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 2022-02

Minka Wallace v. Stephen Holden ( 2022 )


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  •                            NOT FOR PUBLICATION                            FILED
UNITED STATES COURT OF APPEALS                         FEB 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINKA WALLACE,                                   No.   20-35993
Plaintiff-Appellant,             D.C. No. 3:20-cv-05643-BHS
v.
MEMORANDUM*
STEPHEN C. HOLDEN,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted January 19, 2022
Honolulu, Hawaii
Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
Minka Wallace appeals from the district court’s grant of summary judgment
against her on the ground that her personal injury claim against Stephen Holden
was barred by the Washington statute of limitations. Wallace also asks this court
to reverse the order transferring this case from the District of Oregon to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Western District of Washington. Because the facts are known to the parties, we
repeat them only as necessary to explain our decision.
I
Wallace did not commence this personal injury action within three years of
the injury, so her claim is time-barred in Washington. See
    Wash. Rev. Code § 4.16.080
    (2). Washington’s tolling statute does not apply, as Holden was amenable
to service of process and therefore was “within the personam jurisdiction of the
court.” Summerrise v. Stephens,
    454 P.2d 224
    , 228 (Wash. 1969). Nor did a
facially preclusive judgment “remove the responsibility to file a lawsuit within the
statute of limitations.” Petcu v. State,
    86 P.3d 1234
    , 1252 (Wash. Ct. App. 2004).
And Wallace is not entitled to equitable tolling because there is no evidence of
“bad faith, deception, or false assurances” by Holden. Millay v. Cam,
    955 P.2d 791
    , 797 (Wash. 1998).
II
A transfer order is an interlocutory order. Nascimento v. Dummer,
    508 F.3d 905
    , 908 (9th Cir. 2007). Normally, therefore, such orders are not appealable. In
re Kemble,
    776 F.2d 802
    , 806 (9th Cir. 1985). But “[a] necessary corollary to the
final judgment rule is that a party may appeal interlocutory orders after entry of
final judgment because those orders merge into that final judgment.” Am.
Ironworks & Erectors, Inc. v. N. Am. Constr. Corp.,
    248 F.3d 892
    , 897 (9th Cir.
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2001). Because both the District of Oregon and the Western District of
Washington are in the Ninth Circuit, we have jurisdiction to review the transfer
order from the District of Oregon on appeal from the final judgment in the Western
District of Washington. See Posnanski v. Gibney,
    421 F.3d 977
    , 980 (9th Cir.
2005) (“Such transfer orders . . . are reviewable only in the circuit of the transferor
district court.”).
“When no federal statute governs personal jurisdiction, the district court
applies the law of the forum state.” Boschetto v. Hansing,
    539 F.3d 1011
    , 1015
(9th Cir. 2008). The District of Oregon applied controlling Oregon state court
precedent correctly to find that there was no personal jurisdiction over Holden.
See Wallace v. Holden,
    445 P.3d 914
    , 920-22 (Or. Ct. App. 2019), review denied,
    451 P.3d 1005
     (Or. 2019). Wallace has not asserted any other challenge to the
transfer order. See United States v. Depue,
    912 F.3d 1227
    , 1232 (9th Cir. 2019)
(en banc).
AFFIRMED.
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