                                                                             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                            NOT FOR PUBLICATION                               AUG 21 2012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 &




                                           2
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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