Opposition Brief — Allison v. State Farm Farm Mutual Automobile Insurance Co (No. 07-1600)

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES E. ALLISON and FLORA ALLISON,

Petitioners,

Vv

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court of Appeals For

The Ninth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MICHAEL S. ROGERS

Counsel of Record

REED McCLURE

Two UNION SQUARE

601 UNION ST., SUITE 1500

SEATTLE, WA 98101-1363

(206) 292-4900

CORPORATE DISCLOSURE

STATEMENT PURSUANT TO

SUPREME COURT RULE 29.6

Respondent, whose correct name is State Farm

Mutual Automobile Insurance Company, is an Illinois

Corporetion. It has no parent corporation, and no

publicly held company owns more than 10% of its

stock.

ll

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE

STATEMENT PURSUANT TO

SUPREME COURT RULE 239.6 ................. i

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TABLE OF AUTHORITIBEG......ccccccciccccccccccsecsceces iv

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eee eee. OF THE, CASE’ .....ccccccccccccccossceccccee 1

REASONS WHY PETITION SHOULD BE

FT RETEST EBE a ite erent c ps 4

A. THE NINTH CIRCUIT

CORRECTLY HELD THE

DISTRICT COURT HAD NO

JURISDICTION TO REVIEW

STATE COURT DECISIONS. .........e...s000e 4

B. PETITIONERS ARE NoT

CHALLENGING 'WASHINGTON’S

JURY SELECTION PROCESS ............0+2: 6

+4 PETITIONERS HapD AMPLE

OPPORTUNITY TO RAISE THEIR

FEDERAL CLAIMS IN STATE

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D. EVEN IF ROOKER-FELDMAN DID

NoT APPLY, THE RESULT

WOULD BE THE SAME BECAUSE

PETITIONERS HAVE NoT

ALLEGED STATE ACTION BY

Te Fe iki cicickdiccetenasicteniascimeceses 10

E. EVEN IF ROOKER-FELDMAN DID

Not APPLY, THE RESULT

WOULD BE THE SAME BECAUSE

PETITIONERS § 1983 CLAIM IS

BARRED BY THE STATUTE OF

DI Sisicitbiscncimstcullinccenstmcnnvicivn 14

EA A RET oiniciavsnpcisanmiegesintincnninaansastavénnmnnionins 15

TABLE OF AUTHORITIES

Cases

Page

Adickes v. S. H. Kress & Co., 398 U.S. 144,

90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).............. 11

District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75

L. Ed. 2d 206 (1983).............. 1, 4, 5, 6, 7, 8, 10, 14

Edmonson v. Leesville Concrete Co., Inc.,

500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed.

i crest icnlsnw sebeonysncaveaaen 11, 12

Exxon Mobil Corp. v. Saudi Basic Industries

Corp., 544 U.S. 280, 125 S. Ct. 1517, 161

OI ah fist i sc na cschaesenddiniseenbaaesnoie’ 5

Georgia v. McCollum, 505 U.S. 42, 112 S. Ct.

BO46, 120 Ls. BG. BG BS CIBSD) ....0...0...0.c0isccecesc0ees 12

Long v. Shorebank Development Corp., 182

Fe I EB iiser cirsnscisesdecccesencesapscesces 8,9

Lugar v. Edmondson Oil Co., Inc., 457 U.S.

922, 102 S. Ct. 2744, 73 L. Ed. 2d 482

REE S S Sac nae ee Rene oO ete 12, 13

Morales v. City of Los Angeles, 214 F.3d 1151

SP NS a 8 iu ascud wants 14

Noel v. Hall, 341 F.3d 1148 (9 Cir. 2003).............. 7

Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573,

og eae BR GR a ne ee OE 14

Petcu v. State, 121 Wn. App. 36, 86 P.3d

1234, rev. denied, 152 Wn.2d 1033 (2004)........ 14

Rooker v. Fidelity Trust Co., 263 U.S. 413,

44S. Ct. 149, 68 L. Ed. 362

ME sitiiaicsuebdintsthcascoiigatanciennae 1, 4, 5, 6, 7, 8, 10, 14

Wilson v. Garcia, 471 U.S. 261, 105 S. Ct.

1938, 85 L. Ed. 2d 254 (1985)........-..cccccccecceeeees 14

Wood v. Orange County, 715 F.2d 1543

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Constitutions

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Wash. Rev. CODE $4.16.060(2).............0...00..0sccc000. 14

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JURISDICTION

Petitioners seek review of a decision of the

Ninth Circuit court of appeals affirming a federal

district court decision. This case did not originate in

state court. This court already denied certiorari of

the separate state court proceeding. Jurisdiction

here is based on 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

Petitioners alleged in their complaint in

federal district court that in a different lawsuit, a

Washington state court erred in seating certain

jurors over their objections. Petitioners alleged their

constitutional rights were violated. Petitioners asked

the federal] district court to review those decisions.

The district court dismissed petitioners’

complaint for lack of jurisdiction and failure to state

a claim. (Petitioners’ App. at 5a) The district court

lacked federal question jurisdiction to review a state

court decision under the Rooker-Feldman doctrine.

The district court lacked jurisdiction under 28 U.S.C.

§ 1343(a)(3) and the Fourteenth Amendment to the

United States Constitution because State Farm did

not act under color of state law. The Fifth and

Seventh Amendments provided no_ jurisdiction

because they limit only powers excercised by the

federal government, and the Sixth Amendment

provided no jurisdiction because it applies only to

criminal prosecutions. The district court lacked

diversity jurisdiction because petitioners made no

showing of the amount in controversy required by 28

U.S.C. § 1332.

The Ninth Circuit Court of Appeals affirmed in

an unpublished memorandum decision. (Id. at 1a)

Petitioners alleged in their complaint that

petitioner James Allison was involved in an auto

accident. State Farm denied coverage. Petitioners

sued State Farm in Washington State district court.

(Record 4-5 — Complaint pp. 3-4)

At trial in June 2001, petitioners’ lawyer

allegedly objected to the presence of State Farm

policyholders on the jury. The judge allowed them to

stay on the jury “despite strenuous objection and

motions” by petitioners’ counsel. (Record 4, 9-12 —

Complaint pp. 3, 8-11) Petitioners failed to put their

juror challenges on the record. (Appellants’ Ninth

Circuit Brief at 7, 8)

At trial, the jury found State Farm breached

its contract and had to provide coverage for a portion

of James Allison’s losses. Petitioners appealed to

superior court, which affirmed the judgment. The

Court of Appeals and Washington Supreme Court

denied review. (Record 5 — Complaint p. 4)

The matter was remanded back to state

district court, where the court denied the request of

both petitioners for attorney fees. (Record 5-6 —

Complaint pp. 4-5) The court denied the motion for

fees because of misrepresentations made in

connection with the insurance claim investigation.

The court ruled that this conduct was inequitable,

breached the contract, violated public policy, and

prejudiced State Farm. (Record 60-64)!

1 The district court considered the decision of the state district

court denying petitioners’ motion for attorney's fees. (Record

60-64) Petitioners referred extensively to this document in their

complaint. (Record 5-6, 18 — Complaint pp. 4-5, 17)

It is abundantly clear from the trial

record in this case that Plaintiffs have

come before this court requesting

attorney fees and costs with “unclean

hands.” The material

misrepresentations of facts and

circumstances made by Plaintiffs to

Defendant in connection with the

insurance claim _ investigation of

purported damage to Plaintiffs’ vehicle

violated the terms of the insurance

contract, as well as the public policy of

this state and were prejudicial to the

Defendant. None of the factors set forth

in the Olympic Steamship case to form

an [sic] basis for an award of attorney

fees are present in this case. Plaintiffs’

own acts preclude an award of attorney

fees under the equitable grounds upon

which the Olympic Steamship case is

based.

(Record 64)

Petitioners appealed again to superior court.

The superior court affirmed. The Court of Appeals

and Washington Supreme Court denied review.

(Record 5-6, 18 — Complaint pp. 4-5, 17)

Petitioners filed a petition for certiorari with

the United States Supreme Court on the issues of

“fair juries, jury thinking on misrepresentation

without ever being asked to make such a finding, and

fees to a separate party spouse.” The Supreme Court

denied certiorari. (Record 6 — Complaint p. 5)

Petitioners complained their due process rights

under the United States Constitution were violated

because the jury was biased. (Record 7, 9 —

Complaint pp. 6, 8) They complained they were

damaged by “the positions [State Farm] has taken in

litigation throughout the history of this matter, and

its failure to provide full insurance coverage and pay

for all of Plaintiffs attorney fees and costs.” (Record

21 — Complaint p. 20)

Petitioners did not plead any specific cause of

action against State Farm. Instead, they asserted

that the federal district court had “jurisdiction to

review a highest state court decision.” (Record 3 —

Complaint p. 2) They asked the district court to

order a new trial, and to “remand to the state courts

for all possible remedies and relief.” (Record 22 —

Complaint p. 21)

REASONS WHY PETITION

SHOULD BE DENIED

A. THE NINTH CIRCUIT CORRECTLY HELD THE

DISTRICT COURT HAD NO JURISDICTION TO

REVIEW STATE COURT DECISIONS.

The Ninth Circuit correctly held that under

the Rooker-Feldman doctrine, the district court had

no jurisdiction to review state court decisions. In

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct.

149, 68 L. Ed. 362 (1923), the plaintiff filed an action

in federal district court seeking to do precisely what

petitioners attempt to do in this action. They asked

the court to rule that a state court judgment was null

and void because it was rendered and affirmed in

violation of the due process and equal protection

clauses of the Fourteenth Amendment. The district

court held it had no jurisdiction, and this Court

affirmed.

Under the legislation of Congress, no

court of the United States other than

this court could entertain a proceeding

to reverse or modify the judgment for

errors of that character. .. . To do so

would be an exercise of appellate

jurisdiction. The jurisdiction possessed

by the District Courts is strictly original.

Rooker, 263 U.S. at 416 (citations omitted).

In Exxon Mobil Corp. v. Saudi Basic Industries

Corp., 544 U.S. 280, 125 S. Ct. 1517, 161 L. Ed. 2d

454 (2005), this Court further defined the parameters

of the doctrine. Rooker-Feldman applies to “cases

brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the

district court proceedings commenced and inviting

district court review and _ “rejection of those

judgments.” Exxon, 544 U.S. at 284.

This case falls squarely within Rooker-

Feldman. Petitioners lost in state court. They

petitioned this court for review, and were denied.

They later filed suit in federal court complaining they

were injured by entry of the state court judgment,

because it was based on a jury verdict that violated

their right to due process. They asked the federal

court to “review” the state court judgment, and

reverse it. In their brief opposing State Farm’s

motion to dismiss, they stated:

State Farm does not dispute the right of

the United States Supreme Court here

earlier to review the state court

decisions through the highest state

court. This was done here, but certiorari

was denied. Now the review for

constitutional violations under federal

practice can start again at the United

States District Court level, and if

necessary, reviewed through the circuit

courts of appeals and then back to the

United States Supreme Court. This

. is our system of checks and balances

among the court systems to nght United

States Constitutional and _ statutory

wrongs imposed through the _ state

system.

(Record 68-69) Petitioners also asserted that the

district court had authority to “order a new trial or

order the state court system to review the various

issues.” (Record 77)

Petitioners’ first question presented again

asserts that “federal courts have jurisdiction to

review state court decisions.” (Petition for Certiorari

at i) Under Rooker-Feldman, the federal district court

had no jurisdiction to conduct such a review. The

Court of Appeals properly affirmed dismissal of

petitioners’ complaint.

B. PETITIONERS ARE NOT #£(CHALLENGING

WASHINGTON’S JURY SELECTION PROCESS.

Petitioners assert that the Ninth Circuit’s

decision conflicts with a Fourth Circuit case because

Rooker-Feldman_ divests a_ district court of

jurisdiction to review a state court decision, but not

to consider a challenge to the constitutionality of the

process by which a state court decision was reached.

However, petitioners have not claimed _ that

Washington’s jury selection procedures’ are

unconstitutional. Instead, petitioners asserted that

the state judge “simply violated the state law

regarding impartial jury selection.” (Appellants’

Ninth Circuit Brief at 16) They claim their injury

was caused by “the trial court’s decision.” (Petition

for Certiorari at 16) Petitioners point to no

Washington procedure that prevented them from

challenging prospective jurors based on bias.

Indeed, Washington law expressly permits

litigants to challenge for cause prospective jurors who

are biased. WASH. REV. CODE §4.44.170. Bias is

defined to include an interest on the part of the juror

in the event of the action, or the principal questions

therein. WASH. REV. CODE §4.44.180. Petitioners

even quote these statutes in their petition for

certiorari, at pages 6-7. Petitioners do not identify

any state statute or rule they claim is

unconstitutional.

Petitioners simply asserted that the state court

judge made the wrong decision under Washington's

procedures. They asked the district court to “review”

that decision. The Ninth Circuit correctly held the

district court had no jurisdiction under Rooker-

Feldman.

a PETITIONERS HAD AMPLE OPPORTUNITY TO

RAISE THEIR FEDERAL CLAIMS IN STATE

COURT.

Petitioners assert that the Ninth Circuit’s

decision conflicts with decisions by the Seventh

Circuit and other courts because Rooker-Feldman

does not apply where a litigant had no reasonable

opportunity to raise federal constitutional claims in

state court. This argument is surprising because the

Ninth Circuit has approved the formulation of

Rooker-Feldman used by the Seventh Circuit. Noel v.

Hall, 341 F.3d 1148, 1164-65 (9t» Cir. 2003). In fact,

in this case the Ninth Circuit expressly recognized

this limitation on Rooker-Feldman, and ruled that

petitioners did have a reasonable opportunity to raise

in state court the issues they raise now. (Petitioners’

App. at 3a-4a) There is no conflict with other circuits.

Petitioners’ reliance on Wood uv. Orange

County, 715 F.2d 1543, 1545-46 (11% Cir. 1983), is

misplaced. There, liens were entered without any

prior notice to the federal court plaintiffs. Here,

petitioners had notice. They filed the state court

action. They demanded the jury. The trial was for

their own claims against State Farm.

Petitioners’ situation bears no comparison to

that of the tenant in Long v. Shorebank Development

Corp., 182 F.3d 548 (7% Cir. 1999). There, the tenant

brought a claim for wrongful eviction in violation of

federal] and state laws. She alleged that a landlord

evicted her for nonpayment of rent at an ex parte

hearing. She claimed the landlord’s attorney tricked

her into signing a document she was told would

preclude the landlord from taking action against her

to obtain a judgment, but was in fact consent to entry

of judgment against her.

The Seventh Circuit held that Rooker-Feldman

is jurisdictional, and broadly “applies not only to

claims that were actually raised before the state

court, but also to claims that are inextricably

intertwined with state court determinations.” Long,

182 F.3d at 554-55. However, “an issue cannot be

inextricably intertwined with a state court judgment

if the plaintiff did not have a reasonable opportunity

to raise the issue in the state court proceedings.” Id.

at 558. Interestingly, the court held that the alleged

“chicanery” of the landlord’s attorney was not enough

to show the tenant was denied a_ reasonable

opportunity to raise her claims in state court. The

tenant would have to point to some _ factor

independent of the actions of the opposing party. Id.

The tenant satisfied this requirement because Illinois

law did not allow a tenant to raise matters unrelated

to possession in a forcible entry and detainer

proceeding. Id. at 559.

In contrast to the tenant in Long, petitioners

had ample opportunity to argue to the state court

that their due process rights were violated by the

denial of their juror challenges. Petitioners attached

as exhibits to their complaint twenty pages of

transcript from two separate state court hearings

where their attorney vigorously voiced his

displeasure with the court’s denial of his clients’

challenges for cause. (Record 24-43) Their attorney

cited case law to the state judge to support his

position that Washington law required that the court

grant his juror challenges. (Record 34, 41; See also

Appellants’ Ninth Circuit Brief at 8)

The Washington Constitution provides

protections at least as broad as the United States

Constitution. It provides that no person shall be

deprived of life, liberty, or property without due

process of law. WASHINGTON CONSTITUTION, art. 1, §

3. Petitioners quote this provision in their petition

for certiorari, at 6. Petitioners fail to articulate any

reason why they were unable to raise constitutional

due process protections under the federal or state

constitutions with the Washington courts.

Petitioners’ comparison of this case to

situations where a judge was biased or bribed is

specious. Petitioners complain here of the denial of

their juror challenges. That denial was made by the

state court judge, not the allegedly biased jurors.

10

Petitioners do not allege that the judge who denied

their juror challenges was biased. Petitioners had

every opportunity to raise their constitutional

challenges to the state court judge.

If petitioners failed to raise a constitutional

issue, their failure was due to their own omission, not

to lack of opportunity. Such failure would not alter

the federal court’s lack of jurisdiction. See District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462,

483 n.16, 103 S. Ct. 1303, 1316 n.16, 75 L. Ed. 2d 206

(1983). However, petitioners told the federal district

court that they raised their constitutional issues

before the state courts. They admitted that “all the

constitutional issues here have been in litigation for

years.” (Record 79) They raised the constitutionai

issues before the state appellate courts, and before

the United States Supreme Court on their petitior

for certiorari. (Record 78)

Therefore, the Ninth Circuit's decision does not

conflict with other cases that address situations

where litigants had no reasonable opportunity to

raise federal constitutional claims in state court.

D. EVEN IF ROOKER-FELDMAN DID NOT APPLY,

THE RESULT WOULD BE THE SAME BECAUSE

PETITIONERS HAVE NOT ALLEGED STATE

ACTION BY STATE FARM.

As the district court held, the result would be

the same even if Rooker-Feldman did not apply.

Petitioners’ claim under 42 U.S.C. § 1983 would fail

because they have not alleged state action by State

Farm. Therefore, even if there was a conflict between

the circuits, this Court should deny certiorari.

Section 1983 requires proof of two elements.

First, the plaintiff must prove that the defendant has

11

deprived the plaintiff of a right secured by the

Constitution and laws of the United States. Second,

the plaintiff must show that the defendant deprived

him of this right under color of state law. Adickes v.

S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598,

26 L. Ed. 2d 142 (1970). The “under color of any

State law” requirement is jurisdictional. 28 U.S.C. §

1343(a)(3).

Neither element is present. First, petitioners

alleged that the state court, not State Farm, deprived

them of due process when the court denied their

requests to strike biased jurors. Petitioners merely

alleged they were harmed by State Farm’s litigation

positions. As a matter of law, a private party that

takes litigation positions in a civil lawsuit against

another private party is not engaging in state action,

or acting under color of state law. The only exception

found by the courts is where a private litigant

affirmatively exercises discriminatory peremptory

challenges.

Here, as in most civil cases, the initial

decision whether to sue at all, the

selection of counsel, and any number of

ensuing tactical choices in the course of

discovery and trial may be without the

requisite governmental character to be

deemed state action. That cannot be

said of the exercise of peremptory

challenges, however; when private

litigants participate in the selection of

jurors, they serve an important function

within the government and act with its

substantial assistance. If peremptory

challenges based on race were

permitted, persons could be required by

12

summons to be put at risk of open and

public discrimination as a condition of

their participation in the justice system.

The injury to excluded jurors would be

the direct result of governmental

delegation and participation.

Edmonson v. Leesville Concrete Co., Inc., 500 U.S.

614, 627-28, 111 S. Ct. 2077, 114 L. Ed. 2d 660

(1991). See also Georgia v. McCollum, 505 U.S. 42,

54, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992) (“The

exercise of a peremptory challenge differs

significantly from other actions taken in support of a

defendant’s defense. In exercising a peremptory

challenge, a criminal defendant is wielding the power

to choose a quintessential governmental body”).

Petitioners did not allege any impropriety with

peremptory challenges exercised by State Farm.

Instead, petitioners allege that the trial court’s denial

of petitioners’ own challenges for cause denied them

due process. State Farm took no action in making

petitioners’ challenges for cause, nor did State Farm

have authority to deny them. The state court made

the decision to deny petitioners’ juror challenges.

Petitioners’ reliance on Lugar v. Edmondson

Oil Co., Inc., 457 U.S. 922, 924, 102 S. Ct. 2744, 73 L.

Ed. 2d 482 (1982) is misplaced. In Lugar, the

defendant sought prejudgment attachment under a

procedure created by a Virginia statute. The

procedure allowed a party to seize property by ex

parte petition, without notice to the owner. A state

court clerk issued a writ of attachment, and a county

sheriff executed the writ.

The owner sued the defendant under 42 U.S.C.

§ 1983, alleging the defendant acted jointly with the

state to deprive him of his property without due

13

process of law. This Court held that private use of

unconstitutional state procedures with the help of

state officials constitutes state action for purposes of

the Fourteenth Amendment, and therefore the

challenged conduct was “under color of state law.” To

act under color of state law, the private party must 1)

deprive the plaintiff of a constitutional right through

the exercise of a right or privilege having its source in

state authority; and 2) be appropriately characterized

as a “state actor.” The court noted that a cause of

action alleging violation of a state statute was

insufficient. However, the claim alleged in that case,

that a private party utilized an unconstitutional state

procedure in joint participation with state officials,

did satisfy the two-part test. Lugar, 457 U.S. at 939-

41.

This case is very different. First, State Farm

did not exercise a right or privilege having its source

in state authority. Petitioners alleged they “sued

State Farm for coverage,” and “the judge allowed

fjurors] to stay on the jury despite strenuous

objection and motions by Petitioner’s counsel before

the actual trial began.” (Record 4 — Complaint p. 3)

Petitioners sued State Farm in their choice of forum,

state district court. Petitioners challenged jurors.

The court denied their challenges.

State Farm did not choose to be sued. State

Farm did not make a motion asking the court to seat

biased jurors. Petitioners’ allegation that State Farm

took litigation positions opposing their objections and

motions is insufficient to establish that State Farm

violated their rights, or acted under color of state law.

The complaint failed to state a claim upon which

relief may be granted, and failed to establish

jurisdiction.

14

E. EVEN IF ROOKER-FELDMAN DID NOT APPLY,

THE RESULT WOULD BE THE SAME BECAUSE

PETITIONERS § 1983 CLAIM IS BARRED BY THE

STATUTE OF LIMITATIONS.

Even if the district court had jurisdiction, the

result would be the same because petitioners’ claim

under 42 U.S.C. § 1983 is barred by Washington’s

three-year personal injury statute of limitations. The

jury was selected in the state court action on June 25

and 26, 2001. (Record 24, 30) Judgment was entered

on the verdict on August 2, 2001. (Record 62)

Appellants filed this action on or about April 13,

2006, more than four years later. (Record 99) This

claim is time barred.

The state statute of limitations for personal

injury actions applies to actions for damages under

42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 105

S. Ct. 1938, 85 L. Ed. 2d 254 (1985). Where state law

provides multiple statutes of limitations for personal

injury actions, courts use the general or residual

statute for personal injury actions. Owens v. Okure,

488 U.S. 235, 109 S. Ct. 573, 102 L. Ed. 2d 594

(1989). In Washington, personal injury actions are

governed by a three-year statute of limitations.

WASH. REV. CODE §4.16.080(2); Petcu v. State, 121

Wn. App. 36, 68, 86 P.3d 1234, rev. denied, 152

Wn.2d 1033 (2004).

“Although state law determines the length of

the limitations period, federal law determines when a

civil rights claim accrues.” Morales v. City of Les

Angeles, 214 F.3d 1151, 1153-54 (9% Cir. 2000).

Where the plaintiff alleges that a civil rights

violation caused him to lose a lawsuit, the civil nghts

cause of action accrues on the date judgment was

entered in tkat lawsuit. Jd. at 1154. Since

15

petitioners sued more than three years after entry of

judgment, their claim is time barred.

CONCLUSION

For these reasons, the petition for a writ of

certiorari should be denied.

DATED this 24th day of July, 2008.

Respectfully submitted,

MICHAEL S. ROGERS

Counsel of Record

REED McCLURE

Two UNION SQUARE

601 UNION ST., SUITE 1500

SEATTLE, WA 98101-1363

(206) 292-4900