                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 10 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LAURA BREESER; JOHN CHARLES                      No. 13-16512
BREESER, Jr., wife and husband on
behalf of themselves and on behalf of their      D.C. No. 2:10-cv-01592-JAT
four minor children; A.B, J.B., D.B. M.B.,

              Plaintiffs - Appellants,           MEMORANDUM*

  v.

THE MENTA GROUP, INC., NFP;
SPECIAL EDUCATION SERVICES,
DBA Southwest Education Center;
ELIZABETH ANN CONRAN; RORY
CONRAN, husband and wife; KATHRYN
CARWELL; KENNETH CARWELL,
husband and wife; KIM HUBBLE;
WILLIAM ANDREW HUBBLE, husband
and wife; DOES, John and Jane Does 1-X;
Black and White Corporations 1-X,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted October 23, 2015
                            San Francisco, California

Before: WALLACE, BLACK**, and CLIFTON, Circuit Judges.

      Laura Breeser appeals from the district court’s summary judgment in favor

of Defendants The Menta Group, Inc. NFP and Special Education Services dba

Southwest Education Center, on Breeser’s claim for wrongful termination, brought

under A.R.S. § 23-1501.3(c)(ii). We affirm.

      In Logerquist v. Danforth, 932 P.2d 281 (Ariz. Ct. App. 1996), the Arizona

Court of Appeals held that when a defendant advances a prima facie statute of

limitations defense entitling it to summary judgment, the burden shifts to the

plaintiff to show available, competent evidence that would justify a trial. Id. at 284

(citation omitted). Defendant's motion for summary judgment presented a

sufficient prima facie defense. Defendant produced evidence that Breeser was

terminated on March 1, 2009, while Plaintiff did not initiate her lawsuit until

March 15, 2010. The burden then shifted to Breeser to produce evidence showing

why her cause of action did not accrue on March 1, 2009, the date of termination.

See id.




          **
            The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.

                                          2
      Breeser is correct that under the discovery rule, a claim accrues “when the

plaintiff knew or by the exercise of reasonable diligence should have known of the

defendants' conduct.” Mayer v. Good Samaritan Hosp., 482 P.2d 497, 501 (Ariz.

1971). Breeser, however, had the burden of producing evidence showing the

applicability of the discovery rule. See Logerquist, 932 P.2d at 284. Breeser failed

to meet this burden. Breeser contended in her response to Defendant’s motion for

summary judgment that the wrongful termination claim could not have accrued

until March 16, 2009, when she allegedly discovered that her name had been used

erroneously on a form Defendants filed with the State of Arizona. She not only

failed to provide evidentiary support for this claim, but also failed to explain why

her cause of action could not have accrued until she had allegedly made this

discovery. To the contrary, Breeser acknowledged that long before March 1, 2009,

she had suspected that Defendants had filed applications with the state that

contained incorrect information, and she had stated as much to Defendants. The

information was enough for her claim to accrue by the date of her termination,

March 1, 2009.

      AFFIRMED.




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