Petition for Writ of Certiorari — Symon B. Mandawala, Petitioner v. Era Living, LLC, et al.

Supreme Court briefJun 1, 2021

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20° 17

No. 21-

FILED

JUN o I 2021

In The

Supreme (Emirt tff %

States

Symon Mandawala.,

Petitioner,

Era Living LLC.,

Respondents.

On Petition for a Writ of Certiorari to

the Washington State’s Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Symon Mandawala

P.O. Box 5512

San Antoni, TX 78201

(206) 631-5636

Petitioner Pro-se

RldiVEBJUN 11I 2021

gcagaagffy

QUESTIONS PRESENTED

The Question(s) Presented is^

As of Matter of Equal Protection Clause in the

14th Amendment right of the U.S constitution^

(l)(a) while racially civil rights action is pending,

without advisory to the court (court order), can a

corporate

defendant and their representatives

(attorneys) demand reservice of the process to the

plaintiff with the threat of untimely motion to dismiss

without violating 42 U.S.C 1985(2) last clause?

(b)

Does

attorney-client

conspiracy

intercorporation doctrine defenses apply to 42 U.S.C

1985(2) last clause pursuing to its criminal elements of

“impeding, hindering, obstructing, or defeating, in any

manner, the due cause of justice in any state” as

federally classified as criminal in 18 U.S.C 1505 and

3512?

As of matter of Due Process Clause in the 14th

Amendment right of the U.S constitution^

(2)(a)Does a trial judge have the discretion to deny

Plaintiff a one-time Amendment of a complaint or the

service of process when the defendant has not to file

responsive pleading (answer)yet?

(b) Where the state court rule designates insufficient

service defense to be presented within 20days after the

service of process. Does a defendant file notice of

appearance to the court toll the 20 days rule to 124 days

for the defendant to file a motion to dismiss under that

rule?

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of this Court’s Rules, the

petitioner is not a corporation, neither owns 10% or more

of any entity stocks.

}

Ill

TABLE OF CONTENTS

QUESTION PRESENTED

.. 1

CORPORATE DISCLOSURE STATEMENT ....ii

TABLE OF AUTHORITIES

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

OPINIONS BELOW

JURISDICTION

STATEMENT

REASONS FOR GRANTING THE WRIT

I. Washington state courts erroneously views out

-of-court intimidation to civil rights pro-se plaintiff

by the corporate defendant and their attorneys as

courteous legal help to Plaintiff dangerously

undermine the purpose (protection) and the spirit of

42 U.S.C. 1985(2) and 18 U.S.C. 3521

II. Washington State Courts' view of the court has

the discretion to deny the plaintiff a right to Amend

the complaint or process even when the defendants

do not file an answer. It contradicts almost all

federal circuit court rulings on the similar matter

and to their own Washington State superior court

rule 4(h)...........................................................

III. The Washington State Court Rules are

privilege, exempting or not apply to some corporate

defendants such as Era Living LLC, and allowed

untimely of filing motion to dismiss despite

Washington State Court Rule 12 has a 20‘day time

limit(Allowing Wait Then Ambush)

CONCLUSION

APPENDIX..........................................................................

APPENDIX A, Wash..Court of Appeals Decision ... .1*°APPENDIX B, Wash..Superio Court’s Decision.......

APPENDIX C, Order Denying Petition for Review by

Washington State Supreme Court..

APPENDIX D, A threating letter to Petitioner from

Respondant as a support evidence to

the motion to Dismiss (Appx B)........

■«:

TABLE OF AUTHORITIES

Cases

Allen v. Veterans Admin..

749 F.2d 1386, 1388 (9th Cir 1984)

Dussouv v. Gulf Coast investment Corp.,

660 F.2d 594, 603 (5th Cir. 1981)

Griffin v. Breckenridge..

403 U.S. 88, 102 (1971)

Hanratv v. Ostertag..

470 F.2d 1096, 1097(l0th Cir. 1972)

Howiett v. Rose..

496 U.S. 356, 361-383(1990)

5,7

Marcial Ucin, S.A. v. SS Galicia..

_723 F.2d 994,996-97 (1st Cir 1983)

Manning v. Epps..

688 F.3d 177, 183 (5th Cir 2012)

Mayes v. Leipziger..

729 F.2d 605,-607 (9th Cir 1984)

McAndrews v. JA Blackwell Jr.. T.A. Graham, et al..

177 F.3d 1310 (11th Cir. 1999)

Me Gruder v. Phelp.,

608 F.2d 1023, 1025 (5th Cir. 1979)

Miller v. American Export Lines, inc..

313 F.2d 218 n.l(2d Cir. 1963)

Norlock v. City of Garland.

768 F.2d 654, 658 (5th Cir. 1985)

Santos v. State Farm Fire and Cas. Co.

902 F.2d 1092 (2d Cir. 1990

Sinwell v. Shan.

536 F.2d 15 (3d Cir 1976)

Thomas v. Home Depot USA Inc. No..

C06-02705 (N.D. Cal. Jul. 25, 2007)

Trustee of central laborers’ Welfare fund v. lowerv.

924 F.2d 731, 732, rev, denied.

US v. Ames Sintering Co..

927 F.2d 232, 236 (6th Cir. 1990)

US v. Hugh Chalmers Chevrolet'Tovota. inc..

800 F.2d 737, 738 (8th Cir. 1986)

US v. Hughes Aircraft Co..

20 F.3d 974, 978-79 (9th Cir. 1994)

US v. Peters..

732 F.2d 1004, 1007-08 (1st Cir. 1984)

US v. S Vee Cartage Co .

704 F.2d 914, 920 (6th Cir 1983)

U-S. v. Riggs..

314 F.3d 796, 799 (5th Cir 2013)

US v. Tison H. Claude ir.,Marcelino Echevarria

and Scan realty Service, inc..

780 F.2d 1567 (11th cir. 1986)

8, 15

US v. Ziegler Bolt & Parts Co..

Ill F.3d 878, 882 (Fed.Cir.1997)

Williams v. Board of Regents of University

System of Georgia..

477 F.3d 1282, 1292 (11th Cir. 2007)

Yeldell v. Tutt..

913 F.2d 533, 539 (8th Cir. 1990)

Constitution and Statutary

The U.S. Constitution

14th Amendment -Equal Protection

14th Amendment -Due Process

Federal Statute42 U.S.C 1985(2)

Passism

42 U.S.C 1985(3)

Passism

18 U.S.C 876, &3512

Passism

State StatuteRWC49.60.180

Rules and Regulations

Federal:

Fed.R.Cv.P 7

Fed.R.Cv.P 8

Vii

Fed.R.Cv.P 15

Fed.R.Cv.P 12(b)6

Washington State Court Rules:

CR4(h)

CR 12(a)

CR 12(b)

CR12(b)5

Passism

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully seeks a writ of certiorari to

review the order to dismiss Mandawala’s state racial civil

rights complaint Affirmed by Washington State Court of

Appeals and denial of the Petition for Review by

Washington State Supreme Court.

OPINIONS BELOW

The opinions below is unpublished one. The opinions

respecting Symon Mandawala v. Era Living Lie,

80543-6(Wash. Ct.App 2020)

JURISDICTION

The Washington State Court of Appeals entered the

Affirming dismissal on November 2, 2020 and Washington

State Suprem Court denied a Petition for Review on

March 2, 2021 In which 42 U.S.C 2000e was claimed to be

violated and the state appropriet agencey gave the right to

sue notice. The Court has jurisdiction under 28 U.S.C.

§1254(1) and or providing binding instructions §1254(2).

STATEMENT

Petitioner, Symo Mandawala, was an

employee of the defendant ERA LIVING AT

ALJOYA from October 29, 2012, until May 3, 2016.

Symon's conduct was good during his tenure of

employment until his constructive discharge. Even

as diligent and hard-working as he was, his work

became dangerous to his safety and unattainable.

Mandawala is a former employee of the responding

corporation Era Living LLC. This case arose from

incidents that happened when Mandawala was

working at one of the Era Living business facilities,

namely Aljoya Thornton Place near Northgate Mall,

Seattle, Washington State. Era Living LLC hired

Mandawala on October 10, 2012, and his job was

wrongfully terminated on May 3, 2016, that he

received

unemployment

benefits

from

the

Department of Unemployment in Washington State.

The discrimination events in Mandawala’s

complaint were ongoing and per the statute of

limitation. The first incident happened on February

8, 2016, where his coworkers subjected him to

segregated work conduct and racially employment

promotions of white employees. The second event

happened around March 11, 2016, whereby

Mandawala was looking for urgent medical

attention. The Manager at the time, Mr. Dennis

Newman Jr, refused to allow Mandawala to get

medical attention. However, the same Manager

allowed white coworkers of Mandawala, namely

Wendy, white and female, the other one Tony white

male, to take the day off for a cold. This was the same

morning when those two white coworkers,

Mandawala, were allowed to have a day off while

Mandawala was denied urgent and immediate

dental care. Another event happened around April

22, 2016; this time, the same Manager who denied

Mandawala medical attention decided to give a task

to clean the Exhausting kitchen system. Mandawala

has never been tasked before. Era Living has been

hiring the third-party licensed and professionals

Exhaust Air System cleaner per Seattle city

commercial building and safety code 2015, section

609.1-4. It was the first time for Mandawala to do

such higher voltage electric system cleaning work,

and he was severely injured that he is still struggling

with the effect of the injury.

Before Mandawala’s injury, two separate former

Era Living employees unlicenced, not professions,

were already severely injured for just simply trying

to wipe out grease from the equipment. One was a

former Executive Kitchen Manager (Jace Brettner)

who was replaced by Mr. Newman Jr., who had a

high voltage shock in his head while trying to wipe

out oil licking from the system's light. Mr. Brettner

and Mr. Newman Jr. Worked together before and

were even friends outside work, and Mr. Newman

was known and told about how severely Mr. Brettner

was injured. The second injury was a dishwasher

(Mr. Charly White) who voluntarily tried to clean the

same Exhusting system, and he fell and injured his

back. As noted, these injuries were before

Mandawala’s injury. It is undisputed that Era Living

LLC had knowledge of the equipment causing

injuries and ignored that knowledge to order

Mandawala to clean the system that ended up

causing him injured. The Washington laws prohibit

deliberately caused injuries of employees and are

actionable under (RCW 51.24.020).

After two years of medical treatment from the

hip injury sustained while working at Era living,

Mandawala filed a lawsuit in Washington State

Superior Court in Seattle on February 4, 2019. Since

his injury, Mandawala lives in Texas, where his

relatives were nursing his injury and worked there.

Mandawala first attempted to serve Era Living

through Friend as an in-person service of

process(Mr. Lobole). His friend was frustrated after

Mr. Lobole was told to wait for someone to pick the

court papers at the front desk of Era hving home

office. The process server left the paper at the front

desk of Era Living office downstairs, and other court

paper copies were sent through regular mail to

support in-person service under Washington state

court rule 4(d)4,4(e.).

The unavailability of Mr. Lobole’s declaration on

his in-person service was due to his relocation to east

Africa for Jehovah's witness churches to rebuild its

damage by wind disaster, Mandawala reserved the

Era Living again, this time by Certified Mail return

receipt requested. The March 25, 2019 return

receipt, in which the envelope was shown to Trial

Court, arrived as the date on the return receipt and

was signed by Era Living as an affidavit to support

their motion to dismiss. On April 10, 2019,

Era-Living made an appearance to the court.

While the case was pending on April 22, 2019,

without filing advisory to the court, Era Living seeks

Mandawala to reserve the process because the

Mailed envelope did not designate Era Living's

internal Principal officer to receive the court papers.

The Era Living's counsel, directly without the Trial

Court’s consent, told Mandawala that the service he

made should be approved in Washington State. If he

does not re-service within ten days (which is May 2),

Era Living intends to file a motion to dismiss, (see

Appendix D). Take a note at this time the responding

or raising a defense of insufficient service of process

time of 20 days under Washington state court

already passed with nine days.

While the case was pending on April 22, 2019,

without filing advisory to the court, Era Living seeks

Mandawala to reserve the process because the

Mailed envelope did not designate Era Living's

intenal Principal officer recieve the court papers. The

Era Living's counsel directly without the Trial

Court’s consent told Mandawala that the service he

made should be approved in Washington State. If he

does not re-service within ten days (which is May 2),

Era Living intends to file a motion to dismiss, (see

Appendix D). Take a note at this time the responding

or raising a defense of insufficient service of process

time of 20 days under Washington state court rule

12(a) already past with nine days.

Without an attorney-client relationship or

court-appointed counsel approved, this legal advice

was

attorney client-relationship

between

Mandawala and Era Living counsel. Neither

Mandawala seeks Era living counsel any pro-bono

legal help. Mandawala was a party having opposite

interests in what Counsel for Era Living is for in the

case. Much more, whatever Era Living counsel

brings on litigation, is in their client's best interest,

Era Living, not Mandawala. Still, both Appeals

Court and Trial Court did not see how inappropriate

(see Appendix E at 28) it is to provide legal advice to

the opposite party or intimidate Plaintiff as Exhibit

F was shown. The trial court went even on record to

praise Era Living's counsel that she volunteered to

advise Mandawala(see Appendix E at 28). the trial

court views this as Legal Samaritan(pro-bono

information) see Attached Affidavit.

After 124 days, and April 10, 2019 Era Living

return receipt, then April 22, 2019, without court

advisory or consent to provide legal advice to the

opponent of their client, on July 26, 2019, Era living

filed(see Appendix D) a motion to dismiss for

insufficient of service of process, it was 110 days

from the date Era Living made an appearence in

court.

The court was notified about deficiency in service

of process on August 23, 2019 at the hearing more

that 130 day by Era Living for the first time, and

denied requeat by Mandawala to exercise its

discretion as stated in Washington State Superior

Court Rule 4(h) and the case was dismissed.

Mandawala timely filed a notice of appeal to the

Washington State Court of Appeals in division 1 and

the court affirmed the Trial Court dismissed the case

Appedix A. The Washington State court of Appeals

further raised a conflict view that the service of

process is strictly and cannot be amended

contradicting to their own Washington State Court

Rule(h) Appidix A provides that the court can order

any process of service to be amended.

The out of court interaction by Era Living direct

to Mandawala is federally prohibited and can be

sued as conspirancy to intimidate civil rights

litigant. Considering that this court said section

1985 congress intended to protect the caurse of civil

rights justice when added “equal protection” to the

statute not a federal law tort. Griffin v.

Breckenridge, 403 U.S. 88. 102 (1971) the state

court is bounded by the statute to provide

enforcement and protection to civil rights litigants.

See Howlett v. Rose. 496 U.S. 356 (1990) Id. At

361~383 Despite a lawsuit jurisdiction made it

absolutly to be in hands of federal district court, see

28 U.S.C § 1343

Thus, when Mandawala raised the federal

question to Washington state Court of Appeal

through reply to response brief and in details again

to the Washington State Supreme Court as issue of

Petition for Review and the Washington State

Supreme court Denied to Review Mandawala’s

timely petition.

It is why this court as the highest court in this

land is requested to clarify and review the

disregarded federal issues by all Washington State

court. This court opinion will set appropriet direction

regarding the state courts that are setting new rules

to coporations that are violating the United States

Consitution rights of the citizens.

REASONS FOR GRANTING THE WRIT

This is as straight forward a certiorari candidate as

any civil rights case that has significance to the U.S

constitution can be. It is manifestly important: A host of

Federal appellate judges, civil rights scholars, and legal

practitioners, upon seen the opinion, have stressed that

the result below is untenable - invalidating previously

irreproachable due causes of civil rights proceedings and

precipitating what State Judge Loura Inven (retired) and

State Appallet Judge Dwyer called “a new crisis of civil

rights law and integrity of judicial proceedings.”

Corporations will not abide by the court rules, and the

court is powerless but accepting anything from corporate

as lawful, even intimidating pro-se or harassing them.

This is an indirect fall of the law, especially federal law,

in-state judges' hands.

WASHINGTON STATE COURTS ERRONEOUSLY VIEWS OUT OF

COURT INTIMIDATION OF CIVIL RIGHTS PRO-SE PLAINTIFFS AS

COURTEOUS LEGAL HELP TO PLAINTIFFS, DANGEROUSLY

UNDERMINE THE PURPOSE (PROTECTION) AND THE SPIRIT OF 42

U.S.C 1985(2) AND 18 U.S.C 3521

Both Washington state court of appeals and

Trial court incorrectly viewed the Era Living

counsel's letter demand of re-service of process

exhibit E direct to Mandawala without seeking the

court order as a courteous or help to Mandawala.

See (Appedix A and E at 28). Such undermines the

purpose and spirit of the federal statute 42 U.S.C

1985 (2) last clause. That prohibits any conspiracy

to impede in any manner whether it was courteous

or not as long as the result of such conspiracy

defeated the normal cause of justice is a violation of

section 1985(2). Although the jurisdiction of a

lawsuit under section 1985(2) is in the federal

district court's hands, the application of prohibition

or protection is for both state and federal courts.

Pursuing to the US Supreme Court precedent in

Howllet v. Rose (2000)Id said that if the State has

similar law as the federal one, the State Court

should exercise the protection as it could be in

Federal court. See Howlett v. Rose, 496 U.S. 356

(1990) Id. At 361-383 (the court applied the U.S

Constitution Article VI, clause 2). Mandawala’s

complaint, in this case, alleged that he was subject

to racial and other federally and Washington

state's indifferent work conditions compared to

white coworkers. Mandawala claimed Federal Act

of civil rights Title VII and RCW 49.60.180 (3) in

his state complaint.

Mandawala state complaint pleaded that his

former manager subjected him to indifferent racial

working conditions. When the manager allowed the

white female coworker named Wendy to seek

medical attention but refused to allow Mandawala

at the same time, who was in severe pain the same

time, to seek urgent dental attention the same day.

See Mandawala v. Era Living complaint.

The Federal statute 42 U.S.C. 1985(2) last

clause requires “racial” or “class-based animus” as

the same as it likes to sister statute 42 U.S.C.

1985(3) pursuing to U.S. supreme court in Griffin

Id at 88, 102 (1971) because of wording equal

protection.Grinffin court Id at 88-100, said it does

not also require a plaintiff to file a (section

1985(2))(original 1985(3) statute substituted)

lawsuit. Specifically for section 1985, the court

should protect the statute as its purpose is to

protect civil rights litigants rather than federal tort

law.

Era Living and their attorney directly

contacted Mandawala without a court order, and

who is racially grieved plaintiff, and demanded

re-service of the process with the threat of

untimely motion to dismiss if Mandawala would

not comply with the demand. Both attorney and

their client (Era Living) conspired to harass or

threaten or deter (Exhibit D ) to impede the course

of justice in the Superior Court. See 42 U.S.C

1985(2)..

Much more, at the time Era Living and -their

counsel threatened to dismiss Mandawala's

complaint, the time for filing such motion was past

due with 9 days. The undeniable truth is that to

file an Advisory to the court does not extend the

time for responding of 20 days presenting the

defense under Washington state court civil rules

12(a).

Federally, it is prohibited for the defendant’s attorney

to make such contact with the plaintiff, and it is considered

intimidation and harassment that violates federal criminal

code 18 U.S.C §876 and §3521. see US v. Tison H. Claude ir.,

Marcelino Echevarria and Scan realty Service, inc.. 780

F.2d 1567 (11th cir. 1986)

Era Living intend to say their attorney’s action is part

of one party action, (intracorporation doctrine) to deny

attorney-client conspiracy to intimidate Mandawala

because the conduct is classified as criminal federally, and

its a felony or misdemeanor in many states to intimidation

or harassment court witness or litigant. See federal circut

court exempting conduct classified as criminal conspiracy

as a defense (intra-corporation).

First, Fifth, Six, Eighth and Nineth Eleventh Circuits

Federal Courts hold that any criminal or fraud conspiracy

whether raised by a prosecutor or an individual in section

1985 claim intracorporation doctrine defense is exempted or

does not apply McAndrews v. JA Blackwell Jr.. T.A.

Graham, et al.,177 F.3d 1310 (11th Cir. 1999) see 1st Circuit

in US v, Peters 732 F.2d 1004. 1007-08 (1st Cir, 1984). 5^

Circut in Dussouy v. Gulf Coast investment Corn,.660 F.2d

594, 603 (5th Cir. 1981) 6th circuit in US v. Ames Sintering

Co.. 927 F.2d 232. 236 (6th Cir. 1990) (quoting that “ ‘in the

criminal context a corporation may be convicted of

conspiracy with its offers’”) regardless who brought the

claim of that criminal conduct. See(US v. S Vee Cartage Co..

704 F.2d 914. 920 (6th Cir 1983) 8th circuit in US v. Hugh ,

Chalmers Chevrolet-Tovota. inc 800 F.2d 737. 738 (8th Cir.

1986) and 9th Circuit in US v. Hughes Aircraft Co., 20 F.3d

974. 978-79 (9th Cir. 1994)

Therefore, both the Trial court and the Appeals

Court harmonizing exhibit F the Harassment and

intimidation Mandawala is federally a criminal

conduct. It is an erroneous view that undermines

the purpose 42 U.S.C 1985(2) as it protects any

racial or class-based animus litigant in state

courts. (See especially the U.S 5th Circuit court in

Dussouy case where attorney conspired with their

corporation client) Moreover, since Mandawala

made an Advisory to the court about Era Living’s

attorneys out-of-court threat without court’s

advisory notification to do so. The trial court's view

on Appendix E at 28 undermined the purpose and

spirit of section 1982(2), which is to “protect civil

rights litigants and witness” seeking civil right

justice in state court like what Mandawala did.

Era Living demands were not really in good

faith considering the 124 days of filing Appendix D

insufficient service of process defense instead of 20

days as the trial court reasoning on Appedix E page

28 and the Appeals court held it as appropriate an

error of judicial view. It is why this court should

clarify if attorney-client conspiracy can be the

factor for the attorney to act contrary to the state

law for intracorporation activities defense or

attorney-client relationship defense. Considering

the section 1985(2) conspire for the purpose of

impeding, obstructing, hindering the course of

justice as all are criminally classified under 18

U.S.C. 3521. The state lower court decisions

allowing the corporate defendants to intimidate the

plaintiff in the name of courteous or free legal help

is not the purpose of the Equal Protection clause in

the 14th Amendment. Then there is no protection

for plaintiffs of civil rights cases in Washington

State courts as other state courts do provide it

without having jurisdiction. That will open the

door to undermine the similar state law RCW 49.60

and make it a worthless statute if its sister statute

of federal 42 U.S.C. 2000 will not be considered

wisely.

WASHINGTON STATE COURTS' VIEW OF THE COURT HAS THE

DISCRETION TO DENY PLAINTIFF A RIGHT TO AMEND THE

COMPLAINT, OR PROCESS EVEN WHEN THE DEFENDANTS DO

NOT FILE AN ANSWER. IT IS CONTRADICTING ALMOST ALL

FEDERAL CIRCUIT COURT RULINGS ON THE SIMILAR MATTER

AND TO THEIR OWN WASHINGTON STATE SUPERIOR RULE 4 (h).

When this issue comes up to the US Eleventh

circuit court of appeals after the US district court

judge dismisses the lawsuit for reasons that

Insufficient services of process, the US 11th

appeal court looked at the service of process and

pleadings. See Williams v. Board of Regents of

University System of Georgia. 477 F.3d 1282.

1292 (11th Cir. 2007) The US 11th circuit held

that when a plaintiff file a complaint in district

(trial) court with pleading in it, those pleadings

need the defendant's responsive pleadings for the

court to balance the case facts' merit.

The US 11th circuit court found when the

defendant does not file a responsive pleading that

challenges the complaint's pleadings, The district

court lacks the

discretion to

deny any

amendment of the complaint. Because whatever

plaintiff amended is what the defendant will

respond to and denying the plaintiff such

amendment is an abuse of court discretion as it

looks, the court has judged the plaintiff without

the defendant's side of the story. “When the

plaintiff has the right (before responsive pleading

filed) to file an amended complaint as a matter of

course, the court lacks the discretion to reject the

amendment. See Thornes v. Home Penot USA

Inc. No. C06-027Q5 (N.D. Cal. Jul. 25. 2007)

(emphasis added) quoting See. Williams. 477

F.3d 1282. 1292 at n,6Jd

In Mandawala's case, the trial judge

acknowledged that there were defects; the trial

judge raised the question if the court has the

discretion to allow Mandawala to amend the

process, (see Appendix E ) The same amendment

process Era Living attorney was demanding

Mandawala without a court order. (See Appendix

By applying the US 11th circuit court

opinion, the trial court lacks the discretion to

deny the plaintiff of any amendment when the

defendant does not file responsive pleading

(Answer). It makes that Judge Iveen did luck

discretion to deny Mandawala anamendment

because Era living did not file responsive

pleading (answer). Instead, the court had the

Wash.St.Sup.Court.Rulel2(b)5 motion to dismiss

filed by Era Living based on insufficient of service

of process. Motion to dismiss is not a responsive

pleading as defined in Wash.St.Sup.Court.Rule7,

similar to Fed.R.Cv.P 7.

The Majority of the federal courts have held

that (“Motion to dismiss is not a responsive

pleading”) Me Gruder v. Phelp, 608 F.2d 1023. 1025 (5th

Cir. 1979). (Motion to dismiss not responsive

pleading for the purpose of Fed.R.Civ.P 15);

Hanratv v. Ostertag. 470 F.2d 1096. 1097(l0th

Cir. 1972) Miller v. American Exnort Lines, inc..

313 F.2d 218 n.l(2d Cir. 1963) (Motio for

Summary judgment not responsive pleading for

purpose of Fed.R.Civ.P 8).

This is also the views of Federal Circuit

Court of their territory the 9th federal circuit

court. A Motion to Dismiss the complaint is not a

responsive pleading. Allen v. Veterans Admin

749 F.2d 1386. 1388 (9th Cir 1984) and (Rule

12(b)6 motion to dismiss not a responsive

pleading) see Mayes v. Leinziger, 729 F.2d 605.

607 (9th Cir 1984)

The Federal Appeals court of the 9th circuit

in Allen’s case concluded that even the district

court dismiss the case still the plaintiff had the

right to amend. This is exactly with Mandawala’s

case, where the trial court did not allow

Mandawala a single amendment despite no

answer from Era Living up to day. Makes it

ununiform judicial system.

Considering that if the defendant doesn’t file

a responsive pleading, a plaintiff as a matter of

right has one chance to amend either the process

or the complaint. The question could have been

gone to Era Living to demonstrate if any legal

injury could have occurred to them if Mandawala

did amend the process, in which the answer is

NOT at ALL since there is no answer per

Wash.St.Sup.Court.R 4(h) last clause.

*It does not require a university professor of

language to differentiate the language in rule 4h

of "Process" and "the documents used to that

process." Moreover, the word "any process"

*Wash. Sup.C.R4(h) Amendment of Process; "At any time

in its discretion and upon such terms as it deems just, the

court may allow any process or proof of service thereof to be

amended, unless it clearly appears that material prejudice

would result to the substantial rights of the party against

whom the process issued."

cannot change to one process of amending

summon only as Affidavit A says.The word "any"

means "whatever, more than one, other processes

." that means "whatever process"

the court has the discretion to order an

amendment."unless it clearly appears that

material prejudice would result to the substantial

right of the party against whom the process

issued." see Wash.St.Sup.Court.R4h last clause.

Appeals court saying in Appendix B at 9 and

10 says the "writ" means "summon" only. But

"writ" in that meaning is all court's orders

including

Subpenors,

writ

of Prohibition,

extraordinary writ, writ of mandamus, order to

show the cause, and summons.

The issue here is simply no need to go round

the cage of truth; if the defendant does not file an

answer, the court has no power to deny an

amendment.

Much

Appendix

demonstrate that mandawala was asking the

court to amend under Wash.St.Sup.Court.R4(h)

not what court of appeals referred to in Exhibit A

of Wash.St.Sup.Court.R15(a) even a summon can

be amended as long as the respondent does not

officially respond to the original one.

The Washington state appeals court should

not encroach the words of the rule to favor Era

Living for being a corporation as such means

judicial bias and setting the Washington state

court rules as previlage to corporation and not

other litigats.

THE WASHINGTON STATE COURT RULES ARE PRIVILEGE,

EXEMPTING, OR NOT APPLY TO SOME CORPORATE

DEFENDANTS SUCH AS ERA LIVING LLC, AND ALLOWED

UNTIMELY OF FILING MOTION TO DISMISS DESPITE

WASHINGTON STATE COURT SUPERIOR COURT RULE 12 HAS A

20 DAY TIME LIMIT?(ALLOWING WAIT THEN AMBUSH)

•*>

The issue here is a narrow one because a

lawsuit does not commence if a plaintiff served an

improper defendant. This is a different situation

to services of a process that is insufficient in

documents to the proper defendant. In a case

where the improper defendant has been served

the time of raising insufficient of service tolled

until the day such service has arrived at the

proper

defendant,

that

when

the

**Wash.St.Sup.Court.R12(a) time starts running

out on that proper defendant. Here, in this case,

the proper defendant (Era Living LLC) was

served a complaint that was filed in superior

court immediately acknowledged that there was a

defense of shortage of documents (insufficient of

service of process) but allowing the timeline of

raising this defense of insufficient of the service

process of 20 days

(see Washington state's

Superior Court Rulel2(a))to run out up top 124

**Wash.Sup.C.R.12 DEFENSES AND OBJECTIONS (a) When

Presented. A defendant shall serve an answer within the following

periods' (l) Within 20 days, exclusive of the day of service, after the

service of the summons and complaint upon the defendant pursuant to

rule 4;

***Wash.Sup.C.R. 12(b) How Presented... Every defense, in law or

fact, to a claim for relief in any pleading, whether a claim, counterclaim,

cross claim, or third party claim, shall be asserted in the responsive

pleading thereto if one is required, except that the following defenses

may at the option of the pleader be made by motion: (l) lack of

jurisdiction over the subject matter, (2) lack of jurisdiction over the

person, (3) improper venue, (4) insufficiency of process, (5) insufficiency

of service of process, (6) failure to state a claim upon which relief can be

granted,

days ,and then claiming the same way as an

improper defendant? (see Exhibit C & F ) see

Sinwell v. Shapp. 536 F.2d 15 (3d Cir

.1976) (improper for

the court

dismiss

[complaint] waived by lack of timely assertion)

A proper defendant makes an appearance to

the court does not constitute a waiver of the

defense of insufficient service of process. But

proper defendant untimely or unseasonably filling

insufficient service of process defense (without a

cause) after making such appearance constitute

waived a defense of insufficient service of process.

See Santos v. State Farm Fire and Cas. Co. 902

F.2d 1092 (2d Cir. 1990) if raised such defense of

insufficient services of process untimely or

unseasonably or with conducts contrary to related

claimed or defense by the defendant clearly satisfy

the waiver of such defense.

If any proper defendant is served and waits

whatever period they would like to raise the

defense of insufficient service as the same as an

improper defendant or no service at all party does,

it will be proper for the Washington state supreme

court to remove the insufficient of service from

Wash. Sup.CRl2(b). Because of Wash.Sup.CR12(b)

defenses

governed

the

timeline

Wash.Sup.CR12(a).

In Federal circuit courts handling the defense

of insufficient of service of process, they held that

“defendants must not only comply with the letter of

the rule only, but also “with spirit of the rule,

which is ‘to expedite and simplify proceedings in

the ***court.” id (quoting 5A Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure §

1342 (2d ed. 1990)) see also US v. Ziegler Bolt &

Parts Co.. Ill F.3d 878. 882 (Fed.Cir.1997)

(holding that a defendant’s literal compliance with

the procedural rule does not end the waiver

analysis)

The 8th Federal Circuit Court went further

with a very clear about dangling around with time

and conducts of the defendants who claims defense

of insufficient of service or personal jurisdiction.

“Failure to assert it seasonably, by formal

submission in a cause, or by submission through

conduct.” See Yeldell v, Tutt, 913 F.2d 533. 539 (8th

Cir.

1990)