Aaron Hahn v. Doug Waddington ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 05 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
AARON HAHN, No. 15-35091
Plaintiff - Appellant, D.C. No. CV-14-5047-RJB
v.
MEMORANDUM*
DOUG WADDINGTON et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted May 11, 2017
Pasadena, California
Before: O’SCANNLAIN and OWENS, Circuit Judges and CHRISTENSEN,**
Chief District Judge.
Plaintiff Aaron Hahn appeals from the district court’s dismissal of his 42
U.S.C. § 1983 claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
reverse and remand. As the parties are familiar with the facts, we do not recount
them here.
The district court erred when it dismissed Hahn’s § 1983 claim as untimely
as a matter of law. Although the complaint was filed over three years after Hahn’s
alleged injury, see Wash. Rev. Code § 4.16.080(2) (2015), Washington law
mandates equitable tolling when, as here, “justice requires.” See Millay v. Cam,
955 P.2d 791, 797 (Wash. 1998) (en banc); see also In re Pers. Restraint of Carter,
263 P.3d 1241, 1248–49 (Wash. 2011) (en banc) (adopting the actual innocence
doctrine). Hahn’s complaint was untimely through no fault of his own. Hahn
timely and appropriately filed in the Eastern District of Washington; after the
Eastern District dismissed Hahn’s claims against residents of the district, that court
erred by dismissing instead of transferring venue to the Western District of
Washington, where the sole remaining defendants resided. See Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 466–67 (1962); see also Burnett v. N.Y. Cent. R.R. Co., 380
U.S. 424, 430 n.7 (1965). By the time Hahn received notice of the dismissal, the
statute of limitations had expired.
Under the particular circumstances of this case, equitable tolling is
consistent with the policies underlying § 1983, and it is not inconsistent with those
served by Washington’s statute of limitations. See Millay, 955 P.2d at 797 (“In
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Washington equitable tolling is appropriate when consistent with both the purpose
of the statute providing the cause of action and the purpose of the statute of
limitations.”). Strict adherence to the statute of limitations in the face of
procedural unfairness cannot be reconciled with § 1983, which exists to promote
“compensation of persons whose civil rights have been violated, and prevention of
the abuse of state power.” Burnett v. Grattan, 468 U.S. 42, 53 (1984); see also Bd.
of Regents of Univ. of N.Y. v. Tomanio, 446 U.S. 478, 488 (1980). Moreover, the
purposes underlying the statute of limitations—finality and protection against stale
and unverifiable claims—will not be frustrated by allowing equitable tolling here.
See Kittinger v. Boeing Co., 585 P.2d 812, 814 (Wash. Ct. App. 1978). The
defendants were aware of Hahn’s claim within the statutory time frame, when
Hahn first filed in the Eastern District of Washington. Under Washington law,
justice requires tolling, but the remedy is modest—Hahn will simply be placed in
the position he would have been in had the Eastern District appropriately
transferred his claim.
Thus, Hahn is entitled to equitable tolling under Washington law only if he
was diligent in pursuing this action in the Western District of Washington after
dismissal. See, e.g., Millay, 955 P.2d at 797–98; Douchette v. Bethel Sch. Dist. No.
403, 818 P.2d 1362, 1365 (Wash. 1991) (en banc). A dispute of fact remains as to
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Hahn’s diligence, which cannot be resolved on appeal. See Spitsyn v. Moore, 345
F.3d 796, 802 (9th Cir. 2003). The issue of Hahn’s diligence, along with
Defendants’ other arguments in favor of dismissal, can appropriately be resolved
by the district court on remand.
REVERSED AND REMANDED.
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Hahn v. Waddington, No. 15-35091 FILED
O’SCANNLAIN, Circuit Judge, dissenting: JUN 5 2017
MOLLY C. DWYER, CLERK
I respectfully dissent from the memorandum disposition becauseU.S.I disagree
COURT OF APPEALS
with its characterization of Washington law.
I
The majority asserts that “Washington law mandates equitable tolling when,
as here, ‘justice requires.’” Majority at 2. However, Washington’s highest court
has repeatedly emphasized that “equitable tolling is allowed when justice requires
and when the predicates for equitable tolling are met. The predicates . . . [are] bad
faith, deception, or false assurances by the defendant and the exercise of diligence
by the plaintiff.” In re Bonds, 165 Wash. 2d 135, 141 (2008) (en banc) (emphasis
added); see also In re Haghighi, 178 Wash. 2d 435, 447 (2013) (en banc)
(“[T]raditionally we have allowed equitable tolling when justice requires its
application and when the predicates of bad faith, deception, or false assurances
are met, and where the petitioner has exercised diligence in pursuing his or her
rights.”) (emphasis added); Douchette v. Bethel School Dist. No. 403, 117 Wash.
2d 805, 812 (1991) (en banc) (“In the absence of bad faith on the part of the
defendant and reasonable diligence on the part of the plaintiff, equity cannot be
invoked.”) (emphasis added).
Washington precedent may be read to leave open the possibility that bad
faith, deception, or false assurances by a third party—as opposed to by
defendants—might satisfy the predicate rule. Specifically, in In re Bonds, the
court characterizes the predicate rule as “mak[ing] equitable tolling available only
in instances where petitioner missed the filing deadline due to another’s
malfeasance.” Id. (emphasis added). Nevertheless, it remains clear that bad faith
rather than mere negligence is necessary for equitably tolling to apply.
II
Hahn raises no allegation that the Eastern District of Washington acted
maliciously or in bad faith when it dismissed his claims against certain defendants
for improper venue. Rather, he asserts that the court acted in error. Such does not
constitute adequate grounds for equitable tolling under Washington’s predicate
rule.
III
“[F]ailure to comply with the [Washington] statute of limitations, therefore,
preclude[s] maintenance of this action . . . [because Washington’s] tolling rule is
[not] ‘inconsistent’ with the policies underlying § 1983.” Bd. of Regents of Univ.
of N.Y. v. Tomanio, 446 U.S. 478, 487 (1980).
Like the New York tolling rule at issue in Tomanio, Washington’s rule is
motivated by “policies of repose [which] cannot be said to be disfavored in federal
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law.” Id. at 488. Furthermore, “[n]either [deterrence nor compensation, the
principal policies embodied in § 1983,] is significantly affected by this rule of
limitations since plaintiffs can still readily enforce their claims, thereby recovering
compensation and fostering deterrence, simply by [filing a direct appeal that
challenges a district court’s alleged error].” Id. See generally In re Hall,
Bayoutree Assoc., 939 F.2d 802, 805 (9th Cir. 1991) (“We review a determination
of whether to transfer or dismiss for abuse of discretion.”). Hahn opted not to take
advantage of such opportunity to recover compensation and foster deterrence by
filing an appeal, but it was readily available to him nonetheless.
IV
Because I see no reason to displace a longstanding state rule in favor of an
ad hoc federal one, I would affirm the judgment of the district court.
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