Diane Riordan; Thomas J. Riordan v. Powers Fasteners Inc., a foreign corporation

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIANE RIORDAN; THOMAS J.
RIORDAN,
Plaintiffs - Appellants,
v.
POWERS FASTENERS INC., a foreign
corporation,
Defendant - Appellee.
No. 11-35901
D.C. No. 2:11-cv-01207-RSL
MEMORANDUM*
DIANE RIORDAN; THOMAS J.
RIORDAN,
Plaintiffs - Appellees,
v.
POWERS FASTENERS INC., a foreign
corporation,
Defendant - Appellant.
No. 11-36003
D.C. No. 2:11-cv-01207-RSL
Appeal from the United States District Court
for the Western District of Washington
FILED
DEC 10 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2
Robert S. Lasnik, District Judge, Presiding
Submitted December 6, 2012**
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.***
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

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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.

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