Derwin Sims, Sr. v. John Hauser ( 2010 )

FILED
NOT FOR PUBLICATION MAR 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DERWIN SIMS, Sr.; DAVID L. No. 09-15484
WEBBER,
D.C. No. 2:07-cv-02517-GMS
Plaintiffs - Appellants,
v. MEMORANDUM *
JOHN P. HAUSER; ADA HAUSER,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted March 11, 2010
San Francisco, California
Before: REINHARDT and BYBEE, Circuit Judges, and GWIN, ** District Judge.
Appellants Sims and Webber appeal the district court’s grant of summary
judgment to the Hausers. We affirm. On December 12, 2007, Appellants brought
suit in the United States District Court for the District of Arizona to enforce their
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
Arkansas judgments rendered in May and July 2003 against the Hausers. Arizona
has a four-year statute of limitations to enforce a judgment rendered outside the
state. See A RIZ. R EV. S TAT. A NN. § 12-544.
Appellants argue that Arizona Revised Statute § 12-501 tolled the statute of
limitations until the Hausers moved to Arizona in 2004. Section 12-501 tolls the
statute of limitations during the time of a person’s absence “[w]hen a person
against whom there is a cause of action is without the state” and subsequently
“return[s] to the state.” A RIZ. R EV. S TAT. A NN. § 12-501. Appellants’
interpretation of § 12-501 fails to account for Arizona Revised Statute § 12-507,
which provides that if a person moves to the state, the four-year statute of
limitations will not apply to bar a claim until the person “has resided in [Arizona]
one year, unless barred at the time of his removal to this state by the laws of the
state or country from which he migrated.” In Bailey v. Superior Court, 694 P.2d
324 (Ariz. Ct. App. 1985), the court rejected the argument that the four-year statute
of limitations is tolled under § 12-501 until a defendant moves to Arizona. Id at
328. Rather, the court determined that when a defendant moves to Arizona, Ҥ 12-
507 is the applicable tolling statute.” Id; see also Monroe v. Wood, 724 P.2d 30,
32 (Ariz. 1986) (“[Section 12-507] is designed to accommodate situations wherein
a non-resident moves to Arizona.”). Appellants’ argument that their case should be
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distinguished from Bailey is not persuasive. Appellants’ judgments against the
Hausers became enforceable in May and July 2003, and under the Arizona statute
of limitations, Appellants could enforce the judgments in Arizona until May and
July 2007, respectively. Appellants brought suit several months after the statute of
limitations had run, at which time the Hausers had been in Arizona for more than
one year. Thus, the suit was barred by § 12-507.
Appellants’ argument that the Arizona statute of limitations violates the
Equal Protection Clause of the United States Constitution is also without merit.
AFFIRMED.
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