NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA ANDERSON and THOMAS 

ANDERSON, 

Plaintiffs-Appellants, 

 v. 

STATE FARM MUTUAL AUTOMOBILE 

INSURANCE COMPANY, 

Defendant-Appellee.

No. 15-35981 

D.C. No. 3:15-cv-05159-RBL 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted November 7, 2018

Seattle, Washington

Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON,** District 

Judge.

Patricia Anderson and Thomas Anderson appeal five rulings by the district 

court: the denial of their motion to remand; the grant of summary judgment in 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Susan R. Bolton, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

MAR 8 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

favor of State Farm; the denial of their request for additional discovery; the 

imposition of pre-filing requirements; and the award of costs to State Farm.

1

 The 

parties are familiar with the facts, so we do not recite them here. We have 

jurisdiction under 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand 

for further proceedings.

We review de novo the district court’s grant of summary judgment and can 

affirm on any ground supported by the record. Campidoglio LLC v. Wells Fargo 

& Co., 870 F.3d 963, 973 (9th Cir. 2017). We review for abuse of discretion the 

denial of additional discovery, imposition of pre-filing requirements, and award of 

costs. Swoger v. Rare Coin Wholesalers, 803 F.3d 1045, 1047 (9th Cir. 2015); 

Ringgold-Lockhart v. Cty. of L.A., 761 F.3d 1057, 1062 (9th Cir. 2014); Draper v. 

Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016).

1. The district court properly granted summary judgment. Patricia’s 

noncooperation forecloses all but the Andersons’ absolute liability claim. Patricia 

“substantially and materially” breached her duty to cooperate by failing to appear 

for trial and permitting default judgment to enter in Anderson VII. Staples v. 

Allstate Ins. Co., 295 P.3d 201, 205 (Wash. 2013). Prejudice is clear from the 

record, because State Farm’s chosen counsel would have raised a meritorious 

 

1 We address the first issue—whether the district court properly denied the 

Andersons’ motion to remand—in an opinion filed contemporaneously with this 

memorandum disposition.
3 

statute of limitations defense. The record demonstrates as a matter of law that the 

defense would have succeeded because (1) the claims in Anderson VII arose from 

and accrued coincident with the 1998 accident; (2) a two-year statute of limitations 

applies (regardless whether Oregon or Nevada law applies), Or. Rev. Stat. 

§ 12.110(1); Nev. Rev. Stat. § 11.190(4)(e); (3) a decade passed between the 

accident and the date Thomas filed Anderson VII, during which more than three 

years passed with no pending lawsuit that could have tolled the statute of 

limitations; (4) even if Oregon’s 180-day savings statute applies, it expired during 

each of the periods between lawsuits and cannot be invoked successively, Or. Rev.

Stat. § 12.220; and (5) the Andersons have not advanced or factually supported any 

other theory of tolling.

Because Patricia breached the noncooperation provision and State Farm’s 

counsel “would have materially affected the outcome . . . as to liability,” Mut. of 

Enumclaw Ins. Co. v. USF Ins. Co., 191 P.3d 866, 878 (Wash. 2008), the 

Andersons are “contractually barred from bringing suit under the policy.” Staples, 

295 P.3d at 205. With the exception of the absolute liability claim, all of the 

Andersons’ claims, as characterized in their complaint, rest on State Farm’s 

contractual duties under the policy (principally, the duties to defend and 

indemnify). Patricia’s noncooperation releases State Farm from those obligations

and forecloses the claims. Cf. St. Paul Fire & Marine Ins. Co. v. Onvia, Inc., 196 
4 

P.3d 664, 670 (Wash. 2008) (holding that a plaintiff may allege “a cause of action 

for bad faith claims-handling in a third-party context, which is not dependent on 

whether the insurer has breached its duty to defend, settle, or indemnify”). Finally, 

State Farm made every effort to provide Patricia with counsel, so it is not estopped 

from asserting a noncooperation defense. Cf. Truck Ins. Exch. v. Vanport Homes, 

Inc., 58 P.3d 276, 281 (Wash. 2002) (“[A]n insurer that, in bad faith, refuses or 

fails to defend is estopped from denying coverage.”).

Patricia’s noncooperation does not preclude the Andersons’ absolute liability

claim, see Tibbs v. Johnson, 632 P.2d 904, 907 (Wash. Ct. App. 1981), but the 

claim is untimely. It accrued when the accident occurred in 1998, 

RCW 46.29.490(6)(a), and the statute of limitations expired well before the 

Andersons filed this lawsuit in 2015, Rones v. Safeco Ins. Co., 835 P.2d 1036, 

1038–39 (Wash. 1992).

2. The district court did not abuse its discretion by denying further 

discovery and a continuance of summary judgment proceedings. The Andersons 

made no showing—nor does the record suggest—why the broad additional 

discovery they requested was “essential to oppose summary judgment” on grounds 

such as the statute of limitations, noncooperation, and preclusion. Family Home & 

Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008).

3. The district court did not follow the requisite process to impose
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pre-filing requirements on the Andersons. See Ringgold-Lockhart, 761 F.3d at 

1061–67; De Long v. Hennessey, 912 F.2d 1144, 1146–48 (9th Cir. 1990). We 

therefore vacate the vexatious litigant order and remand for the district court to

properly support its determination (if it reimposes pre-filing requirements).

4. We also vacate the district court’s award of costs. The district court 

incorrectly reasoned that it could not consider the Andersons’ “limited financial 

resources” and had “no discretion but to allow costs to the prevailing party.” 

Although Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920 presume

costs will be awarded to the prevailing party, the district court may decline to 

award costs. Draper, 836 F.3d at 1087. Among the permissible considerations are 

“the plaintiff’s limited financial resources” and “the economic disparity between 

the parties.” Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247–48 

(9th Cir. 2014). We vacate the award of costs and remand for the district court to 

consider the legal standard and appropriate considerations with respect to the costs 

determination.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Each party shall bear its own costs on appeal.