Sheela Ursal v. Amzn

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2021
• Docket: 20-35537
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SHEELA URSAL, No. 20-35537

Plaintiff-Appellant, D.C. No. 2:19-cv-01701-BJR

v. MEMORANDUM* AMAZON.COM, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding

Submitted December 14, 2021**

Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.

Sheela Ursal appeals pro se from the district court’s judgment dismissing her

diversity action alleging Washington state law claims arising from her

employment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under Federal Rule of Civil Procedure 12(b)(6) on the basis of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). applicable statute of limitations. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969,

973 (9th Cir. 2004). We affirm.

The district court properly dismissed Ursal’s action as time-barred because

Ursal failed to serve defendant within 90 days of the date of filing her complaint,

and thus her action was not deemed commenced for purposes of tolling the statutes

of limitations. See Wash. Rev. Code § 4.16.170 (if service is not made within

ninety days of the date of filing the complaint, “the action shall be deemed to not

have been commenced for purposes of tolling the statute of limitations”); O’Neill

v. Farmers Inc. Co. of Wash., 125 P.3d 134, 137 (Wash. Ct. App. 2004)

(explaining that “Washington courts have repeatedly held that the filing of a

complaint does not constitute the commencement of an action for the purposes of

tolling the statute of limitations,” and “[i]t is still necessary for the plaintiff to serve

a defendant within 90 days of the date of filing in order for the commencement to

be complete”); Washington v. Boeing Co., 19 P.3d 1041, 1045, 1050 (Wash. Ct.

App. 2000) (three-year statute of limitations for claims brought under Washington

Revised Code chapter 49.60 and for negligent infliction of emotional distress).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Ursal’s motion to supplement the record on appeal is denied.

AFFIRMED.

2 20-35537