharged only for cause,
10 “all the process that is due is provided by a pretermination opportunity to respond,
11 coupled with post-termination administrative procedures”).
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The RLTA sets forth the process by which a landlord may institute an unlawful

13 detainer action and seek to have a tenant evicted. See RCW 59.18.365. In connection
14 with an unlawful detainer action, a landlord may also apply “for an order directing the
15 defendant to appear and show cause, if any he or she has, why a writ of restitution should
16 not issue restoring to the plaintiff possession of the property in the complaint described.”
17 RCW 59.18.370. The statute requires the show cause hearing to be conducted not less
18 than seven (7) nor more than thirty (30) days after the date that the show cause order is
19 served on the tenant. Id. The show cause order must notify the tenant that if he or she
20 fails to appear and show cause “at the time and place specified,” the court presiding over
21 the unlawful detainer action may order the sheriff to restore possession of the property to
22 the landlord. See id.
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1

In a separate provision, the RLTA indicates two ways in which a tenant can avoid

2 issuance of a writ of restitution: (i) by payment of the rent allegedly due into the registry
3 of the court, or (ii) by submission of a written, sworn statement setting forth a reason why
4 the alleged rent is not owed. See RCW 59.18.375(2). This section of the RLTA further
5 provides that “[f]ailure of the defendant to comply with this section shall be grounds for
6 the immediate issuance of a writ of restitution without further notice to the defendant and
7 without bond directing the sheriff to deliver possession of the premises to the plaintiff.”
8 RCW 59.18.375(4) (emphasis added). If a writ of restitution is issued, a tenant “may
9 seek a hearing on the merits and an immediate stay of the writ of restitution” by making
10 an offer of proof that the landlord is not entitled to possession of the property for legal or
11 equitable reasons. Id.
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The RLTA also requires that, “[a]t the time and place fixed for the hearing of

13 plaintiff’s motion for a writ of restitution,” the court “shall examine the parties and
14 witnesses orally to ascertain the merits of the complaint and answer.” RCW 59.18.380.
15 The statute creates a “mandatory duty” on the part of the court presiding over the
16 unlawful detainer action to examine the parties and witnesses; such examination is “not a
17 formality,” but rather forms “the basis for the issuance of the writ [of restitution]
18 pendente lite.” Housing Auth. of City of Pasco & Franklin Cnty. v. Pleasant, 126 Wn.
19 App. 382, 391, 109 P.3d 422 (2005). The language in RCW 59.18.375(4), indicating that
20 a tenant’s failure to comply constitutes grounds for issuance of a writ of restitution
21 without further notice, does not supplant the hearing requirement articulated in
22 RCW 59.18.380. See Pleasant, 126 Wn. App. at 395 (“The pendente lite writ of
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1 restitution was issued on incompetent evidence and without examination of the parties
2 and witnesses as required by statute.” (emphasis added)). The word “further,” as used in
3 RCW 59.18.375(4), contemplates that notice has already been provided to the tenant, in
4 the form of a show cause order fixing a date and time for a hearing, and that additional
5 notice to the tenant will not be required if the tenant does not timely take one of the steps
6 enumerated in RCW 59.18.375(2). See Webster’s Third New Int’l Dictionary 924 (1981)
7 (“further” means “in addition : MOREOVER” or “going or extending beyond what exists :
8 ADDITIONAL”); see also ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203, 1210 (9th
9 Cir. 2015) (statutes are generally construed “to give every word some operative effect”).
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In their operative pleading, plaintiffs appear to contend that no show cause order

11 was obtained or served by their respective landlords, as required by RCW 59.18.370, that
12 no show cause (or pre-deprivation) hearing was scheduled or conducted before the writs
13 of restitution in question were issued, as required by RCW 59.18.370 and .380, and that
14 the writs of restitution in question did not advise plaintiffs of their rights to seek a “post15 deprivation” hearing and a stay of execution. With regard to the first two assertions,
16 plaintiffs do not present a facial, but rather an as-applied, constitutional challenge. With
17 respect to issuance of writs of restitution, the RLTA sets forth pre-deprivation safeguards
18 that would satisfy the Mathews balancing test and the requirements of the Due Process
19 Clause of the Fourteenth Amendment of the United States Constitution, as well as
20 Article I, Section 3 of the Washington State Constitution. Plaintiffs essentially allege,
21 however, that their respective landlords and the King County Superior Court failed to
22 comply with the RLTA in connection with the issuance of the writs of restitution in
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1 question. At most, this claim presents an as-applied constitutional challenge, and it might
2 raise merely an issue of statutory interpretation and/or violation.
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As to their third allegation that the writs of restitution served on them did not

4 inform them about “post-deprivation” procedures, whether plaintiffs are criticizing a
5 statutory form of notice or a document prepared by their respective landlords and
6 presented to the King County Superior Court is unclear. The RLTA contains a form of
7 notice, titled “Payment or Sworn Statement Requirement,” that a landlord must serve on
8 a tenant, separate from the summons and complaint in the unlawful detainer action,
9 which describes the requirements of RCW 59.18.375. See RCW 59.18.375(7). This
10 statutory form does not include any explanation concerning “post-deprivation” hearings
11 or stays of writs of restitution. In their operative pleading, plaintiffs do not explicitly
12 attack the statutory form (which is not itself a writ of restitution), but rather seem to
13 challenge the writs of restitution, which would have been proposed by their respective
14 landlords and issued by the King County Superior Court. Regardless of whether the
15 “Payment or Sworn Statement Requirement” forms plaintiffs received or the writs of
16 restitution in question are the subject of plaintiffs’ constitutional claim, plaintiffs do not
17 contend that the RLTA fails to offer an opportunity for at least post-deprivation review;
18 they simply state they were not told about the RLTA’s provisions.
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Plaintiffs have not raised the type of facial constitutional challenge necessary to

20 invoke the doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), and its progeny,
21 pursuant to which they might proceed on a claim against Sheriff Urquhart under
22 42 U.S.C. § 1983. When executing a writ of restitution (or other order or judgment)
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1 issued by a state court, a sheriff and his or her deputies act as state, and not county,
2 officials for purposes of Eleventh Amendment immunity. See Gottfried v. Med. Planning
3 Servs., Inc., 280 F.3d 684, 692-93 (6th Cir. 2002); McCurdy v. Sheriff of Madison Cnty.,
4 128 F.3d 1144 (7th Cir. 1997); Scott v. O’Grady, 975 F.2d 366, 369-71 (7th Cir. 1992);
5 Weissbrod v. Housing Part of Civil Ct. of N.Y.C., 293 F. Supp. 2d 349, 354 (S.D.N.Y.
6 2003). Under the reasoning of Ex Parte Young, a state official may be sued,
7 notwithstanding the Eleventh Amendment, if the constitutionality of the state law
8 pursuant to which the state official has taken or will take action is challenged. See
9 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984); see also Long v.
10 Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992) (Ex Parte Young requires “a connection
11 between the official sued and enforcement of the allegedly unconstitutional statute” and
12 “a threat of enforcement”); cf. L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.
13 1992) (observing that declaratory relief sought under Ex Parte Young “may not be
14 premised on a wholly past violation of federal law,” and must instead “serve the federal
15 interest in assuring future compliance with federal law”).
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The theory of Ex Parte Young is that “an unconstitutional enactment is ‘void’ and

17 therefore does not ‘impart to [the officer] any immunity from responsibility to the
18 supreme authority of the United States.’” Pennhurst, 465 U.S. at 102 (alteration in
19 original, quoting Ex Parte Young, 209 U.S. at 160). If a state may not, consistent with
20 the United States Constitution, by statute authorize the action at issue, the state may not
21 clothe its officials in immunity from the consequences of such conduct. See id. The
22 Ex Parte Young exception to sovereign immunity does not apply in this case because the
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1 allegedly unconstitutional activity was not in conformance with, but rather in breach of,
2 the state statute, see id. at 103-25 (holding that, in the absence of a state’s consent or
3 waiver, the Eleventh Amendment precludes a federal court from awarding injunctive
4 relief against such state’s officials on the basis of state law), and Sheriff Urquhart is not
5 an appropriate defendant because he played no role in circumventing the show cause
6 hearing requirements of the RLTA.
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Plaintiffs’ § 1983 claim against Sheriff Urquhart must be dismissed, but the

8 question is whether such dismissal should be with or without prejudice. Plaintiffs cannot
9 cure their pleading by naming a different defendant. Their respective landlords are not
10 state actors as required by 42 U.S.C. § 1983, and the King County Superior Court, its
11 judges, and its commissioners are not subject to suit under § 1983, see Pierson v. Ray,
12 386 U.S. 547, 554-55 (1967) (citing Bradley v. Fisher, 80 U.S. 335 (1871)). Moreover,
13 plaintiffs cannot now and in this forum raise the concerns about the writs of restitution
14 that they should have presented on appeal from the final decisions in the unlawful
15 detainer actions. See Dist. of Columbia Ct. of Apps. v. Feldman, 460 U.S. 462, 482
16 (1983) (“a United States District Court has no authority to review final judgments of a
17 state court in judicial proceedings”); Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16
18 (1923); Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001)
19 (purpose of the Rooker-Feldman doctrine is “to protect state judgments from collateral
20 federal attack”). Finally, to the extent that plaintiffs wish to prospectively require King
21 County Superior Court judges and commissioners to schedule and conduct the show
22 cause hearings envisioned by RCW 59.18.370 and .380, their claim seems to be in the
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1 nature of mandamus, as to which this Court does not have jurisdiction. See Clark v. State
2 of Washington, 366 F.2d 678, 682 (9th Cir. 1966) (“federal courts are without power to
3 issue writs of mandamus to direct state courts or their judicial officers in the performance
4 of their duties”); compare WASH. CONST. art IV, § 4; State ex rel. Edelstein v. Foley, 6
5 Wn.2d 444, 107 P.2d 901 (1940). Because the deficiencies in plaintiffs’ operative
6 complaint cannot be rectified, judgment on the pleadings will be entered in favor of
7 Sheriff Urquhart.
8 Conclusion
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For the foregoing reasons, defendant’s Rule 12(c) motion for judgment on the

10 pleadings, docket no. 11, is GRANTED. In light of the Court’s ruling, plaintiffs’ motion
11 for leave to amend their pleading to join additional plaintiffs, docket no. 13, plaintiffs’
12 motion to certify a class, docket no. 15, and defendant’s motion to stay plaintiffs’ motion
13 for class certification, docket no. 25, are STRICKEN as moot. The Clerk is DIRECTED
14 to enter judgment consistent with this Order, to send a copy of this Order to all counsel of
15 record, as well as to the Office of the Attorney General of the State of Washington, at
16 1125 Washington St. SE, P.O. Box 40100, Olympia, WA 98504-0100, and to CLOSE
17 this case.
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IT IS SO ORDERED.

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Dated this15th day of December, 2016.

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Thomas S. Zilly
United States District Judge

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