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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

KEVIN L. HENDRICKSON,

Plaintiff,

v.

THURSTON COUNTY, et al.,

Defendants.

CASE NO. C06-5374BHS

ORDER DENYING

PLAINTIFF’S MOTION TO

RECONSIDER AND

DISMISSING PLAINTIFF’S

STATE LAW CLAIMS

WITHOUT PREJUDICE

This matter comes before the Court on Plaintiff’s Motion to Reconsider (Dkt. 189)

and the parties’ responses to the Court’s order to show cause regarding the remaining

state claims (Dkts. 187 and 188). The Court denies the motion to reconsider and dismisses

Plaintiff’s remaining state claims without prejudice for the reasons stated herein. 

I. MOTION TO RECONSIDER

 On December 10, 2008, the Court issued an order dismissing Plaintiff’s federal

claims (“the Order”). Dkt. 186. On December 22, 2008, Plaintiff filed a motion to

reconsider. Dkt. 189.

Motions for reconsideration are governed by Local Rule CR 7(h), which provides

as follows:

Motions for reconsideration are disfavored. The court will ordinarily deny

such motions in the absence of a showing of manifest error in the prior

ruling or a showing of new facts or legal authority which could not have

been brought to its attention earlier with reasonable diligence. 
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ORDER – 2

Local Rule CR 7(h)(1). Plaintiff seeks reconsideration on the basis of manifest error. Dkt.

189.

As a threshold matter, the Court notes that a motion for reconsideration is not a

substitute for filing a reply on the underlying motion. Plaintiff’s 31-page motion for

reconsideration mainly repeats arguments that the Court already addressed in the Order.

The Court denies Plaintiff’s motion because he fails to make a showing that the

Court committed manifest error in dismissing his claims. Plaintiff first maintains that the

Court erred in dismissing his Fourth Amendment claim against Defendant Romaine for

his impoundment of the vehicles, and contends that “[t]he Court failed to discuss or

analyze Plaintiff’s impoundment/seizure claim against Defendant Romaine under the

Fourth Amendment, and only provided analysis under the Fourteenth Amendment for the

pre-impoundment notice.” Dkt. 189 at 2. Plaintiff also maintains that the Court erred by

dismissing Plaintiff’s claim that Officer Romaine violated his constitutional rights by

failing to provide him with pre-impoundment notice. Id., 25-28. Plaintiff goes so far as to

pose the following question: [w]hat if it was not [Plaintiff], and instead it was a judge,

who had no knowledge that the VIN was incorrectly registered with the DOL, resulting in

the VIN on the license plate being different from the VIN on the truck[?].” Id. at 27. The

Court addressed Plaintiff’s claims relating to the seizure and pre-impoundment notice in

the Order:

Officer Romaine’s impounding of these vehicles did not violate Mr.

Hendrickson’s constitutional rights. Mr. Hendrickson’s arguments focus

primarily on the issue of whether the police are required to provide preimpound notice to an owner of a vehicle when a vehicle is impounded

because of “switched plates.” Mr. Hendrickson mischaracterizes the

impounding of the truck as being based solely on a “traffic infraction.”

While Officer Romaine testified that he had the vehicles impounded based

on “switched plates,” he also testified that ownership of the vehicles had

not been established and that Mr. Hendrickson had already been arrested for

possession of the stolen trailer. Defendants contend that the seizure was

proper because Mr. Hendrickson had already been arrested for possession

of a stolen trailer, and because the VIN affixed to the truck was not

registered to Mr. Hendrickson. Additionally, neither the Pontiac nor the car

hauler came back registered to Mr. Hendrickson.

Mr. Hendrickson has not demonstrated that he was entitled to preimpoundment notice. There is no dispute that, at the time of the impound,
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1

 Plaintiff cites State v. Simpson, 95 Wn.2d 170 (1980), in support of his contention that

the search and seizure violated his constitutional rights. The court in that case found a search of a

vehicle to be unlawful when the officer entered the car without a warrant to search for the VIN

number. In contrast, Officer Romaine observed the VIN from the outside of the truck. Given the

circumstances, this Court concluded that Officer Romaine had probable cause to enter the

vehicle after he determined that Plaintiff was not registered to any of the vehicles based on the

VIN numbers and after he discovered the discrepancy between the VIN of the truck and the VIN

associated with the license plate. Officer Romaine was justified in seizing the property because

ownership had not been established, and because he had probable cause to believe the vehicles

may have been stolen.

Plaintiff also contends that U.S. v. $277,000 U.S. Currency, 941 F.2d 898 (9th Cir. 1991),

supports his argument that this Court erred by concluding that Officer Romaine was entitled to

qualified immunity. The facts of $277,000 U.S. Currency are inapposite to the facts of the instant

case. In $277,000 U.S. Currency, the officers removed a car cover to observe the VIN numbers;

in contrast, Officer Romaine observed the truck VIN number from the outside of the vehicle,

through the front window. Moreover, the officers in $277,000 U.S. Currency did not have

ORDER – 3

none of the actual VIN numbers were registered to Mr. Hendrickson. In

addition, based on the arrest for possession of the stolen trailer, as well

as the discrepancy in the registration of the truck, Officer Romaine had

probable cause to believe that the truck, Pontiac, and car hauler were

not owned by Mr. Hendrickson and may have been stolen. See Brown,

supra [U.S. v. Brown, 535 F.2d 424, 428 (8th Cir. 1976)]. Alternatively,

the officer’s seizure was proper in order to safeguard property that

may have belonged to a third party. See Jamerson, supra [United States

v. Jamerson, 549 F.2d 1263, 1271 (9th Cir. 1977)]. 

Dkt. 186, 21-22 (emphasis added). 

Plaintiff offers no argument or authority that demonstrates that the Court erred by

concluding that Officer Romaine’s seizure was supported by probable cause, nor has

Plaintiff demonstrated that the Court erred by concluding that Officer Romaine’s seizure

did not violate clearly established law. The Court properly concluded that Officer

Romaine was entitled to qualified immunity. 

Plaintiff next argues that the Court erred in concluding that there was no Fourth

Amendment violation based on the search of the truck. Plaintiff again fails to demonstrate

that the Court committed manifest error in concluding that Officer Romaine did not

violate Plaintiff’s constitutional rights by searching the truck, nor has Plaintiff

demonstrated that the Court erred by concluding that the officer is entitled to qualified

immunity.1
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probable cause to believe the vehicles had been stolen. The officers in that case responded to a

report of loud music. Plaintiff, in contrast, had just been arrested for possession of a stolen trailer

and was driving a truck that towed a trailer and a car, none of which were registered to Plaintiff. 

Plaintiff also cites cases that address the issue of when a police officer is required to

provide pre-impoundment notice. None of these cases have held that an officer is required to

provide such notice when the officer has probable cause to believe that the vehicle has been

stolen. See, e.g., Dkt. 188 at 26 (citing Clement v. City of Glendale, 518 F.2d 1090 (9th Cir.

2008)) (due process required pre-impound notice to owner of vehicle, where no probable cause 

existed to believe that the vehicle had been stolen). Again, while Plaintiff would like to isolate

the facts of his case to the officer’s discovery of the discrepancy between the VIN numbers, the

Court considered all of the circumstances surrounding the impoundment. After Plaintiff had been

arrested for possession of a stolen trailer, and the officer discovered that Plaintiff owned none of

the vehicles as reflected by Department of Licensing records, and that the VIN on the truck did

not match the VIN on the license plate, the officer made a reasonable inference that Plaintiff may

have placed a valid license plate on a stolen truck. Certainly, the officer’s reaching of this

conclusion and searching and impounding the truck did not violate any clearly established law.

ORDER – 4

Plaintiff has repeatedly argued in briefings and the instant motion that the search

and seizure of the truck violated his constitutional rights because “switched plates” is

only a “traffic infraction.” But the search and seizure of the vehicle cannot be viewed in

isolation as having been based solely on the fact that the officer discovered that the VIN

number of the truck did not match the VIN number registered to the license plate. In other

words, Officer Romaine did not simply come across the vehicles and decide to search the

truck and impound the vehicles. Rather, Plaintiff had just been arrested for possession of

stolen property that was a licensed vehicle, he had been seen driving the truck which

towed the trailer and Pontiac, none of the vehicles were registered to Plaintiff as

recognized by Washington law, and the VIN number on the truck did not match the VIN

number associated with the license plate when Officer Romaine observed the VIN

number from outside of the vehicle. Under the circumstances in this case, Plaintiff fails to

demonstrate that any clearly established law prohibited Officer Romaine’s search or

seizure of the vehicles. Plaintiff’s arguments were addressed in the Order:

Mr. Hendrickson’s other arguments in support of his motion for

summary judgment are also unavailing. First, Mr. Hendrickson offers no

legal authority that supports his contention that a vehicle must be reported

stolen to give rise to probable cause that a vehicle does not belong to the

individual driving the vehicle. Second, as to Mr. Hendrickson’s claim that
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ORDER – 5

the search for evidence of ownership was unreasonable, it may not have

been sufficient for Officer Romaine to rely solely on the report that indicated

the true owner of this vehicle resided in Texas because there was a

discrepancy between the license plate and the VIN. Officer Romaine acted

properly by searching for evidence to resolve the discrepancy and determine

the lawful owner of the truck. Third, Mr. Hendrickson’s contention that

Officer Romaine should have asked Mr. Hendrickson about the discrepancy

in the VIN and the license plate to resolve the issue of ownership is devoid

of merit. In light of the fact that Mr. Hendrickson had just been arrested for

possession of the stolen trailer, Officer Romaine can hardly be expected to

rely on Mr. Hendrickson’s own statements in order to determine the truck’s

rightful owner. 

Officer Romaine is also entitled to qualified immunity because no

clearly established constitutional right was violated. Even if he conducted

the search without probable cause, or if the community caretaking function

did not apply, the Court concludes that under these circumstances, a

reasonable officer in his position would not have believed the search

violated Mr. Hendrickson’s constitutional rights. 

Dkt. 186, 20-21 (summary judgment order, addressing Plaintiff’s claim that the search of

the truck violated his constitutional rights). 

Plaintiff also states that Officer Romaine admitted that his only basis for the search

and seizure was a statute that makes it a traffic infraction to drive a vehicle that has

switched plates. Dkt. 189 at 7. Even if this were Officer Romaine’s sole subjective basis

for the search, courts evaluate probable cause on an objective basis, and the officer’s

subjective motivation is irrelevant. See Whren v. United States, 517 U.S. 806, 813 (1996)

(probable cause is not dependent on an officer’s subjective motivation). Plaintiff has

failed to demonstrate that under these circumstances, probable cause was lacking. The

Court did not commit manifest error in determining that, under the totality of the

circumstances, there was probable cause to believe that Plaintiff did not own the vehicles

or that the vehicles had been stolen. The Court certainly did not err in concluding that

Officer Romaine is entitled to qualified immunity. 

Finally, to the extent Plaintiff’s counsel’s suggestion that the Court would have

reached a different conclusion had Plaintiff been a judge is worthy of a response, the

Court submits a simple answer. The Court did not error in concluding that Plaintiff’s

federal claims fail, regardless of whether he was a judge, an attorney, or any other

individual.
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ORDER – 6

II. RESPONSES TO ORDER TO SHOW CAUSE

On December 10, 2008, the Court ordered the parties to show cause, if any, why

the Court should maintain jurisdiction over Plaintiff’s remaining state claims. Dkt. 186.

Both parties move the Court to maintain jurisdiction over Plaintiff’s remaining state

claims. Dkts. 187 and 188. 

Plaintiff originally filed this action in this Court. Dkt. 7. The Court has dismissed

all of Plaintiff’s federal claims. Dkt. 186. The Court did not address Defendants’ motion

to dismiss Plaintiff’s negligence claim and his conversion claim. Id. The Court also did

not dismiss Plaintiff’s false imprisonment and false arrest claim as it pertained to the

outstanding warrant. Id., 25-26 (dismissing all claims based on the arrest for possession of

stolen property). 

Under 28 U.S.C. § 1367, a federal court may assume supplemental jurisdiction

over all other claims that are so related to claims in the action within the original

jurisdiction so that they form part of the same case or controversy. The Court may

decline to exercise this supplemental jurisdiction if (1) the claim raises a novel or

complex issue of state law, (2) the claim substantially predominates over the claim or

claims over which the district court has original jurisdiction, (3) the district court has

dismissed all claims over which it has original jurisdiction, or (4) in exceptional

circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. §

1367(c). 

United Mine Workers v. Gibbs, 83 U.S. 715 (1966), first announced the

discretionary doctrine of the district court’s exercise of pendent jurisdiction over state law

claims. Later, in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988), the

Supreme Court held that the district court should “consider and weigh in each case, at

every stage of the litigation, the values of judicial economy, convenience, fairness, and

comity in order to decide whether to exercise jurisdiction over a case brought in that court

involving pendant state law claims.” (Relying on Gibbs, supra). 28 U.S.C. § 1367 now
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ORDER – 7

governs the exercise of supplemental jurisdiction, including ancillary and pendent

jurisdiction, and lists some of the discretionary factors enunciated by Gibbs to guide the

district court in exercising supplemental jurisdiction over state law claims. The Ninth

Circuit clarified the district court’s process of exercising its discretion in Executive

Software v. U.S. Dist. Court, 24 F.3d 1545 (9th Cir. 1994). There, the court held that

once a district court identifies that a factual predicate in a case corresponds to one of the

factors in § 1367(c), the district court must consider “whether remanding the pendent

state claims comports with the underlying objective of ‘most sensibly accommodat[ing]’

the values of ‘economy, convenience, fairness, and comity.’” Id. at 1557 (citations

omitted).

The Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining

state law claims. Dkt. 137 (Defendants’ motion for summary judgment of Plaintiff’s state

law claims). The Court has dismissed all claims under which it has original jurisdiction,

leaving only Plaintiff’s claims for negligence, conversion, and false imprisonment/false

arrest. The Court concludes that the remaining state law claims are more appropriately

addressed in state court. Although this case is in its late stages of litigation, the remaining

claims involve state law and can be most properly decided in the state court. A state court

may determine whether Plaintiff has an ownership interest in any of the vehicles, and

whether any remedies are available.

Defendants also maintain that all claims against Officers Budinich and Romaine

should be dismissed. Defendants contend that Plaintiff failed to allege any state law

claims against Officer Budinich is his response to Defendants’ motion to dismiss the state

law claims. Dkt. 187 at 4 (citing Dkt. 160). Plaintiff appears to have alleged state law

claims against both officers. See Dkt. 60, 7-8 (Plaintiff’s third amended complaint). The

Court did not address Plaintiff’s state law claims in the Order, and a state court may

determine whether these claims should be dismissed. 
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ORDER – 8

Defendants also maintain that the because the Court determined that Officer

Romaine “was justified in impounding the vehicles,” the negligence and conversion

claims should be dismissed. A state court can also address this issue. 

The Court dismisses Plaintiff’s state law claims without prejudice so that he may

file these claims in state court.

III. ORDER

Therefore, it is hereby

ORDERED that Defendant’s Motion to Reconsider (Dkt. 189) is DENIED. It is

further ORDERED that the Court DECLINES to exercise supplemental jurisdiction over

Plaintiffs’ remaining state law claims. Plaintiff’s remaining state law claims are

DISMISSED WITHOUT PREJUDICE.

DATED this 30th day of December, 2008. 

A 

BENJAMIN H. SETTLE

United States District Judge