Petition for Writ of Certiorari — Kevin Scott Bjornson, Petitioner v. Equifax Information Services, LLC

TABLE OF APPENDICES

Page

APPENDIX A- OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED OCTOBER 23, 2024.................. la

APPENDIX B- FINAL JUDGEMENT OF THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON AT

TACOMA, FILED MAY 25, 2023............................ 4a

APPENDIX C- ORDER DENYING PETITION FOR

REHEARING OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT, FILED

DECEMBER 30, 2024............................................. 12a

APPENDIX D EXHIBIT K AFFIDAVIT OF SCOTT

SEMANS DENIAL OF CREDIT TO PETITIONER,

FILED FEBRUARY 24, 2023.................................. 13a

APPENDIX E- DEFENDANT-APPELLEE EQUIFAX

INFORMATION SERVICES LLC’S CORRECTED

EXCERPTS OF RECORD INDEX— VOLUME 1 of 1,

FILED OCTOBER 18, 2023.....................................17a

APPENDIX F- PETITIONERS PETITION FOR

PANEL REHEARING, FILED NOVEMBER 23,

2024.......................................................................... 20a

APPENDIX A- OPINION OF THE UNITED STATES

COURT OF APPEALS FOR

THE NINTH CIRCUIT, FILED OCTOBER 23, 2024

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 23-35421 D.C.

No. 3:23-cv-05128-BHS

Western District of Washington, Tacoma

ORDER

KEVIN SCOTT BJORNSON,

Plaintiff-Appellant, versus

EQUIFAX INFORMATION SERVICES, LLC,

Defendant-Appellee. MEMORANDUM*

Appeal from the United States District Court for the

Western District of Washington Benjamin H. Settle,

District Judge, Presiding

Submitted October 16, 2024**

Before: SILVERMAN, R. NELSON, and MILLER,

Circuit Judges.

Kevin Scott Bjornson appeals pro se from the district

court’s judgment dismissing his action alleging

defamation and a violation of the Fair Credit

Reporting Act FCRA. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a dismissal on the

basis of the applicable statute of limitations and This

la

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). under Federal Rule of Civil

Procedure 12(b)(6). Cholla Ready Mix, Inc. v. Civish,

382 F.3d 969, 973 (9th Cir. 2004). We affirm.

The district court properly dismissed Bjornson’s

action as time- barred because Bjornson failed to file

the action within the applicable statutes of

limitations. See 15 U.S.C. § 1681p stating that FCRA

action must be filed within two years after plaintiff

discovers the violation or five years after the violation

occurs, whichever is earlier); Wash. Rev. Code §

4.16.100(1) setting forth two-year statute of

limitations for defamation actions under Washington

law; Drew v. Equifax Info. Servs., LLC, 690 F.3d

1100, 1109'10 (9th Cir. 2012) explaining that

constructive discovery triggers the FCRA’s twoyear limitations period); Herron v. KING Broad. Co.,

146 P.2d 295, 300 (Wash. 1987) (adopting the “single

publication rule” for defamation actions and rejecting

the view that “each pubheation of a defamatory

utterance” constitutes a separate cause of action).

The district court did not abuse its discretion in

denying Bjornson leave to amend because

amendment would be futile. See Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1041

(9th Cir. 2011) (setting forth standard of review and

explaining that dismissal without leave to amend is

2a

proper if amendment would be futile).

The district court did not abuse its discretion in

denying Bjornson’s motions to strike Equifax and its

counsel’s various filings, to disqualify Equifax’s

counsel, The district court did not abuse its discretion

in denying Bjornson’s motions to strike Equifax and

its counsel’s various filings, to disqualify Equifax’s

counsel, and to sanction Equifax and its counsel. See

S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807 (9th

Cir. 2002) explaining that district courts have

inherent power to control their dockets” and this

court will reverse a district court’s litigation

management decisions only ifit abused its discretion

(citation and internal quotation marks omitted)).

Bjornson’s motion to strike the answering brief and

excerpts of record, set forth in the reply brief and at

Docket Entry No. 17, is denied. Bjornson’s motion to

sanction Equifax, set forth in the reply brief, is

denied. Equifax’s request for judicial notice of the

docket in Bjornson’s prior action, set forth in the

answering brief, is granted AFFIRMED.

3a

APPENDIX B ■ FINAL JUDGEMENT OF THE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON AT

TACOMA, FILED MAY 25, 2023

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF WASHINGTON AT TACOMA

KEVIN SCOTT BJORNSON,

Plaintiff, v.

EQUIFAX INFORMATION SERVICES LLC,

Defendant.

CASE NO. 3:23-cv-05128-BHS

ORDER

This matter comes before the Court on Defendant

Equifax Information Services LLC’s Motion to

Dismiss Plaintiff Kevin Scott Bjornson’s Complaint

for failure to state a claim, Dkt. 11 Equifax argues

that both of Bjornson’s claims against it, defamation

and violation of the Fair Credit Reporting Act

(“FCRA”), were filed past the applicable limitation’s

periods. The Court agrees with Equifax and therefore

grants Equifax’s motion and dismisses Bjornson’s

complaint with prejudice.

I.

BACKGROUND

Bjornson sued Equifax in February 2023 alleging

defamation and violations of the FCRA. Dkt. 1.

Bjornson alleges Equifax defamed him in an answer,

4a

>

filed October 20, 2020, in a previous lawsuit he filed

against Equifax, Bjornson v. Equifax, 20-cw5449

RJB (W.D. Wash.). See generally Dkt. 1. He further

alleges that Equifax violated the FCRA, which

appears to be the same claim he asserted in his

previous suit. Id.

Equifax argues that both of Bjornson’s claims are

subject to a two-year limitations period and are

therefore time-barred. Dkt. 11 at 3 (citing RCW

4.16.100(1)); Dkt.ll at 5 (citing 15 U.S.C. § 1681p).

Bjornson argues that his claims did not accrue until

his friend, Scott Semans, reviewed Bjornson’s

previous case against Equifax when considering

whether to help him finance the purchase of a home.

See generally Dkt. 13; see also Dkt.l at 38.

Bjornson also moves the Court to strike Equifax’s

counsel’s Notice of Appearance and disqualify its

counsel, to strike Equifax’s Motion to Dismiss, and to

sanction Equifax and its counsel. Dkt. 13. Bjornson

additionally moves the Court to strike Equifax’s

reply, Dkt.14, as untimely. Dkt.17-1.

Each motion is addressed below.

II. DISCUSSION

A.

Equifax’s Motion to Dismiss is Granted.

Dismissal under Federal Rule of Civil Procedure

12(b)(6) may be based on either the lack of a

cognizable legal theory or the absence of sufficient

facts alleged under a cognizable legal theory.

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

(9th Cir.1988). A plaintiffs complaint must allege

5a

facts to state a claim for relief that is plausible on its

face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A claim has “facial plausibility” when the party

seeking relief “pleads factual content that allows

the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.

Although the Court must accept as true the

complaint’s well-pled facts, conclusory allegations

of law and unwarranted inferences will not defeat

an otherwise proper Rule 12(b)(6) motion to

dismiss. Vazquez v. Los Angeles Cnty., 487 F.3d

1246, 1249 (9th Cir.2007); Sprewell v. Golden

State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

“[A] plaintiffs obligation to provide the ‘grounds’ of

his ‘entitle [ment] to relief requires more than

labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.

Factual allegations must be enough to raise a right

to relief above the speculative level.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations and footnotes omitted).

This requires a plaintiff to plead “more than an

unadorned, the defendant unlawfullyharmed-me

accusation.” Iqbal, 556 U.S. at 678 (citing

Twombly,550 U.S. at 555). Equifax argues that

Bjornson’s defamation claim accrued on October 20,

2020, when it filed its Answer in the previous

lawsuit, and is therefore barred by the two-year

limitations period enumerated in RCW 4.16.100(1).

Dkt. 11 at 3-4.

Bjornson does not dispute the applicability of RCW

6a

4.16.100(1), but he argues that Equifax’s answer was

not “published” in 2020 because it was not on “public

display” and was not accessed by anyone until July

2022. Dkt. 13 at 8-16. He argues the availability of

the document through PACER does not qualify as

publication because a member of the public would

have to apply for and pay to access the document and

that no one did so until July 2022. Id

In Washington, courts apply the “single publication

rule” for defamation claims. Momah v. Bharti, 144

Wn. App. 731, 752 (2008). Under that rule, “any one

edition of a book or newspaper, or any one radio or

television broadcast, is a single publication.” Id.

(internal quotation omitted). The rule applies to

publication on websites. Habib v. Matson Navigation

Co., Inc., 4 Wn. App. 2d 1019, 2018 WL 3026090,

at *4 (2018) (unreported case). “Statements are

generally considered to be ‘published’ for purposes of

the rule when they are first made available to the

public.” Id. A “separate and distinct communication”

can give rise to a new cause of action, “but it is

irrelevant whether the same person or a new person

received the communication.” Id.

The question is therefore whether Equifax’s

filing of the complaint on PACER can be considered

“publication.” Bjornson argues that posting a

document to PACER cannot qualify as “publication”

because an individual must request access and pay a

fee to view the document. Dkt. 13 at 10. Equifax

argues that “[a] court filing is a pub he document,

available to all, and, therefore, ‘is a form of aggregate

communication in that it is intended for a broad,

public audience.’” Dkt. 11 at 4 (quoting Oja v. U.S.

7a

Army Corps of Engineers, 440 F.3d 1122, 1131 (9th

Cir. 2006)) (internal quotation omitted).

Regardless of whether payment was required to

access Equifax’s answer, the answer was “published”

when Equifax filed it. Court documents are public.

See, e.g., O’Brien v. Tribune Pub. Co., 7 Wn. App. 107,

117 (1972) (“[T]he filing of a pleading is a public and

official act in the course of judicial proceedings.”);

Falls v. Vernal, 2021 WL 5264252, at *2 (C.D. Cal.

May 6, 2021) (“The Court’s files are publicly available

for copying through the Clerk’s office or for printing

through the electronic docketing service CM/ECF

and PACER, both of which are available on the

internet and can be found on the Court’s website[.]”).

Any allegedly defamatory statements Equifax made

in its answer were published on October 20, 2020,

and Bjornson’s defamation claim accrued on that

date. It does not matter that the relevant individual

did not access the document until 2022, only when

the actual publication occurred. The limitations

period therefore expired in October 2022, four

months before Bjornson filed this lawsuit. His

defamation claim is time- barred, Equifax’s motion to

dismiss that claim is GRANTED, and Bjornson’s

defamation claim is DISMISSED with prejudice.

Equifax argues that Bjornson’s FCRA claim is also

time-barred because it is based on alleged violation

of the FCRA that occurred prior to him filing his

complaint in the 2020 case. Dkt. 11 at 5. Bjornson

argues that his FCRA claim did not accrue until 2022

because (1) he did not have a copy of the relevant

report in 2020, and (2) “[t]he alleged report had not

been published to a third party as defined by FCRA

8a

1681p(l).” Dkt. 13 at 16. He argues the publishing

requirement was not satisfied until 2022 when

Semans accessed the report. Id.

An FCRA claim may be brought by the earlier of “(1)

2 years after the date of discovery by the plaintiff of

the violation that is the basis for such liability; or (2)

5 years after the date on which the violation that is

the basis for such liability occurs.” 15 U.S.C.§ 1681p.

Equifax argues that Bjornson knew about the alleged

violation at the time he filed his complaint in the

2020 case, evidenced by the fact that he cites to his

own complaint for support of that claim in this case.

Dkt. 11 at 5.

The Court again agrees with Equifax that Bjornson’s

FCRA claim is time-barred. Regardless of when

Semans accessed the credit report, Bjornson knew

about the report and the allegedly false information

at the time he filed his complaint in the prior action

in 2020. See Dkt. 1 at 46 (citing his 2020 complaint

in support of his claim that Equifax admitted to

reporting false and inaccurate information on his

consumer credit report). Equifax’s motion to dismiss

Bjornson’s FCRA claim is GRANTED, and that claim

is DISMISSED with prejudice.

On a 12(b)(6) motion, “a district court should grant

leave to amend even if no request to amend the

pleading was made, unless it determines that the

pleading could not possibly be cured by the allegation

of other facts.” Cook, Perkiss & Liehe v. N. Cal.

Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990).

However, where the facts are not in dispute, and the

sole issue is whether there is liability as a matter of

substantive law, the court may deny leave to amend.

9a

Albrecht v. Lund, 845 F.2d 193, 195-96 (9th Cir.

1988).

Because Bjornson’s claims are time-barred, his

pleadings could not be cured by the allegation of other

facts. Therefore, the Court will not grant him leave to

amend.

B.

Bjornson’s Motions are Denied.

Bjornson’s motions are without merit, aside from his

motion to strike Equifax’s reply. Equifax’s reply was,

in fact, late without explanation. Nevertheless, the

reply advances no argument, and the Court did

not consider it in any of its rulings.

Bjornson’s motion to strike Equifax’s reply, Dkt. 171, is therefore DENIED as moot.

Bjornson’s motion to strike Equifax’s motion to

dismiss is also DENIED. He provides no reason why

Equifax’s motion was improper. The motion was

proper, timely, and meritorious. Bjornson’s motions

to strike Equifax’s counsel’s Notice of Appearance, to

disqualify Equifax’s counsel, and to sanction both

Equifax and its counsel are all DENIED. Bjornson’s

allegations against Equifax’s counsel are largely

unclear, although he appears to assert that the

representation amounts to a conflict of interest

because the same counsel represented Equifax in

the parties’ previous litigation. This clearly does not

amount to a conflict of interest.

ORDER

Therefore, it is hereby ORDERED that Defendant

Equifax Information Services LLC’s Motion to

Dismiss, Dkt. 11, is GRANTED. Plaintiff Kevin Scott

10a

Bjornson’s Motion to Strike Equifax’s Reply, Dkt. 171, is DENIED as moot. Bjornson’s Motion to Strike

Equifax’s Motion to Dismiss, his Motion to Strike

Equifax’s counsel’s Notice of Appearance, his Motion

for Sanctions, and his Motion to Disqualify Equifax’s

Counsel are all DENIED. Bjornson’s Complaint is

DISMISSED with prejudice. The Clerk shall enter a

JUDGMENT and close the case. Dated this 25th day

of May, 2023.

Ila

APPENDIX C- ORDER DENYING PETITIION

FOR REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED DECEMBER 30, 2024

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 23-35421 D.C. No. 3:23-cv05128-BHS

Western District of Washington, Tacoma ORDER

KEVIN SCOTT BJORNSON,

PlaintiffAppellan t,

versus

EQUIFAX INFORMATION SERVICES, LLC,

Defendant-Appellee.

Before: SILVERMAN, R. NELSON, and MILLER,

Circuit Judges.

Bjornson’s petition for panel rehearing (Docket Entry

No. 24) is denied. No further filings will be

entertained in this closed case.

12a

APPENDIX D- EXHIBIT K AFFIDAVIT OF SCOTT

SEMANS DENIAL OF CREDIT TO PETITIONER

FILED FEBRUARY 24, 2023 AFFIDAVIT

OF SCOTT RAYMOND SEMANS

From: Scott Raymond Semans WASHINGTON

STATE DRIVERS LICENSE # (REDACTED),

On the behalf of: Kevin Scott Bjornson D.O.B

(REDACTED) SOC SEC # (REDACTED)

RE: DEFAMATORY STATEMENTS MADE

AGAINST KEVIN SCOTT BJORNSON BY

EQUIFAX INC

AFFIDAVIT

Around the end of July 2022, I received a phone call

from a friend of mine named Kevin Scott Bjornson.

We have known one another for several years, having

met at the Entrepreneurs’ Club in King County. Both

of us are in business; Kevin specializes in lighting

and lighting fixtures and I specialize in coins and

collectibles.

During our telephone conversation, Kevin explained

to me that he had won a case in the 9th Circuit Court

of Appeals against USAA Federal Savings Bank. He

began by explaining that he had sued five defendants

originally, among them

Equifax.

Kevin stated that he had filed disputes against each

of the banks in 2018 and that they had failed to

respond to his disputes. He stated that after the

13a

banks failed to comply, he reached out to Equifax

notifying them and requested that Equifax resubmit

the investigations on his behalf acting as an

intermediary throughout the dispute process. Kevin

stated that he also refiled his disputes with

TransUnion and Experian.

Kevin

explained

that

even

after

fifing

reinvestigations with Equifax, the various banks

continued to ignore his disputes. He also stated that

Equifax had a duty to handle his disputes once

notified of the illegal reporting and collection

practices of the banks, and that Equifax had done

nothing and therefore became co-defendants to his

claims. Sometime later, he told me that there were

several properties that he had been looking at in the

Aberdeen area just west of Olympia WA. As the

conversation progressed, Kevin expressed an interest

in borrowing $10,000.00 for a home down-payment,

and possibly of my also co-signing his mortgage. He

was having difficulty with lenders because Equifax

had failed to block the banks from reporting illegally

on his Equifax credit report. I told Kevin that I would

consider the request and get back to him.

Kevin’s protests made me a bit suspicious, so I

decided to review his court case starting with the US

District Court. The records showed that Kevin had

filed his case in the US District Court for the Western

District of Washington. There were five defendants

involved in the suit: Equifax, Bank of America, First

National Bank of Omaha, Discover Card, and USAA

Federal Savings Bank. As I scrolled through the

documents filed by each of the defendants, one

document in particular caught my attention: “Docket

14a

Entry 111, the Answer filed by the Defendant

Equifax Inc. and their attorney Helen McFarland on

10/20/20”.

Equifax stated that Kevin had a car repossessed, that

he was dead, that he had some inaccurate

information concerning his social security number,

and that he had filed some initial disputes with

Equifax which required his response. Equifax further

stated they had requested that he provide them with

proof that he was living by submitting certain

documentation from the SSA! Equifax further stated

that Kevin is a natural person residing in the State

of Virginia.

I had not seen Kevin for several years and barely

been in contact since his move from Seattle. After

reading this, I contacted him and told him that I did

not feel comfortable with lending him the money or

helping him with financing. I explained that the

issues in Equifax’s response were concerning. Kevin

claimed that everything I mentioned was a he.

He told me I could check his most recent amended

complaint to confirm his statements. I did so and was

not able to find any evidence that Kevin had filed any

complaint(s) or amended complaint(s) concerning a

defaulted car loan; or that he was reported deceased;

or that he was living or had ever lived in Virginia.

Although I know Kevin personally, I did not feel

comfortable lending money to or co-signing any

mortgages for him until the Equifax allegations have

been cleared up. Other prospective lenders, who don’t

know him, likely would be even more dismissive.

15a

Kevin later contacted me and requested that I

provide him with an affidavit in regards to events

mentioned above. I agreed that I would be willing to

provide a sworn statement that he could us as

evidence in court.

Signed /s/ Scott Raymond Semans Date 12/27/2022

NOTARY PUBLIC ACKNOWLEDGEMENT

State of Washington County of King

I have sufficient evidence by verification of valid

identification that Scott Raymond Semans is the

person who signed and sworn to (or affirmed) the

foregoing Declaration before me on 27 Dec 2022

(date) (Seal or stamp) (STAMPED) P CARTER

TAYLOR Notary Public State of Washington

Commission# 151476 My Comm, Expires Oct 8, 2026

Signature /s/ Carter Taylor, Date 27 De 2022

Notary Public My appointment expires■ 8 Oct 2026

16a

APPENDIX E-DEFENDANT-APPELLEE

EQUIFAX INFORMATION SERVICES LLC'S

CORRECTED EXCERPTS OF RECORD INDEX­

VOLUME 1 of 1,

FILED OCTOBER 18, 2023

No. 23-35421

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kevin Scott Bjornson, Plaintiff-Appellant,

v.

Equifax Information Services LLC, DefendantAppellee.

On Appeal from the United States District Court for

the Western District of Washington

No. 3:23-cv05128-BHS-U.S.

Hon. Benjamin H. Settle

DEFENDANT-APPELLEE EQUIFAX

INFORMATION SERVICES LLC'S CORRECTED

EXCERPTS OF RECORD — VOLUME 1 of 1

Theodore E. Roethke SEYFARTH SHAW LLP 1075

Peachtree Street, N.E., Ste. 2500

Atlanta, Georgia 30309-3958

Phone: (404) 885-1500

17a

Facsimile^ (404) 892-7056 Email:

troethke@seyfarth.com

Andrew R. Escobar, SEYFARTH SHAW LLP 999

Third Avenue, Suite 4700

Seattle, Washington 98104-4041

Telephone: (206) 946-4910

Facsimile: (206) 946-4901

Email: aescobar@seyfarth.com

Attorneys for Defendant-Appellee Equifax

Information Services LLC

18a

INDEX

(All documents redacted pursuant to FRAP 25(a)(5);

Plaintiff- Appellant’s contact and signature

information also redacted)

Plaintiffs Complaint (without exhibits)

Doc. No. 1 in District Court...................................... 3

Plaintiffs Amended Complaint

Doc. No. 6 in District Court...................................... 51

Exhibits to Plaintiffs Amended Complaint

Doc. No. 6-1 in District Court....................................101

Equifax's Motion to Dismiss

Doc. No. 11 in District Court.................................... 193

Plaintiffs Response to Equifax's Motion to Dismiss

Doc No. 13 in District Court.................................... 200

Exhibits to Plaintiffs Response to Equifax's

Motion to Dismiss

Doc. No. 13-1 in District Court................................. 218

Equifax's Reply in Support of its Motion to Dismiss

Doc. No. 14 in District Court................................... 264

Plaintiffs Surreply and Motion to Strike Equifax's

Reply

Doc. No. 16 in District Court.................................... 268

District Court's Order on Motion to Dismiss

Doc. No. 18 in District Court.................................... 232

Notice of Appeal

Doc. No. 20 in District Court.................................... 279

19a

28

District Court Docket

20a

APPENDIX F- PETITIONERS PETITION FOR

PANEL REHEARING

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kevin Scott Bjornson, Plaintiff-Appellant,

v.

Equifax Information Services LLC, DefendantAppellee.

No. 23-35421

District Court or

BAP Case No. 3:23-cw05128-BHS

PETITION FOR PANEL REHEARING

1. The Appellant hereby request for a rehearing of

the panel on the following grounds. The Appellant

believes that he raised points that the panel

overlooked which established his rights to his

action(s).

POINTS OVERLOOKED BY THE PANEL

i. Amend his Complaint.

ii. That his Complaint contained the elements

required to establish a Defamation under the

“Discovery Rule tolling the statute of limitations.

21a

And making the filing by the Appellant in the

U.S. District Court within the Statute of

limitations.

iii. That the same qualification(s) for Defamation

under the “Discovery Rule’ apply to the

Appellants Fair Credit Reporting Act claims.

iv. The Appellants rights to Amend his Complaint

in the U.S. District Court where the Appellant has

shown that a valid claim does exist.

v. The prejudiced raised against the Appellant by

allowing for Seyfarth Shaw LLP to Represent

Equifax while a conflict of interest.

vi. The Appellants Constitutional Rights under the

14th Amendment to a “Due Process of law, and to

“Equal Protection of the laws”.

SUPPORTING ARGUMENT

1. The Appellants Defamation and FCRA claims:

I.

Its clear from the Appellants Complaint filed in

the U.S. District Court (ER 88’89) and the

Affidavit of Scott Raymond Semans exhibit

K(ER 188’191) that Bjornson’s entered into his

negotiations with Semans without having been

denied and financing based on the Defamatory

Publication. Even though Bjornson did tell

Semans about the 9th Circuit case he still did

not have any knowledge of any specified denial

of credit that would result of it. It was not until

after Semans reviewed the Court decision(s)

that he discovered the Defamatory statements

(See ER 88’89, and ER 189’ 191). At the point of

“Discover^’ Bjornson had no idea what decision

Semans would make. It was not until after

22a

Semans contacted Bjornson (initially verbally

and then by Affidavit) did Bjornson become

aware of all of the elements regarding the

financial injury sustained to him as a result of

the Defamatory statements. (See ER 189-190).

However, the Appellee, in their CR12(b)(6) Motion to

dismiss admitted that the Discovery Rule applies

“where harm is sustained but the plaintiff has no

means of being aware of it”. And then stated that the

rule does not apply citing “Kittinger v. Boeing co., 21

Wn. App. 484, 487, 585 P.2d 812,814 (1978)” (See

footnote ER 195). Kittinger v. Boeing co was

overruled by both the Supreme Court of the State of

Washington and the 9th Circuit Court of Appeals.

II. In 2010 the 9th Circuit Court of Appeals utilized

the Revised Code for the State of Washington and

the governing case laws for the State of

Washington to develop the “Discovery Rule” when

applied to libel forms of Defamation in “JM

Martinac Shipbuilding Corp. v. Washington, 363 F.

App'x 529, 531 (9th Cir. 2010)”. JM Martinac

Shipbuilding Corp. v. Washington sets forth a set

of Washington Supreme Court Rulings in order to

establish and define the proper application of the

“Discovery Rule” in libel defamation cases.

a. In the “Ma tter ofEsta tes ofHibbard, 118Wash.2d

737, 826 P.2d 690, 696 (1992) (en banc)” the court

analyze and define what constitutes and act of

“Discovery”. In the “Matter of Estates of Hibbard”

the court ruled that discovery is not just when a

party should have known but when they suffer an

actual damage in the following statement:

i. However, the court in Grumman

23a

indicated that the statute begins to

run upon discovery that a defective

product caused the harm and not

simply when the apparent cause of

the harm is discovered.” Estates of

Hibbard, 118 Wn. 2d 737, 749

(Wash.

1992),

(applying the

discovery rule to a libel claim)”

supporting

JM

Martinac

Shipbuilding Corp. v. Washington,

363 F. App'x 529, 531 (9th Cir.

2010).

b.

And therefore, the Appellee’s reliance on

“Kittinger v. Boeing co., 21 Wn. App. 484, 487,

585 P.2d 812,814 (1978)” to defeat the

“Discovery Rule” is based on simply when the

apparent cause of the harm was discovered and

not when the product caused harm as defined in

“Estates of Hibbard”. “Kittinger v. Boeing co”

has been specifically overruled in the State of

Washington and the Appellant therefore affirms

the Appellee’s admission that the “Discovery

Rule” does apply “where harm is sustained” (See

footnote ER 195). Applying the principle of stare

decisis “Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003)”

II.

Under the 14th Amendment of the United

States Constitution the Appellant is entitled to

a “Due Process of Law” and an “Equal Protection

of the Law”. The Appellant believes that the

court has overlooked his right to the “Discovery

Rule”. See Vanelli v. Reynolds Sch. Dist. No. 7,

667 F.2d 773, 777 (9th Cir. 1982).” Llamas v.

24a

Butte Comm. Coll. Dist, 238 F.3d 1123, 1128

(9th Cir. 2001).

III. In his Complaint filed in the U.S. District Court,

Bjornson clearly explained how he discovered

that he had suffered a financial injury. (See ER

88*89). The Appellee never contested those

elements as being barred under the “Discovery

Rule”. Nor laid any claim(s) to a privilege in

order to defeat a claim supported by the

“Discovery rule” as set forth in “JM Martinac

Shipbuilding Corp. v. Washington, 363 F. App'x

529, 531 (9th Cir. 2010)”.

IV. The 9th Circuit Court of Appeals has explicitly

ruled on this Issue. JM Martinac Shipbuilding

Corp filed suit against The State of Washington

for claims arising out of Defamation. The court

noted the 2*year statute of limitations presented

under RCW 4.16.100(1) automatically tolls

whenever a claim for Defamation meets the

“Discovery Rule” test as prescribed by “JM

Martinac Shipbuilding Corp. v. Washington”.

As follows^

i.

subject to the applicable provisions of

chapter 4.16 RCW pertaining to the

tolling and extension of any statute of

limitation, no claim under this chapter

may be brought more than three years

from the time the claimant discovered

or in the exercise ofdue diligence should

have discovered the harm and its cause.

25a

ii. However, the court in Grumman

indicated that the statute begins to run

upon discovery that a defective product

caused the harm and not simply when

the apparent cause of the harm is

discovered”. “Estates of Hibbard, 118

Wn. 2d 737, 749 (Wash. 1992)".

b.

The Court Stated that the “Discovery Rule’s

purpose was as follows^

i.

c.

The discovery rule reflects a judicial

determination

to

balance

the

possibility of stale claims against the

unfairness ofprecludincjustified causes

of action where a plaintiff is unable to

ascertain within the statute of

limitations period that a wrong has

been committed. U.S. Oil, at 93. “North

Coast Air v. Grumman Corp., Ill Wn.

2d 315, 331 (Wash. 1988).

The Court in Estates of Hibbard sets the

statute of limitations as follow:

ii.

Furthermore,

the

Legislature,

concerned that the

Ohler rule

(postponing accrual of an action until

plaintiff reasonably knows all the

essential elements ofa possible cause of

action) would unjustifiably extend a

statute of limitations period, modified

the rule by enacting RCW 7.72.060(3) to

provide that "no claim under this

chapter may be brought more than three

26a

years from the time the claimant

discovered or in the exercise of due

diligence should have discovered the

harm and its cause.

27a

Supported by “chapter 4.16 RCWpertaining to

the tolling and extension of any statute of

limitation Estates of Hibbard, 118 Wn. 2d 737,

751-52 (Wash. 1992).

iii.

The Appellant presented the elements

required in order to maintain an action

under the Discovery Rule as presented by

“JM Martinac Shipbuilding Corp. v.

Washington” and delineated in “Matter of

Estates of Hibbard”. From the time the

apparent cause of the harm is discovered

until the product actually caused the harm,’

in each scenario the Court analyzed the

essential elements of possible cause of action,

i.e., “duty, breach, causation, and damages

“Estates of Hibbard, 118 Wn. 2d 737, 747

(Wash. 1992).

j.

As follows^

i.

(Duty): In the case of Estates of Hibbard, the

court recognized that individuals have a duty to

exercise reasonable care in their actions.

ii.

(Breach): In Estates of Hibbard, the court

examined whether the defendant’s actions fell

short of what would be expected from a

reasonably

prudent

person

in

similar

circumstances.

iii.

(Causation): Actual cause is established if it can

be shown that but for the defendant’s breach, the

plaintiff would not have suffered harm.

Proximate cause involves evaluating whether

28a

the harm was a foreseeable result of the

defendant’s actions. The court in Estates of

Hibbard emphasized that both elements must be

satisfied for liability to be imposed.

iv.

(Damages): In Estates of Hibbard, damages can

include both economic losses (such as medical

expenses and lost wages) and non-economic

losses (such as pain and suffering). The court

highlighted that damages must be proven with

sufficient evidence and must directly relate back

to the breach and causation established earlier

in the analysis.

v.

The Appellant in his Complaint clearly states

the elements required to maintain an action

under the “Discovery Rule”. He included:

a.

A clear statement of claims, (i.e. that Scott

Semans read the defamatory statements and

denied him financing which was an actual

damage as a result of the defamatory

Statements.

b.

Factual allegations supporting lack of prior

knowledge (Bjornson clearly stated that the act

of Defamation through Semans commenced

around the end of July 2022. And concluded with

Semans providing Bjornson a “Sworn” Affidavit

around the end of December 2022 concerning the

events leading up to the Defamation being

viewed by Semans and his decision as a result of

the Defamatory Statements not to finance

Bjornson (See ER 189-191).

c.

Evidence of reasonable diligence. The Appellant

showed by the preponderance of evidence that he

29a

had no knowledge that Semans would decide to

deny him financing. Until Semans read the

Defamatory statements on the Defamatory

Statements (See ER 88-89 and ER 188- 191).

d.

Specific details regarding discovery timelines.

The Appellant proved (and which was admitted

by the Appellee) that the end of July 2022 was

the date that Scott Semans began his review of

the Defamatory court filings. And that Semans

decided to deny Bjornson financing as shown in

the “Sworn Affidavit” of Scott Semans notarized

on the 27th of December 2022 and provided to

Bjornson (See ER 189-191 and ER 195- 196).

e.

Compliance with statutory filing requirements.

(Based on the “Discovery Rule” the Appellant

filed his Complaint in the U.S. District Court on

the 16th of February 2023 just 52 days after

Scott Semans provided a ‘Sworn Affidavit” on the

27th of December 2022 (See ER 189-191). The

Appellant therefore meets the conditions

prescribed in “JM Martinac Shipbuilding Corp,

Estates ofHibbard, North Coast Air v. Grumman

Corp, and Johnson v. Boeing Co for maintaining

an action for Defamation Libel, under the

“Discovery Rule”.

f.

Therefore, the Appellant believes that the 9th

Circuit Court of Appeals overlooked the

following 2 factors:

30a

a.

The Appellants right to Amend his Complaint to

further establish his claims under the “Discovery

Rule” as stipulated in the following case

standard^

i.

“We have held that "[a]pro se litigant must be

given leave to amend his or her complaint. "Noll

v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)

(internal quotation marks omitted). "Safouane v.

Fleck, 226 F. App'x 753, 767 (9th Cir. 2007)”.

a.

And Secondly:

ii.

“Upon remand, the district court should permit

the Safouanes to attempt to amend their

complaint to allege facts, if such exist. ” Safouane

v. Fleck, 226 F. App'x 753, 767 (9th Cir. 2007).

V.

The fact that the Appellants current claim(s)

meet the standards of prescribed by law to

maintain an action under the “Discovery Rule” J

Noting that the “Discovery Rule” does not

explicitly stipulate the format in which a

Complaint must be filed, but instead stipulates

which elements must be met in order to maintain

an action under the “Discovery Rule”. Applying

the “Discovery Rule” to both the Appellants

31a

Defamation and FCRA claims.

VI. The principle of stare decisis dictates that

lower courts must follow precedents set by

higher courts within their jurisdiction unless

those precedents are explicitly overturned or

modified by subsequent rulings from higher

courts as follows:

i.

Justice Kennedy expressed the same concept in

terms ofa definition of stare decisis in County

of Allegheny v. ACLU Greater Pittsburgh

Chapter,482 U.S. 573, 109 S.Ct. 3086, 106

L.Ed.2d 472 (1989). "As a general rule, the

principle of stare decisis directs us to adhere

not only to the holdings of our prior cases, but

also to their explications ofthe governing rules

of law." Id. at 668, 109 S.Ct. 3086

(Kennedy, J., concurringin part and dissenting

in part). Miller v. Gammie, 335 F. 3d 889, 900

(9th Cir. 2003).

VII. The Appellant utilizes case laws that are

established through the 9th Circuit Court of

Appeals in 2010 and backed by Washington

State Supreme Court Rulings which stem

from 1988-1992 with further support from the

Legislation in the Revise Code of the State of

Washington as currently held by chapter 4.16

RCW pertaining to the tolling and extension of

any statute of limitation and RCW 7.72.060(3)

to provide that "no claim under this chapter

maybe brought more than three years”.

32a

VIII. Likewise, the United States Supreme Court in

“Randall v. Sorrell, 548 U.S. 230, 243'44 (2006)”

established the doctrine deciding which opinion

and case law(s) the court should follow.

a. The Court has often recognized the

"fundamental importance" of stare decisis,

the basic legal principle that commands

judicial respect for a court's earlier decisions

and the rules of law they embody. See

Harris v. United States, 536 U. S. 545, 556557 (2002) {plurality opinion) (citing

numerous cases). The Court has pointed out

that

stare

decisis

"'promotes

the

evenhanded, predictable, and consistent

development of legal principles, fosters

reliance on judicial decisions, and contributes

to the actual and perceived integrity of the

judicial process.'" United States v.

International Business Machines Corp.,

517 U. S. 843, 856 (1996) (quotingPayne

v. Tennessee, 501 U. S. 808, 827 (1991)),

Randall v. Sorrell, 548 U.S. 230, 243'44

(2006).

i.

Since the TIM Martinac” the same case law

standards have been enforced by the U.S. District

Court for the Western District of Washington as

follows ■

a. “Under the discovery rule, the limitations period

does not begin to run until plaintiff knew or, in

the exercise of diligence, should have known the

facts giving rise to the claim.” Johnson v. Boeing

Co., Civil Case No. C17-0706RSL, 2 (W.D. Wash.

33a

Nov. 7, 2017).

IX. While Washington State did adopt the “Single

Publication Rule” in 1987 “Herron v. KING

Broadcasting Co., 109 Wash. 2d 514, 746 P.2d 295

(1987)”. In 2010 the 9th Circuit Court of Appeals

ruled on a case which set a new precedence for

“Libel Defamation”. The Appellant’s FCRA

claims also fall under the “Discovery Rule” and

therefore the same statutory and governing case

laws; i.e. the “Discovery Rule” also applies to his

claims of Defamation and to his FCRA claims as

stated herein. And the Appellant holds that he

should have had the right to Amend his

Complaint at minimum in order to establish or

clarify his FCRA claims under the “Discovery

Rule”.

X.

The Appellant also contends that his original

Complaint did meet the threshold as stipulated

by the governing case laws and as mentioned

herein. In order to maintain an action under the

“Discovery Rule”. And even if the court was to

rule that there was some sort of lacking The

Amendment of the Complaint would not have

been futile.

1.

The Appellants Motions to Strike:

I.

The Appellee did not file their Reply until

04/17/2023 late and a clear violation of the Local

Rules (See ER 264-267). Likewise, it was a

violation of the Appellants Rights to Due

Process as the Appellant did in fact file a

“Sureply” Motioning the court to Strike the

Reply (See ER 268-271).

34a

II.

The Local Rules for the U.S. District Court for

the Western District of Washington at Tacoma.

State the following: “LCR7(b)(3) Reply Brief.

The moving party may, within the time

prescribed in LCR 7(d), file with the clerk, and

serve on each party that has appeared in the

action, a reply brief in support of the motion,

together with any supporting material of the

type described in subsection (1).

III. LCR 7(b)(3) Explicitly states that the Reply

Brief is “reply brief in support of the motion”

That Motion being the Appellee’s CR12(b)(6)

Motion to dismiss now had no Defense against

the Appellants Response and “Motion(s) to

Strike” (See ER 200’219). The Appellee also

failed to Respond to the Appellants Motion(s) to

Strike (See ER 280’281). The last sentence of

LCR 7(b)(2) Obligation of Opponent states the

following: “If a party fails to file papers in

opposition to a motion, such failure may be

considered by the court as an admission that

the motion has merit”. Governing case law state

the following for failure to Respond:

b.

“The failure of an opposing party to file points

and authorities in response to any motion,

except a motion under Fed. R. Civ. P. 56 or a

motion for attorney's fees, constitutes a consent

to the granting of the motion.” Easley

Collection Serv. of Nev., 910 F.3d 1286, 1290

(9th Cir. 2018)”.

IV.

Seconding these arguments is the fact that not

only did the Appellee’s Reply (ER 264’267) fail

to Deny the allegations presented by the

Appellant in his Response ER 200’219). But the

fact that the Appellant Motioned the Court to

35a

Strike the Reply of the Appellee under the

following case standard which should also be

afford the right of Equal Protection of law under

Section 1 of the Fourteenth Amendment of the

Constitution.

Case standard as follows:

a. Before granting dismissal for failure to follow

local rules, the Court must consider several factors,

including “(1) the public's interest in expeditious

resolution of litigation”; “(2) the court's need to

manage its docket”; “(3) the risk ofprejudice to the

defendants”; “(4) the public policy favoring

disposition of cases of their merits”; and “(5) the

availability ofless drastic sanctions” “(Ghazali, 46

F.3d at 53 (quoting Henderson v. Duncan, 779

F.2d 1421, 1423 (9th Cir.1986)) (internal

quotation marks omitted).

i.

Where the U.S. District Court local rules

prescribe the following:

a. LCR 7(b)(3) Reply Brief. “The moving party may,

within the time prescribed in LCR 7(d), file with

the clerk, and serve on each party that has

appeared in the action, a reply briefin support of

the motion, together with any supporting material

of the type described in subsection (1). In the U.S.

District Court for the Western District of

Washington, Local Civil Rule 7(d)(3) specifies the

timeframes for filing responses and replies to

motions.

ii.

According to this rule: Any reply papers shall be

filed and received by the opposing party no later

36a

than 21 days after the filing date of the motion.

b.

“Parties have an obligation to respond to

motions. See C.D. Cal. R. 7-9', see also Ferdik v.

Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)

(district courts have power to "manage their

dockets without being subject to the endless

vexatious noncompliance of litigants"). The

public's interest in expeditious resolution of

litigation is clearly served when parties file

oppositions to substantive motions. This factor

also "always favors dismissal." Yourish v. Cal.

Amplifier, 191 F.3d 983, 990 (9th Cir.

1999), Patel v. City ofLos Angeles, No. 18- 55983,

3 (9th Cir. Jan. 30, 2020)”.

iii.

The Appellant affirms his rights to a Due

process of law as mandated by the United States

Constitutions

Fourteenth

Amendments

guarantee “due process”. The Appellant also

affirms his Constitutional rights under the “The

Equal Protection Clause of the Fourteenth

Amendment”. Which mandates that individuals

in similar situations be treated equally under

the law. As seen in Patel v. City ofLos Angeles,

No. 18-55983, 3 (9th Cir. Jan. 30, 2020)” The

Appellant’s case has the exact same scenario

and therefore the Appellant is entitled to Equal

Protection.

1.

The Motion(s) for Disqualification.

I.

The Appellant now looks at the Motion(s)

contained within his Motion(s) to Strike and the

first Motion was to Disqualify both the Attorney

37a

and firm of the Appellee. Bjornson lays out that

it was Seyfarth Shaw and their Attorney

Heather Mcfarland acting on behalf of Equifax

Information Services LLC. That filed the

erroneously,

falsified,

and

defamatory

statement(s) with the U.S District Court on

behalf of Equifax. And that all attorney’s,

assistants, employees, and agent’s associated

with Seyfarth Shaw LLP are key interest to the

Appellant. And further are required to testify

before the court in-regards to both the interest

of the Plaintiff Kevin Scott Bjornson and that of

Equifax Information Services LLC (See ER 200

207).

II.

Secondly the Appellant states that the entire

law firm is subject to privileged information as

to how the Defamatory remarks came into

existence. If there was any conspiracy in­

regards to such statements. And did Equifax

know about the statements or is there evidence

to show that Seyfarth Shaw LLP was actually

behind the defamatory statements. (See ER 200207). And does Seyfarth have special knowledge

as to how the Defamation occurred. That being

the Appellants Constitutional Rights may

become hindered by Equifax’s representation. If

the court would allow Seyfarth to represent

Equifax it would be a prejudice against the

Appellant. As they would be subject to discovery

procedures

to

provide

deposition(s),

Interrogatories, and to testify before the court.

The Appellant believes that the Appellee’s

lawyer and law firm represent an direct

Constitutional Prejudice against the Plaintiff

and his rights to a due process and a fair trial.

38a

II.

Some of the governing case laws say the

following:

c.

As stated in Redd v. Shell Oil Co., supra,

"lawyer conflict of interest problems ought to

be brought up long before the date of trial in

an atmosphere which does not cast a shadow

over the trial itself." 518 F.2d at 316. Trust

Corp, 's failure to timely object and its lengthy

delay in filing a motion to disqualify cannot be

tolerated where, as here, disqualification would

certainly cast a shadow over the trial. Trust

Corp, ofMontana v. Piper Aircraft Corp., 701

F.2d 85, 88 (9th Cir. 1983).

d.

This court has warned that a “motion to

disqualify a law firm can be a powerful

litigation tactic to deny an opposing party's

counsel of choice.” In re Cty. ofZ.A,223 F.3d

990, 995 (9th Cir. 2000); see also Optyl

Eye wear Fashion Inti Corp. v. Style Cos., 760

F.2d 1045, 1050 (9th Cir. 1985) (motions to

disqualify “subjected to particularly strict

judicial scrutiny”). We are mindful of the

drastic nature of disqualification. See HRCP

1.9. comment 4, Reading Inti, Inc. v. Malulani

Grp., Ltd, 814 F.3d 1046,1053 (9th Cir. 2016).

III. The Appellant again affirms his rights to

Due Process of Law under the Equal

Protection clause of the Fourteenth

39a

Amendment of the United States Constitution.

IV. CLOSING

1.

The Appellant believes that the 9th Circuit

Court of Appeals most notably overlooked his

rights as stated by “the Discovery Rule”

pertaining to both his Libel Defamation claims

and his Fair Credit Reporting Act claims. The

Appellant therefore respectfully ask that the

court approve this Petition for Rehearing.

Signed /s/

Kevin Scott Bjornson Date: 06/04/2025

Name: Kevin Scott Bjornson

407 E Young St Elma, WA 98541

40a