Murphy v. Wedan

── Murphy v. Wedan ── Court: Court of Appeals for the Ninth Circuit Date: April 09, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES M. MURPHY, No. 24-4717 D.C. No. Plaintiff - Appellant, 3:21-cv-05707-DWC v. MEMORANDUM* RICHARD WILLIAM WEDAN, Defendant - Appellee. Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding Submitted April 9, 2026** Before: GOULD, BENNETT, and BADE, Circuit Judges. Plaintiff Dr. James M. Murphy appeals pro se from the district court’s order granting summary judgment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment, and we review its * 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). denial of a Rule 72(b) motion for abuse of discretion.1 Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (motion for summary judgment); Hunt v. Pliler, 384 F.3d 1118, 1125 (9th Cir. 2004) (Rule 72 motion). We review denial of a Rule 56(d) motion and denial of a request for oral argument for abuse of discretion. Fam. Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008) (Rule 56(f) motion, which was moved to Rule 56(d) in the 2010 amendment to the Rules); Spradlin v. Lear Siegler Mgmt. Servs. Co., 926 F.2d 865, 867 (9th Cir. 1991) (request for oral argument). For the reasons stated below, we affirm. 1. The district court properly granted summary judgment to Defendant Col. Richard William Wedan because Dr. Murphy’s claims are barred by the statute of limitations. The statute of limitations for a personal injury action arising in Washington State is three years. See Wash. Rev. Code (“RCW”) § 4.16.080(2). The actions giving rise to the allegations in Dr. Murphy’s Second Amended Complaint occurred in 2015, and Dr. Murphy did not file this action until August 2021. 2. Col. Wedan did not waive his right to assert an affirmative defense based on the statute of limitations. Dr. Murphy offers no authority for his 1 All references to rules are to the Federal Rules of Civil Procedure, unless otherwise indicated. 2 24-4717 contention that a defendant waives a statute of limitations affirmative defense by making a Rule 12(b) motion to dismiss that does not assert the defense, and for that reason, we could disregard this theory. United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in passing and not supported by citations to the record or to case authority are generally deemed waived.”). “The inclusion of the [statute of limitations] defense in an answer is sufficient to preserve the defense.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 216 F.3d 764, 788 (9th Cir. 2000). And Col. Wedan raised the affirmative defense in his answers both to Dr. Murphy’s First Amended Complaint and to Dr. Murphy’s Second Amended Complaint as required by Rule 8(c)(1). 3. Dr. Murphy contends that pursuant to the “discovery rule”, the limitations period was tolled until Dr. Murphy received a copy of the “Moushon Report” in 2020 because he was not aware of his claims until