Minka Wallace v. Stephen Holden

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2022
• Docket: 20-35993
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

2 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.