Derrick Johnson v. Us Bancorp , 476 F. App'x 148 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DERRICK JOHNSON; AMY MARIE No. 11-35667
JOHNSON,
D.C. No. 2:10-cv-00960-RSM
Plaintiffs - Appellants,
v. MEMORANDUM *
US BANCORP; US BANK NATIONAL
ASSOCIATION, also known as US Bank,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted July 13, 2012
Seattle, Washington
Before: SCHROEDER, KLEINFELD, and M. SMITH, Circuit Judges.
Derrick and Amy Marie Johnson (collectively, the “Johnsons”) appeal the
district court’s dismissal of their diversity action against U.S. Bancorp and its
wholly-owned subsidiary U.S. Bank National Association (collectively, “U.S.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Bank” or the “Bank”), alleging civil conspiracy, negligent supervision, and loss of
consortium as a result of U.S. Bank’s termination of Derrick’s employment. The
Johnsons argue that U.S. Bank conspired with its employees and its attorney
Michael Droke to terminate Derrick’s employment in retaliation for his internal
reports regarding alleged violations of banking laws and regulations. We affirm
the district court’s dismissal of the Johnsons’ amended complaint.
The district court properly dismissed the Johnsons’ civil conspiracy claim
for failure to allege a legally cognizable co-conspirator. See All Star Gas, Inc., v.
Bechard, 998 P.2d 367, 371 (Wash. Ct. App. 2000). A corporation cannot
conspire with its duly recognized agents when they are acting within the scope of
their agency. See Corbit v. J.I. Case Co., 424 P.2d 290, 295 n.3 (Wash. 1967);
Eyak River Packing Co. v. Huglen, 255 P. 123, 126 (Wash. 1927). Here, the
Johnsons in their amended complaint admit that Bank employees were at all times
acting within the scope of their employment. The Johnsons further admit that an
attorney-client relationship existed between the Bank and Michael Droke. See
Herman v. Safeco Ins. Co. of Am., 17 P.3d 631, 633 n.3 (Wash. Ct. App. 2001)
(recognizing that under Washington law “the relation of an attorney to his client is
one of agency” (internal quotation marks omitted) (quoting 7A C.J.S. Attorney &
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Client § 180, at 282 (1980))). Thus neither the Bank’s employees nor its attorney
can serve as legally cognizable co-conspirators.
Because the Bank employees were acting within the scope of their
employment at all times, their claim of negligent supervision too must fail. See
Niece v. Elmview Grp. Home, 929 P.2d 420, 425–26 (Wash. 1997) (a negligent
supervision claim requires that the plaintiff show that the employees acted outside
the scope of employment). As for the Johnsons’ consortium claim, no such claim
can arise “if no tort [was] committed against the impaired spouse.” Conradt v.
Four Star Promotions, Inc., 728 P.2d 617, 621 (Wash. Ct. App. 1986). The
Johnsons argue for the first time on appeal that even if their civil conspiracy and
negligent supervision claims fail, the loss of consortium claim should be reinstated
based on Derrick’s administrative whistle-blower case, currently pending before
the Department of Labor pursuant to 18 U.S.C. § 1514A. We deem this argument
waived for failure to raise it below. See Hillis v. Heineman, 626 F.3d 1014, 1019
(9th Cir. 2010).
AFFIRMED.
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