Thomas Riordan v. Powers Fasteners Inc.

489 F. App'x 191

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2012
• Docket: 11-35901, 11-36003
• Status: Unpublished

Opinion

MEMORANDUM ***

The district court’s order to dismiss is affirmed. The plaintiffs failed to follow the statutory requirements for personal service under Wash. Rev.Code § 4.28.080(9).

When the plaintiffs’ process server arrived at the defendant’s facility after business hours, he served a maintenance supervisor who had stayed late to solve a power failure. Under no construction of the statute can an employee with such limited responsibility qualify as a “managing agent.” See Crose v. Volkswagenwerk Aktiengesellschaft, 88 Wash.2d 50, 58-59, 558 P.2d 764 (1977). The plaintiffs failed to serve any of the persons enumerated in the statute. See Witt v. Port of Olympia, 126 Wash.App. 752, 757-58, 109 P.3d 489 (2005).

We need not consider whether Washington would apply a theory of apparent authority to personal service because the defendant, the supposed principal, did nothing to create a reasonable belief that the maintenance supervisor had any representative authority. See Estep v. Hamilton, 148 Wash.App. 246, 258-59, 201 P.3d 331 (2008).

The district court’s denial of statutory attorneys’ fees is also affirmed. There was no “personal service” under Wash. Rev.Code § 4.28.080. Therefore, the defendant could not have been “personally served,” a predicate for attorneys’ fees under § 4.28.185(5). See Ralph’s Concrete Pumping, Inc. v. Concord Concrete Pumps, Inc., 154 Wash.App. 581, 591-92, 225 P.3d 1035 (2010).

AFFIRMED.

*** Tjjjg disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.