Petition for Writ of Certiorari — Susan Pierson, Petitioner v. Hudson Insurance Company, et al.

Supreme Court briefApr 26, 2021

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No. 20In the

Supreme Court of the United States

SUSAN PIERSON,

Petitioner,

HUDSON INSURANCE COMPANY,

A NEW YORK CORPORATION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States District Court for the Western District of

Washington at Seattle

PETITION FOR A WRIT OF CERTIORARI

William Johnston

Counsel of Record

401 Central Avenue

Bellingham, WA 98225

(360) 676-1931

wjtj47@gmail.com

Counsel for Petitioner

303175

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

Issue 1. Did the resolution of the tort claim against

Thorne in Pearson v. Thorne decide the same issue or

claim that plaintiff raises in the present suit against

Hudson, such that the present lawsuit is barred by

collateral estoppel? No.

Issue 2. As it relates to the litigation in the prior

lawsuit, is Hudson in privity with Thorne to be able to

avail itself of the affirmative defense of issue and/or claim

preclusion? No.

Issue 3. Collateral estoppel is not to be applied when

the result is against public policy. Plaintiff alleges that

the failure of Hudson to write a waiver of the sovereignty

defense into its policies (up to the limit of the policy) is

a pattern of conduct that nullifies the operation of 25

USC 5321 (c) (3) (A), thereby depriving tort victims of

the recovery that Congress intended should be available.

Hudson has never answered this allegation, instead

urging the court to stretch collateral estoppel to prevent

plaintiff from exposing an illegal and lucrative practice

of collecting premiums for liability policies under which

it is very unlikely that any plaintiff will be able to obtain

a recovery. Because the plaintiff has never had a full and

fair opportunity to litigate this claim, does public policy

require allowing plaintiff to go forward with her claim

against Hudson in the present case? Yes.

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Appellant Susan Pierson, a resident of Washington

State, is the appellant in this Court. She was the plaintiff

in the United States District Court for the Western

District of Washington.

Hudson Insurance, a New York corporation is the

respondent in this Court and was the defendant before

the United States District Court for the Western District

of Washington.

iii

PARTIES TO PROCEEDING

AND RELATED CASES

Parties Defendant in this case:

Hudson Insurance Company, a New York Corporation,

Ody s sey R ei n su r a nce Compa ny, a Con nec t ic ut

corporation, Odyssey Re Holdings Corp; a Delaware

corporation, Alliant Insurance Services Inc., a California

corporation, and Alliant Specialty Insurance Services

Inc., a California Corporation, a subsidiary of Alliant

Insurance Services Inc.,a California corporation, dba

Tribal First, Defendants.

Susan Pierson, Plaintiff, v. Hudson Insurance

Company, a New York Corporation, Odyssey Reinsurance

Company, a Connecticut corporation, Odyssey Re Holdings

Corp, a Delaware corporation, Alliant Insurance Services

Inc., a California corporation, and Alliant Specialty

Insurance Services Inc., a California Corporation, a

subsidiary of Alliant Insurance Services Inc.,a California

corporation, dba Tribal First, Defendants; United States

Court of Appeals for the Ninth Circuit, Cause No. 2025185 decided December 17, 2020.

Susan Pierson, Plaintiff v. Hudson Insurance Company,

a New York Corporation, Odyssey Reinsurance Company,

a Connecticut corporation, Odyssey Re Holdings Corp, a

Delaware corporation, Alliant Insurance Services Inc., a

California corporation, and Alliant Specialty Insurance

Services Inc., a California Corporation, a subsidiary of

Alliant Insurance Services Inc., a California corporation,

dba Tribal First, United States District Court for the

Western District of Washington at Seattle, Cause No.

C19-0289-JCC decided February 6, 2020.

Susan Pearson, a single person v. Director of the

Department of Licensing, a subdivision of the State of

Washington, in his/her official capacity and J. Schwahn,

H. Kleinman, M. Radley, A. Thorne, Larry Yonally, Tribal

Officers and General Authority Police Officers Pursunt to

RCW. 10.92 in their official capacity and in their individual

capacity and all officers , now unknown, who were involved

in the seizure and forfeiture of 1999 GMC S-10 pickup

truck, defendants, United States District Court for the

Western District of Washington at Seattle, Cause No.

C15-0731-JCC, decided June 20, 2016.

Candee Washington v. Washington State Department

of Licensing, Skagit County Superior Court dismissed on

July 2, 2015; dismissal affirmed at 199 Wash. App. 1039

(Div. 1, June 26, 2017) rev. denied 189 Wn2d 1040 (2018).

Jordynn Scott v. John Doe, Director of the Department

of Licensing, Whatcom County Superior Court Cause No.

15-2-00301-8, dismissed on August 10, 2015; dismissal

affirmed at 199 Wash. App. 1039, (Div. 1, June 26, 2017)

rev. denied 189 Wn2d 1040 (2018).

Wilson v. Horton’s Towing, 2016 WL 1221655, W.

D., Wash. (2016), 906 F.3d 773 (9th Cir. 2018), affirmed in

part, vacated in part and remanded, cert. denied 139 S.

Ct. 1603 (2019).

Susan Pierson v. John Doe, Director of the Department

of Enterprise Services, Washington Supreme Court Cause

No. 93643-9, dismissed on Janaury 25, 2017.

Lafferty v. Liu and David Heenan, United States

District Court for the Western District of Washington

at Seattle, Cause No. 2-17-CV-00749-RSM, dismissed on

September 17, 2018.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

PARTIES TO PROCEEDING AND RELATED

CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 9

A. Background of Prior and Instant Cases

involving Susan Pierson . . . . . . . . . . . . . . . . . . . . 9

Table of Contents

Page

B. Proceedings Below in the Present Case . . . . . . 11

C. Basis for Decision in the Prior Lawsuit . . . . . . . . 12

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 14

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The District Judge erred in concluding

the issues in Pearson v. Thorne were

ident ic a l a nd t he A pp el l at e Cou r t

erred in affirming that result . . . . . . . . . . . . . . . 17

The issue and/or claim upon which the

estoppel is based does not meet the

definition of issue claim set forth in Lucky

Brand Dungarees v. Marcel Fashions

140 S. Ct. 1589 (May 14, 2020) . . . . . . . . . . . . . . 22

The issue and/or claim and privity upon

which the estoppel is based does not

meet the definition of issue/ claim and

privity as set forth in Thompson v. King

County 163 Wa. App. 184 (2011) . . . . . . . . . . . . . 27

vii

Table of Contents

Page

The application of collateral estoppel cannot

satisfy the 4th component to the application

of collateral estoppel, that is, that the

application of the estoppel would not work

an injustice, because the court did not

resolve the issue/or claim and plaintiff was

not afforded a full and fair opportunity to

be heard on the issues and claims she raises

against Hudson in Pearson v. Thorne . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

viii

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OF THE

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

DECEMBER 17, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON AT

SEATTLE, FILED FEBRUARY 6, 2020 . . . . . . . . 7a

APPENDIX C — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON AT

SEATTLE, FILED JUNE 20, 2016 . . . . . . . . . . . . 16a

TABLE OF CITED AUTHORITIES

Page

Cases:

Brown v. Felsen,

442 U.S. 127, 99 S. Ct. 2205,

60 L. Ed. 2d 767 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 22

Christensen v. Grant County Hospital,

152 Wash. 2d 299 (2004) . . . . . . . . . . . . . . . . . . . . . . . 29

Candee Washington v. Washington State

Department of Licensing,

199 Wash. App. 1039 (Div. 1, 2017)

rev. denied 189 Wn2d 1040 (2018) . . . . . . . . . . . . . . . . 3

Evans v. McKay,

869 F.2d 1341 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 6

Jordynn Scott v. John Doe, Director

of the Department of Licensing,

199 Wash. App. 1039 (Div. 1, 2017)

rev. denied 189 Wn2d 1040 (2018) . . . . . . . . . . . . . . . . 3

Kremer v. Chemical Constr. Corp.,

456 U.S. 461, 102 S. Ct. 1883,

72 L. Ed. 2d 262 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 22

Lawlor v. National Screen Service Corp.,

349 U.S. 322, 75 S. Ct. 865,

99 L. Ed. 1122 (1955) . . . . . . . . . . . . . . . . . . . . . . 24-25

Cited Authorities

Page

Lewis v. Clarke,

320 Conn. 706, 135 A.3d 677 (2016),

137 S. Ct.1285 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Lucky Brand Dungarees v. Marcel Fashions,

140 S. Ct. 1589 (May 14, 2020) . . . . . . . . . . . . . . passim

Nielson v. Spanaway Gen. Med. Clinic, Inc.,

135 Wash. 2d 255 (1998) . . . . . . . . . . . . . . . . . . . . 29-30

Paulo v. Holder,

669 F.3d 911 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 18

Pearson v. Thorne,

C15-0731-JCC, 2016 WL 3386798,

W.D. Wash. (2016) . . . . . . . . . . . . . . . . . . . . . . . . passim

Sayward v. Thayer,

9 Wash. 22, 36 P. 966 (1894) . . . . . . . . . . . . . . . . . . . . 23

Scholz v. Wash. State Patrol,

416 P.3d 1261 (Wash. Ct. App. 2018) . . . . . . . . . . 15, 16

Shea v. City of Spokane,

17 Wash. App. 236, 562 P.2d 264 (1977), aff’d,

90 Wash. 2d 43, 578 P.2d 42 (1978) . . . . . . . . . . . . . . 27

Shoemaker v. City of Bremerton,

745 P.2d 858 (Wash. 1987) . . . . . . . . . . . . . . . . . . 15, 16

Cited Authorities

Page

Susan Pierson v. John Doe, Director of the

Department of Enterprise Services,

Washington Supreme Court Cause

No. 93643-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17, 25

Thompson v. King County,

163 Wa. App. 184 (2011) . . . . . . . . . . . . . . 21, 27, 28, 32

United States v. Tohono O’odham Nation,

563 U.S. 307, 131 S. Ct. 1723,

179 L. Ed. 2d 723 (2011) . . . . . . . . . . . . . . . . . . . . . . . 22

Whole Woman’s Health v. Hellerstedt,

579 U.S. ––––, ––––, 136 S. Ct. 2292,

195 L. Ed. 2d 665 (2016) . . . . . . . . . . . . . . . . . . . . . . . 24

Wilson v. Horton’s Towing,

2016 WL 1221655, W. D., Wash. (2016) . . . . . . . . . . . . 4

Statutes:

18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C.

Varner, Federal Practices § 131.22(1)

(3d ed. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

18 Moore Federal Practice &132.02(2)(c) . . . . . . . . . . . 18

25 U.S.C. § 5321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

25 U.S.C. § 5321(c)(3)(A) . . . . . . . . . . . . . . . . . . . . . passim

xii

Cited Authorities

Page

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 19

42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wash. Rev. Code § 10.92 . . . . . . . . . . . . . . . . . . . . . . . . . 18

Wash. Rev. Code § 10.92.020 . . . . . . . . . . . . . . . 5, 6, 19, 20

Wright & Miller § 4407 . . . . . . . . . . . . . . . . . . . . . . . 22, 24

Court Rules:

CR 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14

CR 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Other Authorities:

Restatement (Second) of Judgments § 24, Comment b,

p. 199 (1982) (Restatement (Second) . . . . . . . 23, 24, 25

PETITION FOR A WRIT OF CERTIORARI

Petitioner Susan Pierson respectfully requests that

this court grant a writ of certiorari to review the order

and the judgment and opinion of the United States Court

of Appeals for the 9th Circuit entered December 17, 2020,

an unpublished opinion reported at 2020 WL 7398999.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the 9th Circuit affirming the dismissal of petitioner’s

breach of contract claim was issued on December 17, 2020

and not reported (App., 1a-6a).

The order of the United States District Court for the

Western District of Washington dismissing the case on

February 6, 2020 is reported at 2020 WL 583825 (App.,

7a-15a).

JURISDICTION

The opinion of the United States Court of Appeals

for the 9th Circuit affirming the dismissal of petitioner’s

breach of contract claim was issued on December 17, 2020.

Under this court’s order of Thursday, March 19, 2020,

extending the deadline for filing to 150 days from the

date of the lower court judgment, this petition is timely

filed. This court has jurisdiction under 28 U.S.C. § 1291.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

25 U.S.C.A. § 5321

Formerly cited as 25 USCA § 450f

§ 5321. Self-determination contracts

(1) Beginning in 1990, the Secretary shall be

responsible for obtaining or providing liability insurance

or equivalent coverage, on the most cost-effective basis, for

Indian tribes, tribal organizations, and tribal contractors

carrying out contracts, grant agreements and cooperative

agreements pursuant to this chapter. In obtaining or

providing such coverage, the Secretary shall take into

consideration the extent to which liability under such

contracts or agreements are covered by the Federal Tort

Claims Act.

(2) In obtaining or providing such coverage, the

Secretary shall, to the greatest extent practicable, give

a preference to coverage underwritten by Indian-owned

economic enterprises (as defined in section 1452 of this

title), except that, for the purposes of this subsection, such

enterprises may include non-profit corporations.

(3)(A) Any policy of insurance obtained or provided by

the Secretary pursuant to this subsection shall contain a

provision that the insurance carrier shall waive any right

it may have to raise as a defense the sovereign immunity

of an Indian tribe from suit, but that such waiver shall

extend only to claims the amount and nature of which are

within the coverage and limits of the policy and shall not

authorize or empower such insurance carrier to waive or

otherwise limit the tribe’s sovereign immunity outside or

beyond the coverage or limits of the policy of insurance.

(B) No waiver of the sovereign immunity of an Indian

tribe pursuant to this paragraph shall include a waiver

to the extent of any potential liability for interest prior

to judgment or for punitive damages or for any other

limitation on liability imposed by the law of the State in

which the alleged injury occurs.

PRELIMINARY STATEMENT

The instant case is one of four cases in which

automobiles owned by non Native Americans were

seized and held for forfeiture by tribal police officers for

violation of tribal drug laws. In three of the four cases,

the automobiles were ordered forfeited by the Swinomish

Indian Tribal Court for violation of tribal drug laws. The

three cases are (1) Candee Washington v. Washington

State Department of Licensing, 199 Wash. App. 1039

(Div. 1, 2017) rev. denied 189 Wn2d 1040 (2018), (2)

Jordynn Scott v. John Doe, Director of the Department of

Licensing, 199 Wash. App. 1039 (Div. 1, 2017) rev. denied

189 Wn2d 1040(2018), and (3) Susan Pearson (sic) Pierson

v. Director of Department of Licensing and Andrew

Thorne, Swinomish tribal police officer, 2016 WL 3386798,

(Western District of Washington, June 20, 2016). Pearson

was adjudicated by John C. Coughenour, United States

District Judge who also adjudicated the instant case.

In the Washington and Scott cases, the Swinomish

Tribe was able to sell the cars and have the certificates

of title transferred to the buyer at public auction. In the

Pearson case, the motor vehicle was not sold because as a

result of the Washington and Scott cases, the Washington

State Department of Licensing agreed not to honor tribal

orders of forfeitures in the future to change certificates of

title to automobiles. The Department of Licensing did this

to avoid entry of an injunction prohibiting the Department

from doing so.

The fourth case in which an automobile owned by a

non Native American was seized and held for forfeiture

by tribal police officers for violation of tribal drug laws is

Wilson v. Horton’s Towing, 2016 WL 1221655, W. D., Wash.

(2016), 906 F.3d 773 (9th Cir. 2018), cert. denied 139 S. Ct.

1603 (2019). Wilson involved the Lummi Tribe. Wilson

sued Brandon Gates, a Lummi Tribal police officer who

traveled into Bellingham and seized Wilson’s truck. Gates

towed it to the Lummi Reservation where a forfeiture

proceeding was initiated against the truck. The 9th circuit

dismissed Wilson’s claim that the Lummi Tribe lacked

jurisdiction to forfeit his truck, without prejudice, but

directed that Wilson first had to exhaust his claim before

the Lummi Tribal Court before the court would decide

the jurisdictional question as to whether the tribe had

authority to forfeit property of non Native Americans for

violation of tribal drug laws.

Two other related cases referenced in the Appellant’s

Excerpts of Record are (5) Susan Pierson v. John Doe,

Director of the Department of Enterprise Services,

Washington Supreme Court Cause No. 93643-9; and (6)

Lafferty v. Liu and David Heenan, United States District

Court for the Western District of Washington at Seattle,

Cause No. 2-17-CV-00749-RSM.

Susan Pierson v. John Doe, Director of the Department

of Enterprise Services, was commenced after Pearson v.

Thorne was dismissed. Before the Washington Supreme

Court rendered its decision, the Swinomish Tribe

presented the Director of the Department of Enterprise

Services (DES) with an endorsement of the Hudson

insurance policy covering the liabilty of the Swinomish

Tribe. The endorsement amended the insurance policy

to make it compliant with RCW 10.92.020 and waived the

right to plead Indian sovereignty as a defense. The waiver

states “pursuant to Revised Code of Washington 10.92.020

(2) (a) (11), to the extent of policy coverage neither the

named Assured nor Hudson will raise the defense of

sovereign immunity to preclude an action for damages

under state or federal law, the determination of fault in a

civil action, or the payment of a settlement or judgment

arising from the tortious conduct.” The waiver material

is found at Appellant’s Excerpts of Record Vol. II, 97-117.

Scrutiny of the waiver contained in the endorsement

submitted by the Swinomish Tribe reveals that the

Hudson policy does not contain the waiver required by 25

USC 5321 © (3) (A). The waiver submitted only waives the

right to assert the defense of Indian sovereignty to defeat

a claim under the policy if the tribal officer is acting under

state law or federal law, RCW 10.92.020. The endorsement

required under RCW 10.92.020 preserves the right of

the insurer to plead Indian sovereignty as a defense to a

claim covered under the policy if the officer was acting in

his capacity to enforce tribal law. Notice that this limited

waiver fits in with the result reached in Pearson v. Thorne,

where the court found that Thorne was acting as a tribal

officer and not as a state or federal law enforcement officer.

25 USC 5321 (c) (3) (A) makes no such distinction and

requires a complete waiver. That is, the analysis is simple.

Is the claim covered under the policy? If so, no defense of

Indian sovereignty can be asserted to defeat the claim.

The waiver mandated by 25 USC 5321 (c) (3) (A) does not

allow the insurer to defeat a claim covered under the policy

by assertion of Indian sovereignty because the officer was

acting as a tribal officer. The only deduction to be taken

from the submission of the waiver in Pierson v. DES was

that, prior to the submission of the Washington state

based waiver required by RCW 10.92.020, the Hudson

policy had no waiver of any type because if it did contain

the all encompassing waiver required by 25 USC 5321

have been necessary.

Hudson’s position that submission of the Washington

state conforming waiver was adequate is consistent with

the postion taken by Hudson, that no federal conforming

waiver is required based upon case law, principally Evans

v. McKay 869 F.2d 1341 (1989), see Appellant’s Excerpts

of Record,Volume II, pages 118,119.

But a careful read of Evans v. McKay reveals that

Evans holds to the contrary. It specifically states that

Indian sovereignty cannot be used as a defense against

any claim covered under the policy. The following is taken

from Evans v. McKay, 869 F2d at 1346:

The ISDA permits the various Indian tribes,

inter alia, to contract with the Secretary of

the Interior to furnish services previously

administered by the federal government. 25

U.S.C. § 450f. The ISDA further vests the

Secretary with discretion to require any

tribe requesting such a contract to obtain

adequate liability insurance. Specifically, the

Act provides that:

The Secretary is authorized to require any

tribe requesting that he enter into a contract

pursuant to the provisions of this subchapter to

obtain adequate liability insurance: Provided,

however, That each such policy of insurance

shall contain a provision that the insurance

carrier shall waive any right it may have to raise

as a defense the tribe’s sovereign immunity

from suit, but that such waiver shall extend only

to claims the amount and nature of which are

within the coverage and limits of the policy and

shall not authorize or empower such insurance

carrier to waive or otherwise limit the tribe’s

coverage and limits of the policy of insurance.

25 U.S.C. § 450f(c) (codified as 25 USC 5321 ©

(3) (A) (emphasis added). It is this section of the

ISDA upon which the appellants primarily rely

to support their argument that the Tribe has

waived its sovereign immunity.

While requiring a tribe to obtain liability

insurance as a condition precedent to contractual

performance authorized by the Secretary,

section 450f(c) clearly addresses, as is evident

in the caveat of that subsection, the rights and

limitations of the insurance carrier, not the

Tribe. This provision expressly precludes the

insurer from defeating a claim covered by the

policy by an invocation of the tribe’s sovereign

immunity.

The fact remains Thorne and Pierson were covered

under the Hudson policy and the only lawyer involved in

the litigation was a defense attorney hired by Hudson

to defend a person covered under its policy. There was

no lawyer representing the tribe and asserting tribal

sovereignty on behalf of the tribe. Hudson’s lawyer

asserted the defense of Indian sovereignty on behalf

of a named tribal officer sued in his individual capacity

who was covered under the policy and thereby achieved

dismissal of the claim.

The second related case is Lafferty v. Liu and David

Heenan, United States District Court for the Western

District of Washington at Seattle, Cause No. 2-17-CV00749-RSM. At Appellant’s Excerpts of Record 118, 119

is the letter from William W. Spencer which is the only

record of a legal position taken by Hudson Insurance

relating to the challenge that 25 USC 5321 © (3) (A) applies

to the Hudson Insurance policy at issue and requires a

written waiver in the policy itself forsaking the right to

assert the defense of Indian sovereignty as a defense to

a claim covered under the policy.

The opinion of the District Court in Lafferty v.

Heenan and Hudson Insurance is found at Appellant’s

Excerpts of Record 39, 40.

On February 27, 2019, Lafferty sued Heenan, a

Swinomish tribal police officer, and named Hudson as

a party defendant seeking an injunction compelling

Hudson to take steps to insure that the defense of Indian

sovereignty was not asserted as a defense to the tort

claim against Heenan. Pierson cites DKT #50(citing DKT

#46) as pointing out that after Lafferty noted his motion

to enjoin Hudson, Hudson replied and argued in court

pleadings that Indian sovereignty was not pleaded as a

defense to Lafferty’s tort claim against Heenan. Therefore

Hudson argued that the issue was moot and the request

for the injunction groundless. Hudson requested terms

and the imposition of monetary sanctions against Lafferty.

Lafferty replied that Indian sovereignty had been pleaded

and cited Heenan’s answer. After this took place, Heenan

filed a document withdrawing his defense of Indian

sovereignty to the tort claim brought by Lafferty against

Hennan. This resulted in the court’s dismissing Lafferty’s

request for an injunction as moot; see Appellant’s Excerpts

of Record 39,m lines 17-28, 40, lines 1-4.

This outcome shows a coordination between Heenan’s

lawyer (appointed by Hudson) and Hudson itself to prevent

the court reaching the issue of the absence of the waiver

required by 25 USC 5321 © (3) (A) from Hudson’s policy,

and preventing what would have been the logical next step

– an injunction requiring Hudson to include in its policies

a waiver so that appointed lawyers would not be able to

assert the defense of Indian sovereignty in a tort suit.

STATEMENT OF THE CASE

A. Background of Prior and Instant Cases involving

Susan Pierson

On January 21, 2015 Ms. Pierson’s truck was seized

and held by Swinomish tribal police officer Kleinman

and other Swinomish Tribal Police Officers, M. Radley

and Larry Yonally. Those police officers stopped Ms.

Pierson at a stop sign at the intersection of Swinomish

Avenue and 1st Street on the Swinomish Reservation in

Skagit County. Two days after the seizure, Pierson asked

Swinomish Tribal Police Officer Andrew Thorne to return

her truck. He refused, saying the truck was being held

to be searched.

It took the Swinomish Police Department over a week

to seek a search warrant. The warrant was applied for and

issued by a Washington state court. Yet Thorne and other

Swinomish police officers referred to in the complaint

seized the truck for forfeiture under the tribal drug code.

Pierson did not get her truck back. She sued Thorne

for damages for conversion. She argued that she was

entitled to recover for actual damages, loss of truck and

use of truck and damages for violation of her civil rights

by the police officers and reasonable attorneys’ fees and

costs pursuant to 42 USC 1983 and 1988.

Thorne, whose attorney was provided by Hudson

under an insurance policy issued to the Tribe, removed the

case to federal court. Thorne moved to dismiss the case.

The court granted the motion to dismiss, essentially on the

ground that Thorne was immunized by Indian sovereignty

as will be more fully discussed below. Pearson v. Thorne,

C15-0731-JCC, 2016 WL 3386798, W. D. Wash. (2016). No

appeal was taken from this decision.

On February 27, 2019, Pierson filed the present

suit against Hudson Insurance alleging that Hudson’s

insurance policy with the Swinomish tribe was purchased

by the federal government pursuant to 25 USC 5321 © (3)

(A) and was required to have a waiver of the right to assert

the defense of Indian sovereignty written into the policy.

Pierson alleged that she was the third party beneficiary

under the policy and because the policy was paid for with

federal funds, the Hudson policy was required by federal

law, 25 USC 5321 © (3)(A)… Any policy of insurance

obtained or provided by the Secretary pursuant to this

subsection shall contain a provision that the insurance

carrier shall waive any right it may have to raise as a

defense the sovereign immunity of an Indian tribe from

suit up to the limits of the policy. Pierson argued that she

and all other persons whose claims against employees of

the Swinomish Tribe were covered under the Hudson

insurance policy with the Swinomish Tribe were entitled

to pursue their claims without interference by assertion

of the defense of Indian sovereignty. Again, Pierson

acknowledges that a tribe can always assert sovereignty.

Pierson’s argument is that a defense attorney appointed

by Hudson under a federal funded contract of insurance

may not assert the defense.

B. Proceedings Below in the Present Case

Hudson Insurance filed its motion to dismiss under

Rule 12.b (6). Hudson wrote in its motion to dismiss,

“Although Plaintiff premises her claims on the notion

that her rights in Pierson I were violated because the

Swinomish Tribe relied on the defense of sovereign

immunity, plaintiff’s claims in Pierson I were dismissed

pursuant to summary judgment on grounds other than

the defense of sovereign immunity.”Dkt 31, page 3 lines

4-5. Shortly thereafter at page 3, lines 11 to 16, Hudson

wrote,“With this lawsuit Plaintiff aims to do nothing more

than relitigate Pierson 1 using the defendant Insurance

Companies as surrogates for the Swinomish Tribe and

its police officer. The courts have already decided those

issues, holding not only that sovereign immunity applied

but that Plaintiff also had neglected to exhaust her tribal

remedies.” See also the 7th affirmative defense in the

answer filed by Hudson.

The 8th affirmative defense states: “these defendants

were not parties in Pierson 1 and therefore could have

not violated any of plaintiff’s civil or due process rights

during the course of that litigation.”

C. Basis for Decision in the Prior Lawsuit

Pearson v. Thorne was a lawsuit for damages against

Thorne in his individual capacity. It was dismissed for

three reasons stated in the district court opinion. First,

the court found that Thorne was acting in his official

capacity as a tribal officer and was thus immune because

of Indian sovereignty. This finding is final. Thus, Pierson

is now barred from suing Hudson for damages caused by

tribal officer Thorne.

The second finding was that Thorne was acting as

a tribal officer and was therefore immune from a claim

under 42 USC 1983. The third finding was that Pierson

had waived any claim that the seizure of the car and its

confiscation were illegal because she failed to exhaust her

remedies in tribal court. These findings are dictated by

the first finding that Thorne is entitled to the defense of

Indian sovereignty. These findings are also final, but like

the first finding, they only mean that Pierson is precluded

from suing Hudson for damages caused by officer Thorne.

The theory of damages in the present case in Pierson v.

Hudson Insurance Company is different. Pierson is suing

Hudson for damages caused by its own actions. Under

the federal statute, 25 USC 5321 (c) (3) (A), Pierson has a

right as a third party beneficiary to pursue tort litigation

against persons covered under the insurance policy issued

by Hudson, free from and uninhibited by the assertion of

the defense of Indian tribal sovereignty—a defense that

is virtually unassailable. Hudson interfered with this

right by failing to include in the insurance contract the

federally required waiver of the sovereignty defense up

to the limit of the policy issued to the Swinomish Tribe.

The damages are not the loss of the truck and its use. The

damages are the cost of litigation against Thorne that, but

for Hudson’s omission, would have proceeded in state court

like an ordinary tort lawsuit, uncomplicated by Thorne’s

status as a tribal officer.

Defendant Hudson is not entitled to the defense

of Indian sovereignty for its own actions. The District

Court should have stayed its hand and required Hudson

to answer Pierson’s interrogatories.

If this court grants this petition and reverses the

dismissal and allows this case to go forward against

Hudson, two results are possible. First, the court might

(incorrectly in Pierson’s view) rule on the merits that

Hudson is not obligated by 25 USC 5321 © (3) (A) to include

a written waiver forsaking the right to assert the defense

of Indian sovereignty to defeat a claim covered under

the policy, see cases cited in letter of William Spencer,

Appellant’s Excerpts of Record 118, 119.1 Hudson’s remedy

would be to seek terms.

1. 25 USC 5321 © (3) (A) requires a waiver written into an

insurance policy purchased by the Secretary of the Interior for the

benefit of an Indian tribe receiving a Self Determination Grant.

For Hudson to prevail under its case law argument that Hudson

is not prohibited by 25 USC 5321 © (3) (A) from asserting the

defense of Indian sovereignty to defeat a claim covered under its

policy, it logically follows that Hudson would have to show the court

which insurance policy the 25 USC 5321 © (3) (A) written waiver

applies to, if not the instant Hudson insurance policy covering the

liability of the Swinomish Tribe.

But, more likely, the court would decide that Hudson

did break the law by failing to include a written waiver in

its policy. If the policy issued by Hudson had included a

written waiver, Thorne would not have been able to assert

that his status as a tribal officer made him immune from

suit. The lawyer Hudson hired to defend Thorne in the

prior lawsuit would have realized that 25 USC 5321 (c) (3)

(A) prevented the assertion of all the defenses that allowed

Thorne ultimately to prevail.

SUMMARY OF ARGUMENT

Certiorari should be granted because the Ninth

Circuit’s decision erroneously interprets Washington

State issue preclusion law to deny petitioner the right

to sue Hudson Insurance Company as a third party

beneficiary of its contract of insurance with the Swinomish

Tribe purchased by federal funds pursuant to 25 USC

5321 (c) (3) A). This claim by Pierson was not raised or

addressed by the District Court in prior litigation. In

addition, this case raises a significant question as to

whether federal law, specifically 25 USC 5321 (c) (3) A),

has been violated by Hudson Insurance Company to

its financial benefit in the administration of tort claims

covered under its policies and whether the application

of collateral estoppel to deny petitioner the opportunity

to litigate her claim would work an injustice. Dismissal

under 12.6 (b) entitles petitioner to the assumption that her

factual claim is true, that Hudson Insurance, the biggest

insurance carrier insuring native American Indian tribes,

is systemically ignoring its obligations under 25 USC 5321

petitioner’s contract claim against Hudson under 25 USC

5321 (c) (3) works an injustice upon petitioner and those

other persons who were entitled to protection by vigorous

enforcement of 25 USC 5321 (c) (3) (A). The 9th circuit’s

opinion vindicates Hudson’s use of the legal system to

keep concealed its complete disregard of 25 USC 5321 (c)

(3) A which was passed specifically to protect petitioner

and other persons in her situation.

ARGUMENT

The 9th circuit opinion affirming the District Court

is six (6) pages. Two issues under the generic label of

Issue Preclusion are addressed: (a) Identity of Issues (at

bottom of page 2 and page 3) and (b) Whether Application

of Issue Preclusion Would Cause Injustice (page 5 and

top of page 6).

As to issue (a) the 9th circuit cites on page 4, Scholz

v. Wash. State Patrol 416 P.3d 1261,1267 (Wash. Ct. App.

2018) quoting Shoemaker v. City of Bremerton 745 P.2d

858, 860 (Wash. 1987) (enbanc) for the premise the issue

decided in the earlier proceeding must have been “actually

litigated and necessarily determined” in that proceeding.

The facts of both cases involve policemen. Scholz was

fired for lying in an investigation. Shoemaker was

demoted. Each officer asserted his right to challenge the

termination or demotion under the collective bargaining

agreement. Both lost, after which they sued. The suits

were dismissed upon collateral estoppel but the facts

were absolutely identical. In Scholz and Shoemaker, the

common nucleus of facts involved in the litigation were

the same, i.e. was the termination or demotion based upon

just cause. It truly was a “rehash” of the prior litigation.

The Scholz and Bremerton cases are unlike the instant

case because the legal theory of liabilty is different, breach

of contract against Hudson for its actions in not including

a written waiver in its insurance policy as required by

25 USC 5321 (c) (3) (A) versus a tort suit against Tribal

Officer Thorne based upon his actions in seizing and

forfeiting petitioner’s truck. The instant case focuses on

the conduct of a different party, Hudson, in breaching

federal law by not putting a written waiver of the right

to assert the defense of sovereign immunity to defeat a

claim covered under the policy. The common nucleus of

fact required for claim preclusion under Lucky Brand

Dungarees v. Marcel Fashions (140 S. Ct. 1589 (May 14,

2020) is not satisfied.

The 9th circuit opinion is also deficient because it does

not address privity which is one of the four requirements

which must be satisfied under Scholz v. Wash. State Patrol

and Shoemaker v. City of Bremerton. The requirement

of privity was squarely presented in Appellant’s Opening

Brief and there is no privity under Washington law.

Next, the 9 th circuit focussed on the fact that the

District Court ruled Pierson’s claim against Swinomish

Tribal police officers involved in the seizure and forfeiture

of her truck was barred by Indian sovereign immunity.

The crux of the 9th circuit’s opinion is found in the following

language:

In the instant proceeding the district court

concluded that although Appellant had asserted

that Appellee insurance companies violated

25 USC 5321 (c) (3) (A) by failing to include a

waiver of the tribal sovereign immunity defense

in policies it issued to tribes and therefore

deprived her of her due process right to litigate

tort claims, she was really trying to rehash the

issue of tribal sovereign immunity.

Appellant argues her claims in this case are

different and that the prior proceeding did

not address her claim under 25 USC 5321. But

Appellant’s claims in both the prior proceeding

and the instant proceeding turn on the identical

issue of whether the tribal officers were

entitled to immunity. This issue has already

been decided against Appellant. Thus, as the

district court correctly recognized, the issues

are identical. See 9th circuit opinion in Pierson

v. Hudson, 2020 WL 7398999 at page 1, bottom.

The 9th circuit also found no injustice would flow from

the application of Issue Preclusion because “at its core,

Appellant’s argument is grounded in her belief that the

prior proceeding was wrongly decided and that tribal

immunity was improperly applied to dismiss her claim.”

Because in petitioner’s view, the 9th circuit did

not address all of her claims and arguments, most of

petitioner’s argument herein is taken from petitioner’s

Opening Brief to the the 9th circuit.

1. The District Judge erred in concluding the issues in

Pearson v. Thorne were identical and the Appellate

Court erred in affirming that result.

The District Court opinion concludes that the “issue”

raised in both lawsuits is the same. See opinion heading

re “Identical Issues”, Appellant’s Excerpts of Record at 4,

lines 23-26, and 5, lines 1-13. These sixteen lines contain

the reasoning of the opinion and hence will be quoted in

full.

The purpose of collateral estoppel is not “to

deny a litigant his day in court, but to prevent

retrial of one or more of the crucial issues or

determinative facts determined in previous

litigation.”[Citation omitted.] If a new argument

is raised in the second action regarding

something already raised and litigated in the

first action, “the prior determination of the

issue is conclusive “ even if the new “argument

relevant to the issue was not in fact expressly

pleaded”. 18 Moore Federal Practice &132.02(2)

(c); see also Paulo v. Holder, 669 F.3d 911,

917- 918(“The fact that a particular argument

against [a particular issue] was not made …and

not addressed…does not mean that the issue…

was not decided.)

In Pearson v. Thorne, Plaintiff argued that

Thorne could not assert sovereign immunity

under RCW 10.92, which requires insurance

companies to waive tribal sovereignty for their

insureds. Pearson, Case No. C15-0731-JCC Dkt

No.32 at 2-3. Now, Plaintiff asserts that Thorne

should not have been protected by sovereign

immunity because of 25 USC 5321 – a statute

bearing a strong resemblance to RCW 10.92.

(DKT. No. 1 at 9.) Specifically, Sec. 5321 (c) (3) (A)

provides that an insurance company insuring a

tribe must include a provision within the policy

that“waive[s] any right it may have to raise as

a defense the sovereign immunity of an Indian

tribe from suit” to the extent of the coverage.

Although Plaintiff raises a new argument in

support of her assertion, she is litigating the

same issue-namely whether Thorne should have

been protected by sovereign immunity in the

original lawsuit.”

The reference above to Pearson case No. C15-0731JCC Dkt No. 32 at 2-3 is to the Reply Memorandum of the

plaintiff to the Motion for Summary Judgment made by

Sergeant Thorne. Thorne was both a Washington State

Law Enforcement Officer and a Swinomish Tribal Officer.

Plaintiff sued him alleging that for purposes of 42 U.S.C.

1983, he acted as a state officer when he applied for a

search warrant from the state court to search Plaintiff,

who is not a native American. (In this counsel’s experience

of 47 years practice, I have never seen a tribal officer

appear in state court and get a search warrant against

a non Native American). Thorne and other tribal officers

searched Plaintiff’s truck pursuant to the state warrant,

discovered illegal drugs and used this uncovering of

evidence to achieve the forfeiture of the truck in tribal

court.

Thorne had argued that he was acting as a tribal

officer. The purpose of the reply memorandum was to

point out that if the District Court found that Thorne

acted as a state law enforcement officer, he was subject to

RCW 10.92.020. Under this state statute, officers of the

Swinomish Tribe must have insurance which prohibits

the use of Indian sovereignty as a defense to defeat a

tort claim against the officer when he has acted as a state

officer. This argument in the reply memorandum was

never addressed or decided because the District Court in

the prior lawsuit held that Thorne always and only acted

as a tribal police officer.

Thus, the District Court opinion in the present

lawsuit is incorrect when it states that the issue plaintiff

is litigating is identical to the issue litigated in the prior

lawsuit. As noted above, plaintiff agrees the judgment in

the prior case establishes that Thorne was protected by

sovereign immunity from a lawsuit seeking damages for

his confiscation of the truck. The judgment does not in

any way resolve the issue whether Hudson violates the law

when it fails to include in its policies the written waiver of

a sovereignty defense required by a federal statute. That

issue was not decided in the prior lawsuit.

Moreover, Washington law requires that the party

estopped have had a fair and full opportunity to litigate

the issue. Because the issue was raised in a reply brief,

and had a limited application to Thorne’s liability for his

actions as a state police officer and the application of RCW

10.92.020, the use of issue preclusion to prohibit Pierson’s

later suit against Hudson for violation of application of

25 USC 5321 is untenable. The application of 25 USC

5321 was not raised or argued in the prior lawsuit.

The opinion of the district court purports to apply the

law of collateral estoppel, also termed issue preclusion.

The opinion, citing federal cases even though the court in

diversity jurisdiction should be applying state law, recites

that collateral estoppel precludes a party from relitigating

an issue actually decided in a prior case and necessary

to the judgment. That analysis is not applicable here.

Petitioner is not attempting to relitigate whether Thorne

as an individual is susceptible to suit for tort damages.

The issue in the present case was not actually litigated or

decided in the prior lawsuit.

The appellate court affirmed the District Court’s

conclusion that the issues were identical in the prior

litigation Pearson v. Thorne, supra. This aspect of issue

preclusion- identity of issues- was addressed in the 9th

circuit opinion in about two pages of analysis.

Petitioner raised the specific argument that as it

relates to the prior lawsuit, Pearson v. Thorne, Hudson

could not avail itself of the defense of issue preclusion

under Washington law because Hudson was not in privity

with Thorne, see Appellant Opening Brief before 9 th

circuit, Issue 2, “As it relates to the litigation in the prior

lawsuit, is Hudson in privity with Thorne to be able to

avail itself of the affirmative defense of issue preclusion?

No.”, see pages 2, 17, 18 of appellant’s opening brief before

the 9th circuit.

The 9th circuit did not address petitioner’s argument

that Hudson was not in privity with Thorne and therefore

could not assert issue preclusion to bar petitioner’s claim.

Also, petitioner’s breach of contract claim against Hudson

was not a claim identical to Pierson’s tort claim against

Thorne under Washington law, Thompson v. King County

163 Wa. App. 184 (2011).

2. The issue and/or claim upon which the estoppel is

based does not meet the definition of issue claim

set forth in Lucky Brand Dungarees v. Marcel

Fashions (140 S. Ct. 1589 (May 14, 2020).

The specifics of this argument under Lucky Brand

Dungarees v. Marcel Fashions was not addressed by the

9th circuit in its opinion.

The District Court eliminated the right of the plaintiff

to pursue her claim against Hudson because she did not

present her claim against Hudson and join Hudson at the

same time and in the same tort case against Thorne. In

effect, the court created a mandatory joinder rule under

the rubric of collateral estoppel.

Hudson may argue that the dismissal is justified by res

judicata, sometimes called claim preclusion. Unlike issue

preclusion, claim preclusion prevents parties from raising

issues that could have been raised and decided in a prior

action—even if they were not actually litigated. If a later

suit advances the same claim as an earlier suit between

the same parties, the earlier suit’s judgment “prevents

litigation of all grounds for, or defenses to, recovery that

were previously available to the parties, regardless of

whether they were asserted or determined in the prior

proceeding.” Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct.

2205, 60 L.Ed.2d 767 (1979); see also Wright & Miller §

4407. Suits involve the same claim (or “cause of action”)

when they “ ‘aris[e] from the same transaction,’ ” United

States v. Tohono O’odham Nation, 563 U.S. 307, 316, 131

S.Ct. 1723, 179 L.Ed.2d 723 (2011) (quoting Kremer v.

Chemical Constr. Corp., 456 U.S. 461, 482, n. 22, 102 S.Ct.

1883, 72 L.Ed.2d 262 (1982)), or involve a “common nucleus

of operative facts,” Restatement (Second) of Judgments

§ 24, Comment b, p. 199 (1982) (Restatement (Second)).

Because this case is before the court on diversity

jurisdiction, the federal court applies state law. The

general doctrine was first reported in Sayward v. Thayer,

9 Wash. 22, 24, 36 P. 966 (1894) as follows:

[T]he plea of res judicata applies, except in

special cases, not only to points upon which

the court was actually required by the parties

to form an opinion and pronounce judgment,

but to every point which properly belonged to

the subject of litigation, and which the parties,

exercising reasonable diligence, might have

brought forward at the time.

Recent federal guidance is found in Lucky Brand

Dungarees v. Marcel Fashions Group Inc., 140 S. Ct. 1589

(May 14, 2020). Lucky Brand shows how to ascertain what

constitutes a claim or a defense that is precluded in a

second lawsuit because it should have been asserted in

the prior lawsuit.

Lucky Brand vindicates Pierson’s argument that her

third party beneficiary cause of action against Hudson

based upon 25 USC 5321 (c) (3) (A) is not a claim that had

to be litigated in Pearson v. Thorne. Pierson’s third party

beneficiary cause of action, derived from 25 USC 5321

Brand to determine whether a claim or defense must be

asserted.

The first criterion of Lucky Brand is that the causes of

action that were resolved in the prior litigation must share

a common nucleus of facts with the facts presented in the

new litigation to support an estoppel. The United States

Supreme Court did not find that to be the circumstance

in Lucky Brand, stating:

Put simply, the two suits here were grounded

on different conduct, involving different marks,

occurring at different times. They thus did not

share a “common nucleus of operative facts.”

Restatement (Second) § 24, Comment b, at 199,

140 S. Ct. at 1595.

The second criterion used to measure where claim

preclusion applies is to ask whether “ ‘a different judgment

in the second action would impair or destroy rights or

interests established by the judgment entered in the first

action.’ ” Wright & Miller § 4407.” Stated differently, if a

different outcome in the second action “would nullify the

initial judgment or would impair rights established in

the initial action,” preclusion principles would be at play.

Restatement (Second) § 22(b), at 185; Wright & Miller §

4414.

The third criterion was explained as follows:

Claim preclusion generally “does not bar claims

that are predicated on events that postdate

the filing of the initial complaint.” Whole

Woman’s Health v. Hellerstedt, 579 U.S.

– – – –, – – – –, 136 S .Ct . 2 2 9 2 , 2 3 0 5 , 19 5

L.Ed.2d 665 (2016) (internal quotation marks

omitted); Lawlor v. National Screen Service

Corp., 349 U.S. 322, 327–328, 75 S.Ct. 865,

99 L. Ed. 1122 (1955) (holding that two suits

were not “based on the same cause of action,”

because “[t]he conduct presently complained of

was all subsequent to” the prior judgment and

it “cannot be given the effect of extinguishing

claims which did not even then exist and which

could not possibly have been sued upon in the

previous case”). This is for good reason: Events

that occur after the plaintiff files suit often give

rise to new “[m]aterial operative facts” that “in

themselves, or taken in conjunction with the

antecedent facts,” create a new claim to relief.

Restatement (Second) § 24, Comment f, at 203;

18 J. Moore, D. Coquillette, G. Joseph, G. Vairo,

& C. Varner, Federal Practice § 131.22[1], p.

131–55, n. 1 (3d ed. 2019) (citing cases where

“[n]ew facts create[d a] new claim”).

Lucky Brand, 140 S. Ct. at 1595-96.

Pierson’s suit as a third party beneficiary of 25 USC

5321 © (3) (A) against Hudson meets all of the tests of

Lucky Brand. Pierson v. Hudson and Pearson v. Thorne,

the two suits here, are grounded on different conduct, by

different defendants. They thus did not share a “common

nucleus of operative facts.”

Pierson also meets the standard that a different

judgment in the second action will not impair or destroy

rights or interests established by the judgment entered

in the first action. The damages Pierson seeks to recover

from Hudson are different and have nothing to do with the

nucleus of facts at issue in Pearson v. Thorne-- Pierson’s

loss of her truck and attendant damages. The Swinomish

tribe’s right to keep the truck and Hudson’s right to be free

of any monetary damages that could have been assessed

against Thorne will not be impaired if Pierson prevails

in the present action.

Pierson also meets the third criterion of Lucky

Brand because her suit against Hudson is predicated on

events that postdate the filing of the initial complaint in

Pierson v. Thorne. Pearson’s suit against Thorne was

based upon his action in seizing and forfeiting her truck

and the resulting damages, loss of use of truck and

deprivation of value of truck. Pierson’s suit against Hudson

is based on her contention that her right as a third party

beneficiary of 25 USC 5321 (c) (3) (A) was breached when

Hudson did not insert into the Swinomish policy a waiver

of the right to assert the defense of Indian sovereignty

in the defense of a tort claim against a person covered

under the Hudson policy. This omission by Hudson enabled

Thorne’s attorneys, hired by Hudson, long after January

21, 2015 when Pierson’s truck was seized by Swinomish

tribal police, to plead the defense of Indian sovereignty

and thereby obtain dismissal of the suit against Thorne.

The pleading of that defense, which occurred after the

filing of the complaint, is the proximate cause of the

plaintiff’s injuries. These are the actions that Hudson

is responsible for. They are events separate and apart

from Thorne’s action in seizing and participating in the

forfeiture of Pierson’s truck. Hudson’s violation of 25

USC 5321 (c) (3) (A) was a breach of an obligation owed

to Pierson as a third party beneficiary of that statute.

The breach denied her statutory right to litigate against

persons covered by Hudson’s policy without having to

contend with the defense of tribal sovereignty. Thus

the damages Pierson seeks to recover from Hudson are

different and have nothing to do with Pierson’s loss of her

truck. The damages Pierson seeks include her loss of time

and attorney fees expended in “fake” litigation, where

the court and plaintiff’s counsel had to struggle mightily

with the defense of Indian sovereignty when Congress’

intention was that the defense not be asserted. 2

3. The issue and/or claim and privity upon which the

estoppel is based does not meet the definition of

issue/ claim and privity as set forth in Thompson

v. King County 163 Wa. App. 184 (2011).

The appropriate analysis under Washington State

law is shown by Thompson v. King County, 163 Wa. App.

184 (2011). There, the court held that inmate Thompson’s

action against King County for damages resulting from

sexual assault was not barred by the prior dismissal on

the merits of Thompson’s lawsuit against two guards, even

though the county would have been vicariously liable if the

suit against the guards had been successful. The Court

of Appeals wrote:

The nature of Thompson’s claim brings him

within these exceptions. With respect to the first

exception, the present action alleges that the

county is responsible for the maintenance and

operation of the jail. This amounts to a colorable

claim that as a custodian, the county is liable

for breach of a duty that arises independently

of its vicarious liability for negligence by its

correctional officers. See, e.g., Shea v. City

of Spokane, 17 Wash.App. 236, 562 P.2d 264

(1977), aff’d, 90 Wash.2d 43, 578 P.2d 42 (1978).

With respect to the second exception, officers

2. It should be noted that the defense of Indian sovereignty

was a complete defense until April of 2017 when the Supreme Court

decided Lewis v. Clarke, 137 S. Ct.1285 (2017).

McMillen and Weirich were dismissed in the

first action on the basis of a defense personal

to themselves: that they had no knowledge

of Thompson being harassed or raped. Their

defense does not rule out the possibility that

other correctional officers did have knowledge

and did fail to protect Thompson, 163 Wa. App.

at 196.

Like the county in Thompson, Hudson has a duty that

arises independently of any obligation it might have had

to cover Thorne—the defendant in the first lawsuit—for

his alleged tort liability. The independent duty of Hudson

is to comply with the statutory mandate to include in

its policies a specific provision requiring waiver of a

sovereignty defense.

Pierson is entitled to relief for the additional reason

that Hudson is not in privity with Thorne except insofar

as Thorne might have been held liable under the policy.

In that circumstance, Hudson would have privity, just as

there was privity between the two officers in Thompson

and King County. But like King County, Hudson is solely

liable for its own actions—in this case, the breaching of

25 USC 5321 (c) (3) (A).

The application of collateral estoppel cannot

satisfy the 4th component to the application of

collateral estoppel, that is, that the application

of the estoppel would not work an injustice,

because the court did not resolve the issue/or

claim and plaintiff was not afforded a full and

fair opportunity to be heard on the issues and

claims she raises against Hudson in Pearson

v. Thorne.

Finally, Hudson cannot satisfy the 4th component to

the application of collateral estoppel, that is, that the

application of the estoppel would not work an injustice.

The federal statute in play, 25 USC 5321 (c) (3) A),

is specially passed to allow tort claimants to pursue

litigation against persons covered under the policy without

the difficulties that arise when the defense of Indian

sovereignty is injected into the litigation. The doctrine

of collateral estoppel has to be stretched considerably to

justify its application in this case, and to do so nullifies the

intention of Congress to create a system that allows tort

victims to obtain compensation readily while at the same

time preserving the sovereignty of Indian tribes. If the

insurance policies issued to the tribes do not contain the

required waiver, tort victims will not be able to recover,

and Hudson will be able to keep the premiums it receives

without ever having to make a payout.

In connection with the fourth factor—estoppel must

not work an injustice—Washington cases emphasize that

the party against whom the doctrine is asserted must have

had a full and fair opportunity to litigate the issue in the

earlier proceeding. Christensen v. Grant County Hospital,

152 Wash2d 299, 306 (2004); Nielson v. Spanaway Gen.

Med. Clinic, Inc., 135 Wash. 2d 255, 264-65 (1998). If not,

the estoppel works an injustice. Nielson is the only case

counsel is aware of where collateral estoppel was applied

to dismiss a cause of action against a litigant who was not

a party in the original action. But it is distinguished from

the present case because the injured plaintiff did have

the opportunity in the first case to argue for and obtain

the full measure of damages caused by a series of acts of

medical malpractice. Such is not the case here where the

damages Pierson seeks from Hudson were not litigated

or determined in the earlier litigation against Thorne.

Pierson has not had a full and fair opportunity to be heard

on the issues and claims she raises against Hudson.

CONCLUSION

This case is the culmination of many cases in which

litigants have sought and been denied recovery for tort

claims against tribal police officers engaged in the practice

of seizing and forfeiting automobiles owned by nontribal

members. At long last, petitioner discovered 25 USC

5321 (c) (3) (A) and reasoned that Hudson breached its

obligation to write into its policies a waiver of any right it

might otherwise have to raise as a defense the sovereign

immunity of an Indian tribe from suit.

At its core, this case raises the issue of whether

25 USC 5321 (c) (3) (A) has been ignored by Hudson

Insurance, which has and continues to dominate the

tribal liability insurance market, since Congress passed

the law in 1990. This case presents the story of a series

of tort lawsuits against tribal officers brought by non

Native Americans whose automobiles were seized and

confiscated. The tribal officers sued were represented by

lawyers appointed by Hudson. The officers were covered

under the Hudson policy for liability. The Hudson policy

was purchased by the Secretary of the Interior pursuant

to 25 USC 5321 (c) (3) (A) for the benefit of the Swinomish

Tribe and the United States. All tort plaintiffs suing tribal

officers covered under the policy have been dismissed

when attorneys hired by Hudson to defend the claim have

obtained dismissal based upon the assertion of the defense

of Indian sovereignty.

Because the successful application of the doctrine of

collateral estoppel would vindicate the use by Hudson

to conceal its systematic violation of federal law, the

application would work an injustice under Washington law.

The 9th circuit opinion incorrectly interpreted and applied

Washington law. Because Hudson is violating federal

law, it should be barred the use of res judicata or issue

preclusion to conceal its systematic violation of federal

law which has nullified the effect of federal remedial

legislation mandated by 25 USC 5321 (c) (3) (A).

This case warrants review under this court’s Rule

10 (c) because both Washington State appellate courts

and this instant 9th circuit opinion have not decided and

resolved an important question of federal law that has

not been, but should be, settled by this Court, namely

the operation of a federal remedial statute 25 USC 5321

For this reason, this case meets the criteria for review.

Petitioner’s breach of contract claim against Hudson is

not identical to the claims decided in prior litigation. This

claim was not decided in prior litigation. Petitioner did not

have a full and fair opportunity to litigate this issue. In

addition, Hudson is not in privity with Thorne. Petitioner’s

claim is distinct and petitioner is entitled to prevail under

Thompson v. King County, 163 Wa. App. 184 (2011).

Dated this 21st day of April, 2021 at Bellingham,

Washington

Respectfully submitted,

William Johnston

Counsel of Record

401 Central Avenue

Bellingham, WA 98225

(360) 676-1931

wjtj47@gmail.com

Counsel for Petitioner

APPENDIX

Appendix A —Appendix

memorandum

of the

united states court of appeals for the

ninth circuit, filed december 17, 2020

United States Court of Appeals

for the Ninth Circuit

No. 20-35185

SUSAN PIERSON, a single person,

Plaintiff-Appellant,

HUDSON INSURANCE COMPANY, a New York

corporation; ODYSSEY REINSURANCE

COMPANY, a Connecticut corporation;

ODYSSEY RE HOLDINGS CORP., a Delaware

corporation; ALLIANT INSURANCE

SERVICES, INC., a California corporation;

and ALLIANT SPECIALTY INSURANCE

SERVICES, INC., a California corporation,

a subsidiary of Alliant Insurance

Services, Inc., DBA Tribal First;

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

D.C. No. 2:19-cv-00289-JCC

John Coughenour, District Judge, Presiding

Appendix A

MEMORANDUM*

December 7, 2020**, Submitted, Seattle, Washington

December 17, 2020, Filed

Before: MILLER and BRESS, Circuit Judges, and

BASTIAN,*** Chief District Judge.

Susan Pierson appeals the district court’s dismissal

of her case for failure to state a claim on issue preclusion

and statute of limitations grounds. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

(1) Standard of Review

“We review the district court’s grant of a motion to

dismiss de novo.” Garity v. APWU Nat. Lab. Org., 828

F.3d 848, 854 (9th Cir. 2016) (quoting Knievel v. ESPN,

393 F.3d 1068, 1072 (9th Cir. 2005)). “When ruling on a

motion to dismiss, we accept all factual allegations in the

complaint as true and construe the pleadings in the light

most favorable to the nonmoving party.” Id. at 854 (quoting

Knievel, 393 F.3d at 1072). “A Rule 12(b)(6) dismissal may

be based on either a ‘lack of cognizable legal theory’ or

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Stanley Allen Bastian, United States Chief

District Judge for the Eastern District of Washington, sitting by

designation.

Appendix A

‘the absence of sufficient facts alleged under a cognizable

legal theory.’” Johnson v. Riverside Healthcare Sys., LP,

534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v.

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).

(2) Issue Preclusion

Appellant argues that the district court improperly

dismissed certain of her claims on the basis of issue

preclusion. A federal court sitting in diversity jurisdiction

applies the preclusion law of the state in which it sits.

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497,

508-09, 121 S. Ct. 1021, 149 L. Ed. 2d 32 (2001). Under

Washington law, a party asserting issue preclusion “must

show (1) the issue in the earlier proceeding is identical to

the issue in the later proceeding; (2) the earlier proceeding

ended with a final judgment on the merits; (3) the party

against whom [issue preclusion] is asserted was a party,

or in privity with a party, to the earlier proceeding; and

(4) applying [issue preclusion] would not be an injustice.”

Schibel v. Eymann, 189 Wn.2d 93, 399 P.3d 1129, 1132

(Wash. 2017).

The parties agree that the prior proceeding ended in

a final judgment on the merits and that Appellant was a

party to the prior proceeding. They dispute only whether

the issues in the two cases were identical and whether

application of the doctrine would cause injustice.

Appendix A

(a) Identity of Issues

For issue preclusion to apply, the issue decided in the

earlier proceeding must have been “actually litigated

and necessarily determined” in that proceeding. Scholz

v. Wash. State Patrol, 3 Wn. App. 2d 584, 416 P.3d 1261,

1267 (Wash. Ct. App. 2018) (quoting Shoemaker v. City

of Bremerton, 109 Wn.2d 504, 745 P.2d 858, 860 (Wash.

1987) (en banc)). In the prior proceeding, the district

court concluded that tribal sovereign immunity barred

Appellant’s claims against Swinomish tribal police officers

arising out of the seizure and forfeiture of her truck. In

the instant proceeding, the district court concluded that,

although Appellant asserted that Appellee insurance

companies violated 25 U.S.C. § 5321(c)(3)(A) by failing to

include a waiver of the tribal sovereign immunity defense

in policies issued to tribes and therefore deprived her of

her due process right to litigate tort claims, she was really

trying to rehash the issue of tribal sovereign immunity.

Appellant argues that her claims in this case are

different and that the prior proceeding did not address

her claim under § 5321. But Appellant’s claims in both the

prior proceeding and the instant proceeding turn on the

identical issue of whether the tribal officers were entitled

to immunity. This issue has already been decided against

Appellant. Thus, as the district court correctly recognized,

the issues are identical.

Appendix A

(b) Whether Application of Issue Preclusion

Would Cause Injustice

Appellant argues that applying issue preclusion would

cause an injustice because she would be denied her right

to pursue her tort litigation without interference from

the tribal sovereign immunity defense. She argues that

she did not have a full and fair opportunity to litigate her

claim under § 5321(c)(3)(A).

For this element, “Washington courts look to whether

the parties to the earlier proceeding received a full and

fair hearing on the issue in question.” Schibel, 399 P.3d at

1133-34 (quoting Thompson v. Wash. Dep’t of Licensing,

138 Wn.2d 783, 982 P.2d 601, 608 (Wash. 1999) (en banc)).

A party has a full and fair opportunity to litigate the

contested issue if the party had “sufficient motivation

for a full and vigorous litigation of the issue.” Weaver v.

City of Everett, 4 Wn. App. 2d 303, 421 P.3d 1013, 1019

(Wash. Ct. App. 2018) (quoting Hadley v. Maxwell, 144

Wn.2d 306, 27 P.3d 600, 604 (Wash. 2001)). Application of

issue preclusion here will not cause injustice. At its core,

Appellant’s argument is grounded in her belief that the

prior proceeding was wrongly decided and that tribal

sovereign immunity was improperly applied to dismiss

her claim. That argument should have been raised via a

direct appeal of that case. Appellant had a full and fair

opportunity to litigate her claim based on 25 U.S.C. §

5321(c)(3)(A) and to join the insurance companies in the

prior proceeding. She chose not to. This is not an injustice

sufficient to avoid application of issue preclusion.

Appendix A

Accordingly, because all four elements of issue

preclusion are satisfied, Appellant’s claims are barred.

(3) Other Arguments

In their responding brief, Appellees raise a number of

other grounds on which the Court could affirm the district

court. Appellant did not challenge the district court’s

dismissal of her other claims on statute of limitations

grounds, and that argument is waived. Brown v. RawsonNeal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016).

We need not consider Appellees’ other asserted grounds

for affirmance.

AFFIRMED.

APPENDIX B — Appendix

OPINIONBOF THE UNITED

STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF WASHINGTON AT SEATTLE,

FILED FEBRUARY 6, 2020

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

WASHINGTON AT SEATTLE

SUSAN PIERSON,

Plaintiff,

HUDSON INSURANCE COMPANY,

A NEW YORK CORPORATION, et al.,

Defendants.

February 6, 2020, Decided;

February 6, 2020, Filed

HONORABLE JOHN C. COUGHENOUR, UNITED

STATES DISTRICT JUDGE.

CASE NO. C19-0289-JCC

ORDER

This matter comes before the Court on Defendants’

motion to dismiss (Dkt. No. 31). Having thoroughly

considered the parties’ briefing and the relevant record,

the Court finds oral argument unnecessary and hereby

GRANTS the motion for the reasons explained herein.

Appendix B

BACKGROUND

On January 21, 2015, Plaintiff was pulled over and

arrested by a Swinomish police officer while driving on

tribal land. (Dkt. No. 2 at 19–20.) Swinomish police officers

subsequently seized Plaintiff’s pickup truck because it had

been used to transport illegal narcotics onto tribal land.

(Id. at 20.) Officer Thorne, a Swinomish police officer, told

Plaintiff that she would be unable to retrieve her pickup

because the department was procuring a search warrant

for the vehicle and the tribe was initiating forfeiture

proceedings. (Id.) Plaintiff failed to challenge the tribe’s

forfeiture proceedings in tribal court and subsequently

brought suit against Officer Thorne in Skagit County

Superior Court, seeking an injunction and damages under

42 U.S.C. § 1983. See Pearson v. Thorne,1 Case No. C150731-JCC, Dkt. No. 2-1 (W.D. Wash. 2015). The case was

later removed to this Court. Id., Dkt. No. 1. Thorne filed a

motion for summary judgment in March 2016, which was

granted by this Court in June 2016. Id., Dkt. Nos. 24, 33.

This Court dismissed Plaintiff’s complaint against Thorne

because (1) Officer Thorne enjoyed sovereign immunity,

(2) Officer Thorne was not an appropriate defendant under

§ 1983 because he was not acting under the color of state

law, and (3) Plaintiff failed to exhaust her tribal remedies.

Id., Dkt. No. 33 at 6–8. Plaintiff attempted to challenge

Officer Thorne’s assertion of sovereign immunity in that

1. In her complaint, Plaintiff refers to her first case as Pierson

v. Thorne rather than Pearson v. Thorne. Plaintiff states her name

was spelled incorrectly in the first lawsuit. (Dkt. No. 1 at 5.) For

purposes of this order, the Court refers to the first case by its official

name—Pearson v. Thorne.

Appendix B

suit, alleging that it was contrary to Washington Revised

Code Chapter 10.92, a Washington state law that requires

that insurance companies insuring tribes waive sovereign

immunity in relevant insurance policies. See id., Dkt.

No. 32 at 2–3. No insurance companies were named as

defendants in the prior lawsuit.

Plaintiff brought this suit in February 2019, alleging

that (1) Hudson’s insurance contract was implicitly

amended by 25 USC § 5321(c)(3)(A) to contain a waiver of

sovereign immunity, it breached that contract by asserting

sovereign immunity, and Plaintiff is the intended thirdparty beneficiary to that contract, and (2) Hudson is liable

to Plaintiff for its violation of 25 U.S.C. § 5321(c)(3)(A).

(Dkt. No. 1 at 10–12.) Plaintiff also asserts that her rights

were violated under 42 U.S.C. §§ 1981, 1982, 1983, 1984,

1985, and 1988. (Id. at 13–14.)

II. DISCUSSION

Standard of Review

A defendant may move for dismissal when a plaintiff

“fails to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted

as true, to state a claim for relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S. Ct. 1937,

173 L. Ed. 2d 868 (2009). A claim has facial plausibility

when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant

is liable for the misconduct alleged. Id. at 678. Although

10a

Appendix B

the Court must accept as true a complaint’s well-pleaded

facts, conclusory allegations of law and unwarranted

inferences will not defeat an otherwise proper Rule 12(b)

(6) motion. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th

Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d

979, 988 (9th Cir. 2001). The plaintiff is obligated to provide

grounds for her entitlement to relief that amount to more

than labels and conclusions or formulaic recitation of the

elements of a cause of action. Bell Atl. Corp. v. Twombly,

550 U.S. 544, 545, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

“[T]he pleading standard Rule 8 announces does not

require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678. A dismissal under

Federal Rule of Civil Procedure 12(b)(6) “can [also] be

based on the lack of a cognizable legal theory.” Balistreri

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

B. Collateral Estoppel

When a federal court sits in diversity jurisdiction,

the court must apply the state’s law of collateral estoppel.

See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.

497, 508, 121 S. Ct. 1021, 149 L. Ed. 2d 32 (2001). Under

Washington law, collateral estoppel applies where: “(1) the

issue in the earlier proceeding is identical to the issue in

the later proceeding, (2) the earlier proceeding ended with

a final judgment on the merits, (3) the party against whom

collateral estoppel is asserted was a party, or in privity

with a party, to the earlier proceeding, and (4) applying

collateral estoppel would not be an injustice.” Schibel v.

Eymann, 189 Wn.2d 93, 399 P.3d 1129, 1132 (Wash. 2017).

11a

Appendix B

Identical Issues

The purpose of collateral estoppel is not “to deny

a litigant his day in court,” but to “prevent retrial of

one or more of the crucial issues or determinative facts

determined in previous litigation.” Luisi Truck Lines, Inc.

v. Wash. Utils. and Transp. Comm’n, 72 Wn.2d 887, 435

P.2d 654, 659 (Wash. 1967). If a new argument is raised in

the second action regarding something already litigated

in the first action, “the prior determination of the issue

is conclusive” even if the “argument relevant to the issue

was not in fact expressly pleaded.” 18 Moore’s Federal

Practice § 132.02(2)(c); see also Paulo v. Holder, 669 F.3d

911, 917–18 (“The fact that a particular argument against

[a particular issue] was not made . . . and not addressed . . .

does not mean that the issue . . . was not decided.”).

In Pearson v. Thorne, Plaintiff argued that Thorne

could not assert sovereign immunity under RCW 10.92,

which requires insurance companies to waive tribal

sovereign immunity for their insureds. Pearson, Case No.

C15-0731-JCC, Dkt. No. 32 at 2-3. Now, Plaintiff asserts

that Thorne should not have been protected by sovereign

immunity because of 25 U.S.C. § 5321—a statute bearing

a strong resemblance to RCW 10.92. (Dkt. No. 1 at 9.)

Specifically, § 5321(c)(3)(A), provides that an insurance

company insuring a tribe must include a provision within

the policy that “waive[s] any right it may have to raise as

a defense the sovereign immunity of an Indian tribe from

suit” to the extent of the coverage. Although Plaintiff

raises a new argument in support of her assertion, she

is litigating the same issue—namely, whether Thorne

12a

Appendix B

should have been protected by sovereign immunity in the

original lawsuit.

Final Judgment on the Merits

“[A] grant of summary judgment constitutes a final

judgment on the merits and has the same preclusive effect

as a full trial of the issue.” Nat’l Union Fire Ins. Co. of

Pittsburgh v. Nw. Youth Servs., 97 Wn. App. 226, 983 P.2d

1144, 1148 (Wash. Ct. App. 1999). The previous lawsuit,

Pearson v. Thorne, was decided on summary judgment

on the merits.

Same Party

Both parties to the lawsuit do not have to be the same

for collateral estoppel to apply—rather, only the party

against whom collateral estoppel is asserted must be

the same. See Schibel, 399 P.3d at 1132. Pierson was the

Plaintiff in the prior lawsuit and is the party against whom

collateral estoppel is being asserted in this case. Compare

Pearson, Case No. C15-0731-JCC, Dkt. No. 1 with (Dkt.

No. 1.) Therefore, this element is satisfied.

Injustice

If the application of estoppel would be unjust under the

circumstances, preclusion need not apply. This element of

collateral estoppel is generally concerned with procedural

unfairness. Christensen v. Grant Cty. Hosp. Dist. No.

1, 152 Wn.2d 299, 96 P.3d 957, 962 (Wash. 2004). In

determining whether collateral estoppel applies, “whether

13a

Appendix B

the decision in the earlier proceeding was substantively

correct is generally not a relevant consideration in

determining whether application of collateral estoppel

would work an injustice.” Id. at 966.

In this case, there is nothing to suggest that the

previous litigation was procedurally unfair. Plaintiff

argues that estoppel would work an injustice on her

because (1) Plaintiff had a right to pursue her tort claim

without the defense of sovereignty, (2) Hudson would

benefit from its violation of § 5321(c)(3)(A), and (3) applying

collateral estoppel would undermine the enforcement of

federal law. (Dkt. No. 32 at 11.) But these considerations

are improper in collateral estoppel analysis. This Court

cannot pass judgment on whether sovereign immunity

was properly asserted in the previous action. Rather, the

relevant consideration is whether Plaintiff received a “full

and fair” opportunity to be heard. Schibel, 399 P.3d at

1134. Plaintiff’s failure to raise § 5321(c)(3)(A) in the prior

lawsuit is not a sufficient reason to overcome collateral

estoppel because Plaintiff had a full and fair opportunity

to dispute sovereign immunity in the prior litigation.

Sovereign immunity is essential to Plaintiff’s § 5321

claim, therefore Plaintiff is collaterally estopped from

bringing her claims under § 5321 in this case. Likewise,

sovereign immunity is essential to Plaintiff’s § 1983 claim,

which was explicitly decided in Plaintiff’s previous lawsuit.

Therefore, Plaintiff’s claim under § 1983 is also barred by

collateral estoppel.

14a

Appendix B

Statute of Limitations

“Because the federal civil rights statutes lack statutes

of limitations of their own, the U.S. Supreme Court has

directed the lower federal courts in such cases to apply

the general state law limitations period for personal injury

claims.” Cloud ex rel. Cloud v. Summers, 98 Wn. App. 724,

991 P.2d 1169, 1173 (Wash. Ct. App. 1999). Washington

has a personal injury statute of limitations of three years.

Wash Rev. Code § 4.16.080.

Defendants argue that the statute of limitations on

Plaintiff’s civil rights claims began to run on May 20,

2015, the day Officer Thorne filed his answer in Pearson

v. Thorne asserting sovereign immunity. (Dkt. No. 31 at

13–14.) Plaintiff does not dispute Defendants’ claim that

the statute of limitations has run on Plaintiff’s civil rights

claims. (Id. at 12.) Nor does Plaintiff state exactly how or

why she is entitled to relief from Defendant under these

provisions. Plaintiff’s claims under 42 U.S.C. §§ 1981,

1982, 1983, 1984, 1985, and 1988 are thus time-barred.

See Wash. Rev. Code § 4.16.080.

III.

CONCLUSION

For the foregoing reasons, Defendants’ motion to

dismiss (Dkt. No. 31) is GRANTED and the case is

DISMISSED with prejudice. The Court hereby STRIKES

Plaintiff’s motion to compel (Dkt. No. 34) and Defendants’

motion to stay (Dkt. No. 38) and DIRECTS the Clerk to

close the case.

15a

Appendix B

DATED this 6th day of February 2020.

/s/ John C. Coughenour

John C. Coughenour

UNITED STATES

DISTRICT JUDGE

16a

Appendix COF THE UNITED

APPENDIX C — OPINION

STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF WASHINGTON AT SEATTLE,

FILED JUNE 20, 2016

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

WASHINGTON AT SEATTLE

SUSAN PEARSON,

Plaintiff,

DIRECTOR OF THE DEPARTMENT OF

LICENSING, A SUBDIVISION OF THE STATE

OF WASHINGTON, IN HIS/HER OFFICIAL

CAPACITY, et al.,

Defendants.

June 20, 2016, Decided;

June 20, 2016, Filed

HONORABLE John C. Coughenour,

UNITED STATES DISTRICT JUDGE.

CASE NO. C15-0731-JCC

ORDER GRANTING MOTIONS

FOR SUMMARY JUDGMENT

This matter comes before the Court on the motions

for summary judgment by Defendants Director of the

17a

Appendix C

Department of Licensing (Dkt. No. 21) and Sergeant

Andrew Thorne (Dkt. No. 24). Having thoroughly

considered the parties’ briefing and the relevant record,

the Court finds oral argument unnecessary and hereby

GRANTS the motions for the reasons explained herein.

BACKGROUND

The relevant facts are not in dispute. On January

21, 2015, Swinomish Police Department Officer Hans

Kleinman pulled over Plaintiff Susan Pearson for failing

to obey a stop sign. (Dkt. No. 25-1 at 1.) Both the traffic

violation and the traffic stop occurred on tribal trust

land within the external boundaries of the Swinomish

Reservation. (Id.) Officer Kleinman ran Pearson’s name

through a driver’s check and learned that her license

was suspended three days earlier for unpaid tickets. (Id.)

Officer Kleinman arrested Pearson. (Id.) During the

search incident to arrest, Officer Kleinman found evidence

of controlled substances on Pearson’s person. (Id.) The

tribal police officers subsequently seized Pearson’s 1999

GMC S-10 pickup truck. (Dkt. No. 2-1 at 3; Dkt. No. 25-2

at 2.)

Two days after Pearson’s arrest, Defendant Andrew

Thorne, a sergeant with the Swinomish Police Department,

received a call from Pearson. (Dkt. No. 26-1 at 2.) Pearson

asked where she should pick up her vehicle. (Id.) Sgt.

Thorne responded that Pearson could not retrieve her

vehicle because the Swinomish Police Department was

procuring a search warrant. (Id.) Pearson then asked when

her vehicle would be returned. (Id.) Sgt. Thorne responded

18a

Appendix C

that the Tribe intended to initiate forfeiture proceedings

because the vehicle was used to transport illegal narcotics

on tribal land. (Id.) Sgt. Thorne advised that Pearson

would be receiving a seizure notice from the Swinomish

Tribal Court with a hearing date and that Pearson could

retain an attorney if she wished. (Id.)

Upon obtaining a warrant, the Swinomish Police

Department searched Pearson’s vehicle and discovered

evidence of controlled substances. (Dkt. No. 25-3 at 2.)

The Swinomish Tribe gave Pearson notice of the

proceeding to forfeit her vehicle pursuant to tribal law.

(Dkt. No. 25-4 at 2; Dkt. No. 25-5 at 2; Dkt. No. 25-6 at

2.) Pearson contacted the Swinomish Tribal Court and

indicated that she was aware of the matter. (Dkt. No.

25-8 at 2.) Ultimately, though, no attorney entered an

appearance on her behalf, and Pearson did not file an

answer. (See id. at 3.) After 20 days, the Swinomish Tribal

Court entered an order forfeiting Pearson’s ownership

pursuant to Swinomish tribal laws. (Id. at 2-3.)

Meanwhile, Pearson requested that the Washington

State Department of Licensing (Department) place a hold

on her certificate of title. (Dkt. No. 23 at 2.) Based on this

request, the Department flagged Pearson’s certificate

of title, indicating to the Department that ownership of

the vehicle could not be transferred without a request

by Pearson or a Washington State court order. (Id.) The

Department has no records indicating that the Swinomish

Tribe has attempted to transfer title to Pearson’s vehicle.

(Id.) As of the time of filing of these motions, Pearson’s

19a

Appendix C

truck was still in the custody of the Swinomish Police

Department. (Dkt. No. 25 at 3.)

On March 14, 2015, Pearson filed a complaint for

damages and declaratory and injunctive relief against the

Director of the Department in her official capacity and

against several Swinomish tribal police officers, including

Sgt. Thorne. (Dkt. No. 2-1.) Pearson asks this Court to

enjoin the Department from transferring the certificate

of ownership to itself pursuant to the Swinomish Tribe’s

forfeiture order, and to award judgment against the tribal

police officers for damages under 42 U.S.C. § 1983. (Dkt.

No. 2-1 at 6.)

II. DISCUSSION

Summary Judgment Standard

The Court shall grant summary judgment if the

moving party shows that there is no genuine dispute as

to any material fact and that the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). In

making such a determination, the Court must view the

facts and justifiable inferences to be drawn therefrom in

the light most favorable to the nonmoving party. Anderson

v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L.

Ed. 2d 202 (1986). Once a motion for summary judgment

is properly made and supported, the opposing party must

present specific facts showing that there is a genuine issue

for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,

89 L. Ed. 2d 538 (1986). Material facts are those that

20a

Appendix C

may affect the outcome of the case, and a dispute about a

material fact is genuine if there is sufficient evidence for

a reasonable jury to return a verdict for the non-moving

party. Anderson, 477 U.S. at 248-49. Ultimately, summary

judgment is appropriate against a party who “fails to

make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986).

B. Motion by Director of Department of Licensing

Pearson alleges that the Department has a practice

of transferring vehicle ownership to itself pursuant to

tribal forfeiture orders, which violates the law and the

Department’s own protocols. (Dkt. No. 2-1 at 4.) Pearson

asks the Court to enjoin the Director of the Department

from changing the certificate of title of Pearson’s truck,

because the Swinomish Tribe had no authority to seize

the vehicle. (Id.)

The Director moves for summary judgment, arguing

that (1) Pearson lacks standing, because she fails to show

past injury or a significant possibility of future harm and

(2) the Director is immune from civil suits arising from

actions in connection with vehicle registration.1 (Dkt. No.

21 at 5.) The Court agrees on both counts.

1. The Director also argues that, to the extent Pearson alleges

a § 1983 claim against her, the complaint does not sufficiently plead

a claim. (Dkt. No. 21 at 5.) Pearson’s response brief acknowledges

that she “only seeks a declaration or injunction against the Director,”

not damages under § 1983. (Dkt. No. 27 at 10.)

21a

Appendix C

Standing

The Director first argues that Pearson lacks standing

to seek an injunction against transfer of her vehicle

title. (Id.) Article III requires all litigants to establish

a case and controversy in order to invoke this court’s

jurisdiction. Simon v. E. Ky. Welfare Rights Org., 426 U.S.

26, 37, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976). Standing

has three requirements: (1) an injury in fact, meaning

“a harm suffered by the plaintiff that is concrete and

actual or imminent”; (2) causation, meaning “a fairly

traceable connection between the plaintiff’s injury and

the complained-of conduct of the defendant”; and (3)

redressability, meaning “a likelihood that the requested

relief will redress the alleged injury.” Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 102-03, 118 S. Ct. 1003, 140

L. Ed. 2d 210 (1998) (internal quotations omitted). Where

a plaintiff seeks only declaratory and injunctive relief, he

or she must also show a “very significant possibility of

future harm.” San Diego County Gun Rights Comm. v.

Reno, 98 F.3d 1121, 1126 (9th Cir. 1996).

Here, the future harm is the transfer of title from

Pearson to the Department. But, Pearson has not shown

a “very significant possibility” that this harm will occur.

The Tribe has not attempted to transfer the title. The

Department has flagged Pearson’s certificate of title,

meaning that the title cannot be transferred unless

Pearson authorizes it or a Washington State court orders

it. These limitations are encapsulated in the Department

policy requiring “that the tribal court order be ‘converted

to judgment’ in a Washington Superior Court that the

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tribal offer is enforceable.” (Dkt. No. 23 at 2.) Factually

speaking, it seems very unlikely that the Department will

unlawfully obtain title to Pearson’s truck.

Pearson protests that the Department has previously

argued that its policy would prevent transfer of title, yet it

still assumed title to the subject vehicles. (Dkt. No. 27 at

4.) She cites two cases as examples: Candee Washington

v. Director Skagit County, Skagit County Cause No. 152-00293-0 and Jordynn Scott v. Director of Department

of Licensing, Whatcom County Cause No. 15-2-00301-8.

(Dkt. No. 27 at 2.) These cases involve the transfer of a

certificate of title pursuant to a tribal court order that

was not converted to judgment in a Washington superior

court. But, as the Director explains, these cases triggered

the Department to more stringently enforce its policy and

the corresponding regulations. (Dkt. No. 23 at 3; Dkt. No.

21 at 4.) This further negates the likelihood that the same

harm will befall Pearson.

Pearson also asserts that there is another case

involving a non-Native American, Narin Sin, whose vehicle

was seized by the Tulalip Tribe and whose certificate of

title was transferred by the Department. (Dkt. No. 27 at

2.) Pearson provides no evidence of this occurrence, nor

any explanation of when the alleged seizure and transfer

occurred. In response, the Department submits an

affidavit showing that Narin Sin had a vehicle forfeited by

the Tulalip Tribe, but that there is no record of the vehicle’s

title being transferred pursuant to a tribal forfeiture. (Dkt.

No. 31 at 2.) This fact does not make it significantly likely

that Pearson’s title will be impermissibly transferred. In

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sum, Pearson fails to demonstrate a sufficient possibility

of future harm to establish standing.

Immunity

The Director further argues that Pearson’s suit is

barred by immunity established under Washington State

law. (Dkt. No. 21 at 5.) Wash. Rev. Code 46.01.310 states:

No civil suit or action may ever be commenced

or prosecuted against the director [of the

Depa r tment of Licensing], the state of

Washington, any county auditor or other agents

appointed by the director, any other government

officer or entity, or against any other person, by

reason of any act done or omitted to be done

in connection with the titling or registration of

vehicles or vessels while administering duties

and responsibilities imposed on the director or

as an agent of the director, or as a subagent of

the director.

(Emphasis added.)

Pearson brought a civil suit against the Director

based on the Department’s alleged practice of improperly

transferring titles—i.e., acts “done . . . in connection with

the titling or registration of vehicles.” It is thus clear that

the Director is immune from the present suit.

Pearson’s claims against the Director are DISMISSED

with prejudice

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Motion by Sergeant Andrew Thorne

Pearson alleges that Sgt. Thorne’s involvement in

seizing and forfeiting her vehicle violated her rights under

the federal and Washington State constitutions. (Dkt.

No. 2-1 at 5-6.) She further asserts that Sgt. Thorne was

acting under color of Washington State law and is thus

liable for damages under § 1983. (Dkt. No. 2-1 at 6.)

Sgt. Thorne argues that the Court should dismiss

Pearson’s claims with prejudice, because (1) Pearson’s

claims is actually an official capacity suit that is foreclosed

by sovereign immunity; (2) Sgt. Thorne was acting under

color of tribal law, not state law; and (3) Pearson failed to

exhaust her tribal remedies. (Dkt. No. 24 at 2-3.) Again,

the Court agrees on all counts.

Sovereign Immunity

Sgt. Thorne first asserts that Pearson’s claim is barred

by sovereign immunity. (Id.) Tribal sovereign immunity

bars suits against a tribe itself, as well as suits against

the tribe’s employees in their official capacities. Miller

v. Wright, 705 F.3d 919, 927-28 (9th Cir. 20 13). Tribal

sovereign immunity generally does not protect tribal

employees who are sued in their individual capacities for

money damages, even if the employees were acting in the

course and scope of their employment. Maxwell v. County

of San Diego, 708 F.3d 1075, 1086-90 (9th Cir. 2013).

However, a “plaintiff cannot circumvent tribal immunity

by the simple expedient of naming an officer of the Tribe

as a defendant, rather than the sovereign entity.” Miller,

705 F.3d at 928 (internal quotations omitted). In such

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cases, “the sovereign entity is the real, substantial party

in interest and is entitled to invoke its sovereign immunity

from suit.” See Cook v. AVI Casino Enters., Inc., 548 F.3d

718, 727 (9th Cir. 2008).

Pearson’s suit rests solely on her argument that the

Swinomish Tribe lacked jurisdiction to seize and forfeit

her truck. Thus, although she sued the tribal officers in

their individual capacity, it is clear that the true defendant

is the Tribe itself. Because Pearson’s suit is “in reality an

official capacity suit,” it is barred by sovereign immunity.

See Maxwell, 708 F.3d at 1089.

Acting Under Color of Tribal Law

Sgt. Thorne further argues that he was not acting

under color of state law. (Dkt. No. 24 at 2-3.) To establish

liability under § 1983, a plaintiff must demonstrate that

(1) the defendant acted under color of state law and (2) the

defendant deprived the plaintiff of a right secured by the

Constitution or laws of the United States. Learned v. City

of Bellevue, 860 F.2d 928, 933 (9th Cir. 1988). The plaintiff

bears the burden of showing that the defendant’s conduct

was performed under color of state law. See id. “[A]ctions

taken under color of tribal law are beyond the reach of

§ 1983.” R.J. Williams Co. v. Fort Belknap Hous. Auth.,

719 F.2d 979, 982 (9th Cir. 1983).

Pearson alleges that Sgt. Thorne “ act[ed] beyond any

authority [he] ha[s] as [a] Swinomish tribal police officer”

and was “acting under color of state law and as [a] General

Authority Washington State Police Officer.” (Dkt. No. 2-1

at 6.) However, she fails to support this assertion. First,

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her argument that the tribal police officers exceeded

their authority is based on the Tribe’s alleged lack of

jurisdiction, which again demonstrates that sovereign

immunity bars this suit. Moreover, the only evidence of

Sgt. Thorne’s involvement in this matter shows that he

merely answered a phone call from Pearson and relayed

information to her. Apart from the fact that this conduct

was related to the forfeiture—which, again, is challenged

on grounds barred by sovereign immunity—Pearson

has not shown that Sgt. Thorne’s actions exceeded his

authority as a tribal officer.

Exhaustion of Tribal Remedies

Finally, Sgt. Thorne asserts that Pearson’s suit is

precluded by her failure to exhaust her tribal remedies.

(Dkt. No. 24 at 2-3.) A party may not challenge tribal

court jurisdiction in federal court until he or she has first

exhausted its remedies in tribal court. National Farmers

Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 85556, 105 S. Ct. 2447, 85 L. Ed. 2d 818 (1985); Allstate Indem.

Co. v. Stump, 191 F.3d 1071, 1073 (9th Cir. 1999). This

requirement is “mandatory,” not discretionary. Marceau

v. Blackfeet Hous. Auth., 540 F.3d 916, 920 (9th Cir. 2008)

(internal quotation omitted); see also Atwood v. Fort Peck

Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir. 2008)

(“Under the doctrine of exhaustion of tribal court remedies,

relief may not be sought in federal court until appellate

review of a pending matter in a tribal court is complete.”).

As discussed above, Pearson’s suit is unquestionably a

challenge to tribal court jurisdiction. It is also undisputed

that Pearson was aware of the forfeiture proceeding, but

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never filed an answer or otherwise responded. She has

not appealed the forfeiture order. She thus has failed

to exhaust her tribal remedies and cannot bring this

challenge in federal court.

Pearson’s Response

As a final note, the Court acknowledges Pearson’s

lackluster—and very late—response to Sgt. Thorne’s

motion. Pearson did not directly acknowledge Sgt.

Thorne’s arguments, instead reiterating her blanket

statement that Sgt. Thorne “is a Washington State police

officer” and confusingly citing a Washington insurance

statute. (Dkt. No. 32 at 2-3.) This was far from sufficient

to survive summary judgment.

Pearson’s claims against Sgt. Thorne are DISMISSED

with prejudice.

III.

CONCLUSION

For the foregoing reasons, Defendants’ motions for

summary judgment (Dkt. Nos. 21, 24) are GRANTED.

Pearson’s claims against the Director of the Department of

Licensing and Sergeant Andrew Thorne are DISMISSED

with prejudice.

DATED this 20th day of June 2016.

/s/ John C. Coughenour

John C. Coughenour

UNITED STATES

DISTRICT JUDGE

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