NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 31 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL DAVIS, No. 18-36074

Plaintiff-Appellant, D.C. No. 2:17-cv-00849-MJP v.

ZHOU LIANG, MEMORANDUM*

Defendant-Appellee,

EMPIRE FIRE AND MARINE

INSURANCE COMPANY,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding

Submitted December 9, 2019** Seattle, Washington

Before: MCKEOWN and CHRISTEN, Circuit Judges, and HARPOOL,*** District Judge.

* 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). *** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. On June 5, 2014, Zhou Liang, a Chinese national, collided his rental car into

a King County Metro Bus, injuring Michael Davis, a bus passenger. After the

collision, Liang returned to China, and has not since returned to the United States.

On June 1, 2017, only four days before the three-year statute of limitations on the

negligence claim was set to expire, Davis sued Liang for negligence in federal

district court. Davis attempted to serve process on Liang on September 28, 2017,

119 days after he filed his action, by transmitting service documents to the Chinese

Ministry of Justice in accordance with the Hague Convention.

Federal courts sitting in diversity jurisdiction use the forum state’s statute of

limitations for personal injury torts. See Lukovsky v. City of San Francisco, 535

F.3d 1044, 1048 (9th Cir. 2008). RCW 4.16.170 states that for the purpose of

tolling any statute of limitations, an action shall be considered commenced when

either the complaint is filed or when summons is served, whichever occurs first.

When filing occurs before service, service must occur within 90 days of filing for

the lawsuit to be considered “commenced” as of the date of filing for purpose of

the statute of limitations. In cases of foreign service under the Hague Convention,

the date of service is considered to be the date the necessary documents are

transmitted to the foreign authority. Broad v. Mannesmann Anlagenbau, A.G., 10

P.3d 371, 380 (Wash. 2000).

The district court dismissed the case because Davis first attempted to

2 18-36074 transmit the required documents to the Ministry of Justice on September 28, 2017,

119 days after filing his complaint and after June 5, 2017, the day the three-year

statute of limitations expired. Because the first attempt at service of the federal suit

fell outside the 90-day period under RCW 4.16.170, the district court considered

the lawsuit commenced on September 28, and therefore after the statute of

limitations expired, rather than the day the suit was filed.

On appeal, Davis argues that the district court erred by applying RCW

4.16.170 because it conflicts with and is superseded by Fed. R. Civ. P. 4(m). The

panel reviews de novo both the district court’s interpretation and application of the

Federal Rules of Civil Procedure as well as Washington’s statute of limitations.

Riordan v. State Farm Mut. Auto Ins. Co., 589 F.3d 999, 1004 (9th Cir. 2009);

Hooper v. Lockheed Martin Corp., 688 F.3d 1037, 1045 (9th Cir. 2012).

Rule 4(m) states that if a defendant is not served within 90 days of the

complaint’s filing, a court shall dismiss that action without prejudice unless good

cause is shown. However, it also states that this 90-day deadline does not apply to

service in a foreign country. Davis claims Rule 4(m) directly conflicts with and

supersedes RCW 4.16.170 because under Rule 4(m), there is no time limit to effect

service in a foreign country, while RCW 4.16.170 imposes such a time limit. See

Hanna v. Plumer, 380 U.S. 460 (1965).

RCW 4.16.170 and Fed. R. Civ. P. 4(m) do not conflict. The Washington

3 18-36074 statute is not a service-deadline statute. Rather, it establishes when and under what

circumstances the statute of limitations is tolled. It begins with “For the purpose of

tolling any statute of limitations . . .” and ends with “for purposes of tolling the

statute of limitations.” Rule 4(m), on the other hand, is a service-deadline rule.

Under RCW 4.16.170, Washington plaintiffs are not required to serve process

within 90 days of filing—if they do not, however, the statute of limitations will not

be tolled from the date of filing. Rather, in the case of foreign defendants, the

statute of limitations is tolled from the date the required documents are transmitted

to the foreign authorities. RCW 4.16.170 does not conflict with Rule 4(m) and the

district court was correct to apply the state law in this case. The district court was

correct to consider the case commenced after the statute of limitations expired and

to dismiss it on that ground.1

AFFIRMED.

1 Empire Fire’s Motion to File Supplemental Briefing [Doc. No 36] is DENIED as moot.

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