                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 10 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DIANE RIORDAN; THOMAS J.                         No. 11-35901
RIORDAN,
                                                 D.C. No. 2:11-cv-01207-RSL
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

POWERS FASTENERS INC., a foreign
corporation,

              Defendant - Appellee.



DIANE RIORDAN; THOMAS J.                         No. 11-36003
RIORDAN,
                                                 D.C. No. 2:11-cv-01207-RSL
              Plaintiffs - Appellees,

  v.

POWERS FASTENERS INC., a foreign
corporation,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington

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


        **
             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
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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