Aziz Safouane v. Stephen Hassett

FILED
NOT FOR PUBLICATION APR 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AZIZ SAFOUANE; SARAH No. 10-35419
SAFOUANE,
D.C. No. 2:00-cv-00621-JCC
Plaintiffs - Appellants,
v. MEMORANDUM *
STEPHEN HASSETT; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted October 10, 2012 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Aziz and Sarah Safouane (“the Safouanes”) appeal pro se from the district
court’s judgment in their 42 U.S.C. § 1983 action alleging a constitutional
violation and a state law malicious prosecution claim. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1291. We review de novo. Love v. Associated Newspapers, Ltd., 611
F.3d 601, 608 (9th Cir. 2010) (dismissal of a claim for lack of personal
jurisdiction); Tucker v. Baxter Healthcare, 158 F.3d 1046, 1049 (9th Cir. 1998)
(grant of summary judgment based on the statute of limitations); Morrison v. Hall,
261 F.3d 896, 900 (9th Cir. 2001) (grant of summary judgment).
The district court properly dismissed the 42 U.S.C. § 1983 claim against the
foster parents and social workers because the Safouanes failed to effect proper
service of the summons and complaint and the foster parents and social workers
did not waive their defense of lack of personal jurisdiction when they did not raise
the defense during the Safounes’ initial appeal. See Benny v. Pipes, 799 F.2d 489,
492 (9th Cir. 1986) (explaining that actual notice is insufficient to confer personal
jurisdiction over a defendant if service does not substantially comply with Rule 4);
see also Fed. R. Civ. P. 12(g), (h)(1) (describing when defense is waived);
Peterson v. Highland Music, Inc., 140 F.3d 1313, 1319 (9th Cir. 1998) (declining
to find waiver “[i]n the absence of other factors militating in favor of finding of
waiver” when defendants had complied with Rule 12).
The district court properly concluded that the 42 U.S.C. § 1983 claim against
the remaining defendants is time-barred because the Safouanes knew more than
three years before they filed their complaint that their children may have been
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abused in foster care. See Wash. Rev. Code § 4.16.080(2) (three-year statute of
limitations for personal injury claims); Douglas v. Noelle, 567 F.3d 1103, 1109
(9th Cir. 2009) (state law governs statue of limitations period and closely related
questions of tolling for § 1983 suits and a claim accrues when the plaintiff knows
or should know of the injury that is the basis of the cause of action ); Western Ctr.
for Journalism v. Cederquist, 235 F.3d 1153, 1157 (9th Cir. 2000) . The
Safouanes have not alleged a basis for equitably estopping the defendants from
asserting a statute of limitations defense. See Perez v. Garcia, 198 P.3d 539, 545
(Wash. Ct. App. 2009) (equitable tolling terminates when plaintiff “could have
known” of alleged wrong). We reject the Safouanes’ assertion that the district
court prematurely granted summary judgment on the basis of the statute of
limitations.
The district court properly granted summary judgment for the King County
deputy sheriffs on Ms. Safouane’s state-law malicious prosecution claim because
Ms. Safouane failed to raise a genuine dispute of material fact as to whether these
defendants made a full and fair disclosure, in good faith, to the prosecutor. Peasley
v. Puget Sound Tug & Barge Co., 125 P.2d 681, 687-88 (Wash. 1942).
The district court did not abuse its discretion by denying the Safouanes’
motions for reconsideration because the Safouanes failed to establish a basis
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warranting reconsideration. See Sch. Dist. No. 1J, Multnomah Cnty., Or. v.
ACandS, Inc., 5 F.3d 1255, 1262–63 (9th Cir. 1993) (setting forth standard of
review and grounds for reconsideration).
The Safouanes’ remaining contentions are unpersuasive.
AFFIRMED.
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