                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 06 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARCUS S GERLACH; SUZANNE L                      No. 12-35888
GERLACH, husband and wife,
                                                 D.C. No. 3:11-cv-05854-BHS
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

CITY OF BAINBRIDGE ISLAND, a
municipal corporation; JOSHUA
MACHEN; DOES, 1-10,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                     Argued and Submitted December 3, 2013
                              Seattle, Washington

Before: TALLMAN and BEA, Circuit Judges, and MURPHY, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Stephen Joseph Murphy, III, District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
      Marcus and Suzanne Gerlach filed suit against the City of Bainbridge Island

(“the City”) and Joseph Machen, an employee of the City, under Wash. Rev. Code

§ 64.40 and 42 U.S.C. § 1983. Plaintiffs alleged that Joseph Machen purposefully

delayed issuance of their buoy permit to extort plaintiffs to hire him as a window

washer. The district court granted defendants’ motion for summary judgment. We

have jurisdiction under 28 U.S.C. § 1291; we affirm and remand for clarification.

1. Section 64.40 authorizes claims for damages incurred only after a final agency

decision has been made. Birnbaum v. Pierce Cnty., 274 P.2d 1070, 1073 (Wash.

App. Ct. 2012). Plaintiffs’ § 64.40 claim fails because the only harms they alleged

occurred before the final agency action of granting plaintiffs a buoy permit. We

therefore affirm the district court’s dismissal of plaintiffs’ claim under § 64.40.

2. The district court did not abuse its discretion in calculating attorneys’ fees under

Wash. Rev. Code § 64.40.020. The district court considered defendants’ attorneys’

calculation of the hours spent on the § 64.40 claim, and the billing rates for each

attorney. The court correctly undertook a lodestar analysis to determine the

reasonableness of the request. Manna Funding, LLC v. Kittitas Cnty., 295 P.3d

1197, 1209 (Wash. App. 2013). Plaintiffs do not support their challenge to the

attorneys’ fees award. Fed. R. App. P. 28(a)(8)(A). We therefore affirm the

district court’s attorneys’ fees award under § 64.40.


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3. Plaintiffs’ 42 U.S.C. § 1983 claim against Machen fails because plaintiffs have

not adduced evidence to prove that Machen caused their alleged injuries. Section

1983 requires plaintiffs to prove causation. Beck v. City of Upland, 527 F.3d 853,

862 (9th Cir. 2008). We therefore affirm the district court’s summary dismissal of

plaintiffs’ substantive due process claim against Machen.

4. Plaintiffs’ § 1983 claim against the City fails because they failed to identify any

legal or factual grounds for holding the city liable. Therefore, we affirm the

district court’s summary dismissal of plaintiffs’ substantive due process claim

against the City.

5. The district court did not abuse its discretion in denying a continuance of the

hearing of the motion of summary judgment because further discovery would not

have affected its judgment. The plaintiffs stated that they wanted more time to

pursue discovery regarding other “illegal conduct by Mr. Machen in abuse of his

authority.” The district court’s reasons for granting defendants’ motion for

summary judgment, however, were not based on Machen’s conduct, and so further

evidence regarding Machen’s alleged corruption would not have affected its ruling.

Therefore, we affirm the district court’s denial of plaintiffs’ motion for a

continuance of summary judgment.




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6. Defendants’ request for sanctions against plaintiffs under Fed. R. App. P. 38 is

procedurally defective because Rule 38 requires a separate motion for fees; a

request made in an appellate brief does not satisfy Rule 38 and must be denied.

Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 828 (9th Cir. 2009). We

therefore deny defendants’ request for sanctions under Fed. R. App. P. 38 for

failure to submit a separately filed motion.

7. We grant defendants’ request for reasonable attorneys’ fees incurred on appeal

in defending plaintiffs’ § 64.40 claim pursuant to § 64.40.020. The determination

of the correct amount of fees on appeal is referred to the court’s special master,

Appellate Commissioner Peter L. Shaw, who shall conduct whatever proceedings

he deems correct, and who shall have authority to enter an order awarding fees.

See 9th Cir. R. 39-1.9. The order is subject to reconsideration by the panel. Id.

8. After the district court granted the defendants’ motion for summary judgment

with regard to the plaintiffs’ claims for § 64.40 and § 1983, it “decline[d] to

exercise supplemental jurisdiction over the Gerlachs’ tortious interference [with

quiet enjoyment] claim and remand[ed] this action to the court in which it was

filed.” The district court then issued two orders denying the plaintiffs’ motion for

reconsideration and granting entry of final judgment, without mentioning the

tortious interference claim in either order. We remand the tortious interference


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claim to the district court to clarify whether it should be remanded to state court or

summarily dismissed.

      We AFFIRM the district court as set forth above, but REMAND only the

tortious interference claim for clarification, and DENY defendants’ request for

attorneys’ fees under Fed. R. App. P. 38. We GRANT fees only as to that portion

of the appeal under Wash. Rev. Code § 64.40.020 and refer computation of the

amount to Commissioner Shaw.




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