author: W. FLETCHER, Circuit Judge:

text:
    Michael H. RESH, On Behalf of Himself and All Others Similarly Situated; William Schoenke; Heroca Holding, B.V.; Ninella Beheer, B.V., Plaintiffs-Appellants, v. CHINA AGRITECH, INC.; Yu Chang, Company’s CEO, President, Secretary, and Chairman of the Board; Yau-Sing Tang, aka Gareth Tang, Company’s Chief Financial Officer; Gene Michael Bennett, Director of CAGC; Xiao Rong Teng, Director of CAGC; Ming Fang Zhu; Lun Zhang DaI, Director of CAGC; Charles Law, aka Charles C. Law, aka Charles Chien-Lee Law, aka Charles Chien-Lee Loh, aka Chien-Lee C. Loh, Director of CAGC; Zheng Wang, Director of CAGC, Defendants-Appellees.

      No. 15-55432
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 5, 2016, Pasadena, California
    Filed May 24, 2017
    Matthew M. Guiney (argued), Wolf Hal-denstein Adler Freeman & Herz LLP, New York, New York; Betsy C. Manifold, Francis M. Gregorek, Rachele R. Rickert, and Marisa C. Livesay, Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, California; David A.P. Brower, Brower Pi-ven, New York, New York; for Plaintiffs-Appellants.
    Seth Aronson (argued), Brittany Rogers, and Michelle C. Leu, O’Melveny & Myers LLP, Los Angeles, California; Abby F. Rudzin, O’Melveny & Myers LLP, New York, New York; for Defendants-Appel-lees.
    Before: STEPHEN REINHARDT, WILLIAM A. FLETCHER, and RICHARD A. PAEZ, Circuit Judges.
   OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs bring a would-be class action alleging that China Agritech, Inc. (“China Agritech”) and its managers and directors violated the Securities Exchange Act of 1934 (“Exchange Act”). Plaintiffs were unnamed plaintiffs in two earlier would-be class actions against many of the same defendants based on the same underlying events. Class action certification was denied in both cases. Under American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the statute of limitations was tolled during the pendency of these two suits for plaintiffs’ individual claims. There is thus no time bar preventing plaintiffs from bringing the present suit as joined individual claims rather than as a class action. The question before us is whether plaintiffs are time-barred from pursuing their suit as a class action.

For the reasons that follow, we hold that plaintiffs are not time-barred from bringing a class action.

I. Background

China Agritech is a holding company incorporated in Delaware with its principal place of business in Beijing, China. The company claims to operate through various subsidiaries that manufacture and sell organic compound fertilizers and related products to farmers in twenty-eight Chinese provinces. China Agritech began listing its shares on the NASDAQ Stock Exchange in 2005. In a 2009 filing with the U.S. Securities and Exchange Commission (“SEC”), China Agritech reported a net revenue of $76 million, which was triple the $25 million in revenue it reported for 2005.

On February 3, 2011, LM Research, a market research company, published a report entitled “China Agritech: A Scam” (“LM Report”). The report, written by individuals who held a short position in China Agritech stock, asserted that China Agritech was “not a currently functioning business that [was] manufacturing products,” but instead was “simply a vehicle for transferring shareholder wealth from outside investors into the pockets of the founders and inside management.” Alleging idle factories, minimal investments, and fictitious contracts, the report concluded that China Agritech had “grossly inflated its revenue, failed to account for tens of millions of investor dollars, and [had] virtually no product in the market.” Upon release of the LM Report, China Agri-tech’s shares declined from $10.78 per share on February 2, 2011, to $9.85 per share on February 3, 2011.

China Agritech denied the allegations in an eight-page letter to shareholders. On February 15, 2011, Bronte Capital, a hedge fund that also held a short position in China Agritech, responded to China Agritech’s letter in an article sarcastically titled, “China Agritech: China’s amazing productivity levels” (“BC Article”). The BC Article contended that photos released by China Agritech in its letter did not show the most basic equipment required for operations of the magnitude that China Agri-tech claimed. For example, the pictures showed 40 kg fertilizer bags being moved manually by individual human laborers rather than with forklifts, calling into question how a factory reported to manufacture 100,000 tons of granular fertilizer annually could possibly operate as depicted. China Agritech’s stock value declined to $7.44 per share the next day.

On March 13, 2011, China Agritech announced the formation of a Special Committee of its Board of Directors to investigate the allegations of fraud. The next day, China Agritech dismissed its independent auditor, Ernst & Young Hua Ming (“E&Y”), and publicly disclosed that E&Y had insisted, in December 2010, that the board commence an investigation of accounting problems it had previously identified. Also on March 14, 2011, NASDAQ halted trading in China Agritech stock and initiated delisting proceedings. On October 17, 2012, the SEC issued an enforcement order revoking the registration of China Agritech stock.

II. Procedural History

A. The Dean Action

On February 11, 2011, Theodore Dean, on behalf of himself and all others similarly situated, filed a would-be class action against China Agritech and several of its managers and directors. See Dean v. China Agritech, Inc., Case No. 2:11-cv-1331-RGK-PJW, 2011 WL 607174 (C.D. Cal.) (the “Dean Action”). Dean alleged that China Agriteeh had materially misstated its net revenue and income for the third quarter in 2009 on its SEC Form 10-Q filing, and had materially misstated its net revenue and income for fiscal years 2008 and 2009 in its 2009 SEC Form 10-K filing. The complaint was filed eight days after release of the LM Report. The case was assigned to Judge Klausner in the Central District of California.

On the same day that the Dean Action was filed, Dean’s counsel notified China Agritech shareholders of the class action through two global media platforms, Business Wire and GlobeNewswire, inviting shareholders to come forward and serve as lead plaintiff. He repeated the notification a week later. See 15 U.S.C. § 78u-4(a)(3)(A)(i). On April 12, 2011, pursuant to § 21D(a)(3)(B) of the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4(a)(3)(B)(iii)(D, six shareholders sought appointment as lead plaintiff and approval of lead counsel. On May 16, 2011, the district court denied without prejudice these motions as premature.

On June 22, 2011, Dean filed an Amended Complaint with four additional named plaintiffs and two additional defendants. The amended Dean Action alleged claims for violations of: (1) Section 10(b) of the Exchange Act and SEC Rule 10b-5 by China Agritech and all individual defendants; (2) Section 20(a) of the Exchange Act by the individual defendants; (3) Section 11 of the Securities Act of 1933 (“Securities Act”) by all defendants; and (4) Section 15 of the Securities Act by the individual defendants. On October 27, 2011, the district court granted China Agritech’s motion to dismiss the Dean plaintiffs’ Securities Act claims but denied its motion to dismiss the Exchange Act claims.

On January 6, 2012, the Dean plaintiffs moved for class certification on behalf of all persons or entities that had acquired China Agritech stock between November 12, 2009 and March 11, 2011. On May 3, 2012, the district court denied their motion. The court concluded that although the Dean plaintiffs had satisfied all four requirements of Rule 23(a), they failed to establish the predominance requirement of Rule 23(b)(3). Reliance is a required element for Section 10(b) securities fraud cases. The district court found that individual issues predominated because the Dean plaintiffs had failed to establish a fraud-on-the-market presumption of reliance. A fraud-on-the-market theory requires a showing of market efficiency, which, in the view of the district court, plaintiffs had not made. The court therefore held that plaintiffs had to establish individualized reliance to support their claims.

The Dean plaintiffs appealed the denial of certification under Rule 23(f). On August 8, 2012, we affirmed. See Dean v. China Agritech, Inc., Case No. 12-80120 (9th Cir.), Dkt. No. 5. The Dean plaintiffs continued litigating their cases as individuals. They settled their individual claims on September 14, 2012. Based on the settlement, their individual claims were dismissed with prejudice on September 20, 2012.

B. The Smyth Action

On October 4, 2012, three weeks after the Dean Action settled, Kevin Smyth filed an almost identical class-action complaint on behalf of the same would-be class against China Agritech in federal District Court for the District of Delaware. See Smyth v. Chang, Case No. 1:12-cv-01262-RGA, 2012 WL 4963062 (D. Del.) (the “Smyth Action”). The Smyth and Dean Action complaints differed only in that the Smyth Action alleged solely Exchange Act violations and did not name several of the defendants that had been named in the Dean Action. The Smyth Action was filed one year and eight months after the LM Report was published.

On December 7, 2012, following notification of the Smyth Action on Business Wire, pursuant to the PSLRA, eight shareholders sought appointment as lead plaintiff and approval of their selection of lead counsel. The Smyth Action was subsequently transferred to the Central District of California, where it was deemed related to the Dean Action and assigned to Judge Klausner (Case No. 2:13-cv-3008-RGK-PJW (C.D. Cal.)). On July 18, 2013, plaintiffs in the Smyth Action filed an amended complaint with several additional named plaintiffs. On August 5, 2013, the Smyth plaintiffs moved for class certification.

On September 26, 2013, the district court denied the motion. The court found that the Smyth plaintiffs’ personal claims failed the typicality requirement of Rule 23(a)(3) because their prior relationship with named plaintiffs in the Dean Action subjected them to a claim preclusion defense that was not available against unnamed class members. The court further held that the Smyth plaintiffs and their counsel failed to meet the adequate representation requirement of Rule 23(a)(4). The court noted that plaintiffs had failed to modify their lead plaintiff certifications that had been signed twenty-nine months earlier in connection with the Dean Action, and had served only one defendant ten months after filing Smyth.

On January 8, 2014, the parties to the Smyth Action agreed to dismiss the action with prejudice as to the named plaintiffs.

C. The Resh Action

On June 30, 2014, Michael Resh filed a would-be class action against China Agri-tech and several individual defendants (the “Resh Action”). On September 4, 2014, Resh filed an amended complaint with several additional named plaintiffs. The Resh plaintiffs alleged violations of Sections 10(b) and 20(a) of the Exchange Act based on the same facts and circumstances, and on behalf of the same would-be class, as in the Dean and Smyth Actions. The case was assigned, like the others, to Judge Klausner.

On September 3, 2014, the CAGC Investor Group, comprised of investors in China Agritech—William Schoenke, Heroca Holding B.V., and Ninella Beheer B.V.— filed a motion for appointment as lead plaintiff and for approval of its selection of counsel for the proposed class. On September 22, 2014, China Agritech and one of the individual defendants, Charles Law, filed motions to dismiss the complaint on the theory that the Resh plaintiffs’ would-be class action was time-barred under the Exchange Act’s two-year statute of limitations. On October 17, 2014, the district court denied without prejudice the CAGC Investor Group’s motion, deferring consideration until consideration ,of class certification (“October 2014 Order”).

On December 1, 2014, the district court granted China Agritech’s and Defendant Law’s motions to dismiss without leave to amend (“December 2014 Order”). Plaintiffs had argued that their would-be class action was timely because American Pipe tolled the statute of limitations during the pen-dency of the Dean and the Smyth actions. With tolling, 804 of the 1243 days that had elapsed since the release of the LM Report were subtracted, meaning that only 439 days counted towards the two-year statute of limitations. The district court disagreed. It concluded that while the Supreme Court in American Pipe and Crown, Cork & Seal held that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class, and that a class member may therefore file a separate individual action prior to the expiration of his or her own limitations period, the Supreme Court had not yet determined whether American Pipe allowed tolling for an entirely new class , action based upon a substantially identical class. Relying principally on Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir. 1987), and Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en banc), the district court concluded that the statute of limitations was tolled for the individual claims of the named plaintiffs in the Resh Action, but was not tolled for plaintiffs’ would-be class action. In the view of the district court, a contrary ruling “would allow tolling to extend indefinitely as class action plaintiffs repeatedly attempt to demonstrate suitability for class certification on the basis of different expert testimony and/or other evidence.”

On December 19, 2014, the Resh plaintiffs sought reconsideration, arguing that the court had denied class certification in the Dean and Smyth Actions due to issues related to the lead plaintiffs’ suitability as class representatives rather than the claims’ suitability for class treatment. On January 7, 2015, the district court dismissed the remaining defendants (“January 2015 Order”). On February 23, 2015, it denied plaintiffs’ motion for reconsideration (“February 2015 Order”), explaining that “Plaintiffs’ class action claims were time-barred regardless of the grounds on which class certification was denied in the-two earlier actions.”

The Resh plaintiffs appealed, challenging the district court’s October 2014, December 2014, January 2015, and February 2015 Orders.

III. Standard of Review

We review de novo a district court’s order dismissing a suit on statute of limitations grounds. Sharkey v. O’Neal, 778 F.3d 767, 770 (9th Cir. 2015).

IV. Jurisdiction

We have jurisdiction under 28 U.S.C. § 1291. Defendants argue that the orders are not appealable final orders because the district court indicated that plaintiffs’ individual claims could proceed. We disagree. The district court stated, “Plaintiffs are not prevented from filing a complaint asserting individual, rather than class action, claims ... if they so choose.” However, this statement did not affect the finality of the court’s dismissal “without leave to amend” of the class action complaint that plaintiffs had filed. An invitation to file a complaint in a separate individual suit does not render non-appealable the district court’s dismissal.

Defendants also assert that under Federal Rule of Appellate Procedure (“FRAP”) 4(a)(7)(A)(ii), plaintiffs were required to wait 150 days after the district court’s December 2014 and February 2015 orders before they appealed because the district court’s judgment had not been set forth in a.separate document, as required under Federal Rule of Civil Procedure (“Rule”) 58(a). However, under FRAP 4(a)(7)(B), “[a] failure to set forth a judgment or order on a separate document when required by ... Rule 58(a) does not affect the validity of an appeal from that judgment or order.” “[Njeither the Supreme Court nor this court views satisfaction of Rule 58 as a prerequisite to appeal.” Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir. 2003). Because the district court’s order was a full adjudication of the issues that clearly evidenced its intention that the order be final, appellate jurisdiction is proper. See Nat’l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997).

V. Discussion

We must decide whether the would-be class action brought by the Resh plaintiffs is time-barred. It is undisputed that the earlier Dean and Smyth Actions were timely. It is also undisputed that, under American Pipe and Crown, Cork & Seal, the statute of limitations for the individual claims of would-be class members in the Dean and Smyth Actions was tolled during the pendency of both of those actions. That is, there is no time bar to individual claims brought by plaintiffs who were unnamed class members in the Dean and Smyth Actions, whether brought as separate or joined claims. The question before us is whether plaintiffs’ would-be class action, based on those same claims, is time-barred.

A. American Pipe and Crown, Cork & Seal

The Supreme Court has twice addressed tolling issues arising out of the dismissal of a would-be class action when no class has been certified. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Court held that unnamed members of an uncerti-fied class could intervene as individual plaintiffs in the individual suit that remained even if the statutory limitations period had passed. Id. at 550-56, 94 S.Ct. 756. According to the Court, “the commencement of the original class suit tolls the running of the statute [of limitations] for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. at 553, 94 S.Ct. 756. The Court characterized its tolling rule as serving policies underlying statutes of limitations as well as class actions. Recognizing that limitations periods serve “[t]he policies of ensuring essential fairness to defendants and of barring a plaintiff who ‘has slept on his rights,’ ” id. at 554, 94 S.Ct. 756, the Court concluded that such policies would be vindicated when a named plaintiff “commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the poténtial plaintiffs who may participate in the judgment.” Id. at 554-55, 94 S.Ct. 756. Not permitting tolling would frustrate the goal of Rule 23 to promote economy in litigation because, absent tolling, “[potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable.” Id. at 553, 94 S.Ct 756.

In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Supreme Court extended American Pipe to permit tolling not only for individual intervention in the named plaintiffs’ original suit, but also for individual filing of entirely new suits. The Court wrote that many of “the same inefficiencies [discussed in American Pipe] would ensue if American Pipe’s, tolling rule were limited to permitting putative class members to intervene after the denial of class certification.” Id. at 350, 103 S.Ct. 2392. Specifically, if the statute of limitations for new individual claims were not tolled, “[t]he result would be a needless multiplicity of actions—precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid.” Id. at 351, 103 S.Ct. 2392. Because the commencement of a class suit already “put[s] defendants on notice of adverse claims,” the goals underlying statutes of limitations would not be undermined by a broader tolling rule. Id. at 352, 103 S.Ct. 2392. The Court concluded, “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. 2392.

B. Catholic Social Services and Later Cases

Under American Pipe and Crown, Cork & Seal, it is clear that the individual claims of the would-be class members in the Resh Action have been tolled during the pen-dency of earlier class actions. Those class members may intervene in existing individual suits, or may bring entirely new individual suits. Plaintiffs bringing new suits may sue either separately or jointly. American Pipe and Crown, Cork & Seal leave open the question whether such plaintiffs may bring a new suit as a class action.

In a short opinion published thirty years ago, we held that “the pendency of a class action [does not] toll[ ] the applicable statutes of limitation for a subsequently filed class action.” Robbin v. Fluor Corp., 835 F.2d 213, 213 (9th Cir. 1987). Relying principally upon a Second Circuit opinion, we concluded that “extending] tolling to class actions ‘tests the outer limits of the American Pipe doctrine and ... falls beyond its carefully crafted parameters into the range of abusive options.’ ” Id. at 214 (citing Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987)). In Korwek, our sister circuit had held that “the tolling doctrine enunciated in American Pipe does not apply to permit a plaintiff to file a subsequent class action following a definitive determination of the inappropriateness of class certification.” 827 F.2d at 879. Its rationale was that “[t]he Supreme Court in American Pipe and Croton, Cork certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.” Id.

We modified Robbin in 2000. In Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en banc), the district court had certified a class, but an intervening change in the law eliminated subject matter jurisdiction over the claims of the named plaintiffs. Id. at 1143-44. New plaintiffs then brought a second class action based on the same underlying facts against the same institutional defendants. Id. at 1144. The question before us was whether the pendency of the prior class action tolled the statute of limitations for the second action. Id. at 1145. We held that it did. Id. at 1149. In so holding, we clarified the analytic structure in which the American Pipe tolling analysis applies to future class actions:

There is no dispute that if members of the class ... had filed individual actions after the dismissal of their class action, the statute of limitations would have been tolled for those individual actions .... The only question in this case is whether those same plaintiffs should be permitted to aggregate their individual actions into a class action. Strictly speaking, this is not a statute of limitations question at all. It is, rather, a question of whether plaintiffs whose individual actions are not barred may be permitted to use a class action to litigate those actions.

Id. at 1147 (emphasis added).

Defendants read our opinion in Catholic Social Services as denying tolling for plaintiffs in certain categories of class action denials.' They rely principally on a passage in which we wrote, “If class action certification had been denied in [an earlier case], and if plaintiffs in this action were seeking to relitigate the correctness of that denial, we would' not permit plaintiffs to bring a class action.” Id. Two of our sister circuits may have read Catholic Social Services similarly. See Yang v. Odom, 392 F.3d 97, 107 (3d Cir. 2004) (“Catholic Social Services can be read as authority for our holding that class claims should be tolled where the district court denies class certification based on deficiencies of a class representative, and not on the validity of the class itself.”); Great Plains Tr. Co. v. Union Pac. R.R. Co., 492 F.3d 986, 997 (8th Cir. 2007) (“Whether the American Pipe rule applies to subsequent class actions ... depends on the reasons for the denial of certification of the predecessor action.”).

This is a misreading of Catholic Social Services. We did indeed write that “we would not permit plaintiffs to bring a class action” if they sought to serially re-litigate a previous denial of certification. 232 F.3d at 1147. However, we did not -write that the availability of a subsequent class action depended on general tolling principles. Rather, its availability depended on the operation of preclusion and preclusion-related principles. See id. For example, if plaintiffs in Catholic Social Services had been named plaintiffs in the earlier suit, if an issue relating to the propriety of the class action had been resolved against them, if their earlier suit had been dismissed with prejudice based on that ruling, and if plaintiffs had then sought to bring a new class action raising that same issue, they would have been barred by issue preclusion from raising that issue.

Three recent Supreme Court decisions have confirmed this view. First, in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), the-Court rejected an argument by defendant Allstate that only certain categories of claims are eligible for class treatment under Rule 23. The Court wrote:

There is no reason ... to read Rule 23 as addressing only whether claims made eligible for class treatment by some other law should be certified as class actions. Allstate asserts that Rule 23 neither explicitly nor implicitly empowers a federal court “to certify a class in each and every case” where the Rule’s criteria are met. But that is exactly what Rule 23 does[.]

Id. at 399, 130 S.Ct. 1431 (emphases in original and internal citation omitted). Shady Grove directs us, for purposes of class certification, to look only to the criteria of Rule 23 and not to “some other law.” There is nothing in the certification criteria of Rule 23 that tells us to look to whether the statute of limitation has, or has not, been tolled. That is, the statute of limitations is not part of Rule 23 but is, instead, “some other law.”

After Shady Grove, the Seventh Circuit explicitly adopted our general approach in Catholic Social Services in treating the issue of successive would-be class actions as an issue of preclusion rather than tolling. In Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560 (7th Cir. 2011), the court held that the overarching inquiry in determining whether prior class actions can toll future class actions is “not the statute of limitations or the effects of tolling, but the preclusive effect of a judicial decision in the initial suit applying the criteria of Rule 23.” Id. at 563. “To the extent that [another court] may believe that Rule 23 must be set aside when a suit’s timeliness depends on a tolling rule, that view cannot be reconciled with the Supreme Court’s later decision in Shady Grove ..., which holds that Rule 23 applies to all federal civil suits, even if that prevents achieving some other objective that a court thinks valuable.” Id. at 564.

Second, in Smith v. Bayer Corp., 564 U.S. 299, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011), the Court refused to allow a federal district court to enjoin a state court from certifying a class. The federal court had denied class certification of a class in a would-be class action against Bayer. Id. at 304, 131 S.Ct. 2368. A parallel would-be class action was pending in state court, brought by different named plaintiffs than the named plaintiffs in federal court. Id. at 303, 131 S.Ct. 2368. After the federal court ruled, it enjoined the state court from certifying the class in the case before that court, relying on the “relitigation exception” to the Anti-Injunction Act, 28 U.S.C. § 2283. Id. at 304-05, 131 S.Ct. 2368. The Supreme Court reversed, pointing out, inter alia, that the named plaintiffs in the state court suit had been unnamed members of the uncertified class in federal court, and that they had thus never been made parties to the federal court suit. Id. at 316-18, 131 S.Ct. 2368. In that circumstance, there was no basis to apply formal preclusion principles against them, and thus no basis to enjoin the state court from certifying the class action. Id.

The Court in Smith acknowledged Bayer’s argument that “serial relitigation of class certification” was unfair to defendants, and that defendants “would be forced in effect to buy litigation peace by settling.” Id. at 316, 131 S.Ct. 2368 (internal quotation marks omitted). The Court responded that Bayer’s “form of argument flies in the face of the rule against nonparty preclusion.” Id. Its answer to Bayer’s concern was that traditional principles of stare decisis and comity, combined with ' the possibility of removal under the Class Action Fairness Act or consolidation by the Panel on Multidistrict Litigation, were adequate to the task of protecting defendants. Id. at 316-18, 131 S.Ct. 2368. Though the question of sequential class action litigation in two or more federal courts, as distinct from such litigation in federal and state court, was not presented in the case before it, the Court nonetheless addressed that question. The troublesome case, of course, is one in which the plaintiffs were unnamed plaintiffs in an earlier uncertified class action in federal court and were therefore not subject to issue preclusion, and in which the plaintiffs later seek to bring an identical or substantially similar would-be class action in federal court. With respect to such a case, the Court wrote, “[W]e would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute.” Id. at 317, 131 S.Ct. 2368.

Two years later, the Sixth Circuit had occasion to apply both Shady Grove and Smith. In Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637 (6th Cir. 2015), with respect to tolling, the Sixth Circuit cited and followed the Seventh Circuit’s decision in Sawyer. Id. at 652. With respect to preclusion, the court relied on Smith. Wal-Mart, like Bayer in Smith, objected that allowing repeated litigation of class action certification questions by different named plaintiffs would force defendants “to settle to buy peace.” Id. at 653. The court responded that Wal-Mart’s concerns “need not bar legitimate class action lawsuits or distort the purposes of American Pipe tolling. Instead, we follow the Supreme Court’s lead and trust that existing principles in our legal system, such as stare decisis and comity among courts, are suited to and capable of addressing these concerns.” Id.

Third and finally, in Tyson Foods, Inc. v. Bouaphakeo, — U.S. -, 136 S.Ct. 1036, 1046-48, 194 L.Ed.2d 124 (2016), the Supreme Court considered whether class action plaintiffs could use statistical sampling evidence to prove liability to a class. The Court held that they could, reasoning that “[i]n a case where representative evidence is relevant in proving a plaintiffs individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class.” Id. at 1046. To hold otherwise would be to “ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot ‘abridge ... any substantive right.’ ” Id. (quoting 28 U.S.C. § 2072(b)). We recognize that for purposes of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and the Rules Enabling Act, statutes of limitation occupy a no-man’s land between substance and procedure. See Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 532-34, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) (in a suit based on state-law cause of action applying state tolling rule rather than Federal Rule of Civil Procedure 3); Walker v. Armco Steel Corp., 446 U.S. 740, 748-53, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980) (same); West v. Conrail, 481 U.S. 35, 37-40, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987) (in a suit based on a federal-law cause of action applying Rule 3). We therefore do not regard the Court’s reasoning in Tyson Foods as compelling a holding that the Rules Enabling Act requires that the statute of limitations apply the same way in both individual and class actions. But Tyson Foods, when read in combination with Shady Grove and Smith, nonetheless reinforces our conclusion that the statute of limitations does not bar a class action brought by plaintiffs whose individual actions are not barred.

C. Plaintiffs’ Would-be Class Action Is Not Time-barred

We conclude, based on American Pipe and Crown, Cork & Seal, read in the light of Shady Grove, Smith and Tyson Foods, that permitting future class action named plaintiffs, who were unnamed class members in previously uncertified classes, to avail themselves of American Pipe tolling would advance the policy objectives that led the Supreme Court to permit tolling in the first place. The rule creates no unfair surprise to defendants because the pendency of a prior class suit has already alerted them “not only [to] the substantive claims being brought against them, but also [to] the number and generic identities of the potential plaintiffs who may participate in the judgment.” American Pipe, 414 U.S. at 554-55, 94 S.Ct. 756. The rule also promotes economy of litigation by reducing incentives for filing duplicative, protective class actions because “[a] putative class member who fears that class certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations.” Crown, Cork & Seal, 462 U.S. at 350-51, 103 S.Ct. 2392.

We further conclude, based on Smith, that to the degree that our conclusion may be thought likely to lead to abusive filing of repetitive class actions, the current legal system is adequate to respond to such a concern. First, if it is clear that a proposed class is not viable under Rule 23, as evidenced by an earlier federal court decision, potential future plaintiffs (or, more precisely, their attorneys) will have little to gain from repeatedly filing new suits. Attorneys who are going to be paid on a contingency fee basis, or in some cases based on a fee-shifting statute, at some point will be unwilling to assume the financial risk in bringing successive suits. Second, ordinary principles of preclusion and comity will further reduce incentives to re-litigate frivolous or already dismissed class claims, and will provide a ready basis for successor federal district courts to deny class action certification.

In light of the above, we conclude that plaintiffs’ class action complaint is not time-barred. Plaintiffs’ individual claims were tolled under American Pipe and Crown, Cork & Seal during the pendency of the Dean and Smyth Actions. So long as they can satisfy the criteria of Rule 23, and can persuade the district court that comity or preclusion principles do not bar their action, they are entitled to bring their timely individual claims as named plaintiffs in a would-be class action.

Conclusion

We hold that plaintiffs’ class action claims are timely. Because we so hold, we do not reach plaintiffs’ additional arguments. We reverse the district court’s order of dismissal and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.


source: Caselaw Access Project

author: IKUTA, Circuit Judge:

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    Federico Diego de DIEGO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
    No. 13-72048
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 6, 2017, Seattle, Washington
    Filed May 26, 2017

      Ama David (argued), Global Justice Law Group PLLC, Seattle, Washington; Erica Schommer, Rios & Cruz P.S., Seattle, Washington; for Petitioner.

      Edward Earl Wiggers (argued) and Jennifer L. Lightbody, Senior Litigation Counsel; Mary Jane Candaux, Assistant Director; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.
    Before: SUSAN P. GRABER, SANDRA S. IKUTA, and ANDREW D. HURWITZ, Circuit Judges.
   OPINION

IKUTA, Circuit Judge:

The Board of Immigration Appeals (BIA) concluded that Federico Diego de Diego was an aggravated felon because of his conviction for attempted sexual abuse under Oregon law. See Or. Rev. Stat. § 163.427. The BIA therefore determined that Diego was deportable, terminated his asylee status, denied his request for adjustment of status to lawful permanent resident, and denied waiver of inadmissibility. Diego petitions for review of these decisions. We deny the petition in part and dismiss it in part.

I

In order to explain Diego’s arguments, we begin by reviewing the relevant legal framework.

A

The Immigration and Nationality Act (INA) provides that the Secretary of Homeland Security or the Attorney General “may grant asylum to an alien who has applied for asylum in accordance with [applicable procedures] if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee....” 8 U.S.C. § 1158(b)(1)(A). A grant of asylum, however, “does not convey a right to remain permanently in the United States.” Id. § 1158(c)(2). Rather, an alien’s asylee status “may be terminated if the Attorney General determines” that the alien is ineligible for asylum. See id. § 1158(c)(2)(B). An alien is ineligible for asylum “if the Attorney General determines that ... the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” Id. § 1158(b)(2)(A)(ii). For purposes of the “particularly serious crime” determination, the INA provides that “an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” Id. § 1158(b)(2)(B)(i). Under the INA, an “aggravated felony” includes “sexual abuse of a minor,” id. § 1101(a)(43)(A), and “an attempt ... to commit” such abuse, id. § 1101(a)(43)(U). An alien who has “been convicted by a final judgment of a particularly serious crime” is also ineligible for withholding of removal, id. § 1231(b)(3)(B)(ii), and may be denied other discretionary relief, such as adjustment of status to lawful permanent resident, id. § 1159(b), or waiver of inadmissibility, id. § 1159(c).

B

In order to determine whether a predicate state conviction is an aggravated felony for purposes of the INA, we apply a three-step process set forth in Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). See Almanzar-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir. 2016) (en banc).

At the first step, we ask whether the elements of the alien’s state statute of conviction criminalize more conduct than, or the same conduct as, the elements of a generic federal offense included in the definition of “aggravated felony” set forth at § 1101(a)(43). See id. (quoting Lopez-Valencia v. Lynch, 798 F.3d 863, 867-68 (9th Cir. 2015)). Under this categorical approach, if “the elements of the state crime are the same as or narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony.” Lopez-Valencia, 798 F.3d at 867. By contrast, if the elements of the state statute of conviction criminalize more conduct than the elements of the generic federal offense, then the state statute is overbroad and is not a categorical match. Id. at 867-68.

If the statute is overbroad, we proceed to step two and determine whether the state statute of conviction is “divisible” or “indivisible.” Id. We employ a three-phase process to determine whether a state statute is divisible. First, we consider the statute’s text. Descamps, 133 S.Ct. at 2285 & n.2. If the text is drafted with a list of disjunctive items that comprise alternative elements, such that the statute “effectively creates ‘several different ... crimes,’ ” id. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)), then the statute is divisible, see Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2256, 195 L.Ed.2d 604 (2016). If the statute merely lists alternate means of satisfying a single element, then it is indivisible. See Almanzar-Arenas, 815 F.3d at 477-78.

If “distinguishing between ‘alternative elements’ and ‘alternative means’ ” in a disjunctively phrased state statute is difficult, Descamps, 133 S.Ct. at 2285 n.2, we proceed to the second phase, “examining the Shepard documents to see whether the statute displays alternative elements instead of alternative means of committing the same crime,” Almanza-Arenas, 815 F.3d at 478. The Shepard documents include the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented,” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), as well as the clerk’s minute order, see United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (en banc) (per curiam), abrogated on other grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), and other documents that “reflect the crime’s elements,” Descamps, 133 S.Ct. at 2285 n.2, and are “of equal reliability” to those the Supreme Court has approved, Snellenberger, 548 F.3d at 701.

In the third and final phase, “we verify that our interpretation [of the state statute of conviction] is the same as the interpretation of the [relevant state] courts.” Almanza-Arenas, 815 F.3d at 479. In other words, “we must verify that our interpretation of elements versus means is consistent with how [the state] would instruct a jury as to this offense.” Id.

If this three-phase analysis leads us to conclude that the statute is divisible, we proceed to the third step for determining if a state statute of conviction is an aggravated felony: the modified categorical approach. At this step, we look to the Shepard documents again, but this time “to determine what crime, with what elements, a defendant was convicted of.” Mathis, 136 S.Ct. at 2249. Once we identify the crime of conviction, we “then compare that crime, as the categorical approach commands, with the relevant generic offense.” Id. Stated otherwise, we repeat step one—the categorical approach—but limited to the actual crime of conviction described in the relevant subpart of the divisible criminal statute. If this crime’s elements are the same as or narrower than a generic federal offense that is defined as an aggravated felony under § 1101(a)(4S), then the crime is a categorical match and a conviction for that offense constitutes an aggravated felony. See Lopez-Valencia, 798 F.3d at 867.

II

We now turn to the facts of this case. Diego, a native and citizen of Guatemala, entered the United States without inspection in December 1997. About one year after his arrival in .this country, he applied for asylum and withholding of removal, which an immigration judge (IJ) granted in June 1999. The BIA affirmed the IJ’s decision in September 2002, but Diego never filed an application to adjust his status to that of lawful permanent resident.

In February 2002, Diego was arrested in Oregon after a young woman reported to the police that Diego had entered her home in the middle of the night and inappropriately touched both her and a minor female in the home. According to the young woman, Diego had awakened her, touched her breasts through her clothes, and attempted to pull down her pants. The young woman instructed Diego to leave, but Diego instead went to the living room of the home where he came upon B.C., a nine-year-old friend of the young woman’s sister. When the young woman found Diego with his arms wrapped around B.C., she called the police. B.C. told police that Diego had put his lip against the side of her mouth and touched her upper thigh.

In March 2002, the State of Oregon indicted Diego on two counts of burglary in the first degree, one count of theft in the third degree, one count of sexual abuse in the third degree and, as relevant here, one count of attempted sexual abuse in the first degree in violation of section 163.427 of the Oregon Revised Statutes. Count 3 of the indictment charged that “on or about February 17, 2002, in Washington County, Oregon, [Diego] did unlawfully and intentionally attempt to subject [B.C.], a person less than 14 years' of age, to sexual contact.”

Diego subsequently failed to attend one of his court hearings and was indicted for failure to appear. Ultimately, Diego pleaded guilty to the two counts of burglary in the first degree, one count of attempted sexual abuse in the first degree, and one count of failure to appear in the first degree; the state dropped the remaining charges. Diego’s “petition to enter plea” stated that he wished to plead guilty to Count 3, attempted sexual abuse in the first degree, and: “I plead guilty and request the Court to accept my plea and to have it entered on the basis of [o]n 2/17/02 in Washington County, I entered an apartment and while inside, I attempted to subject [B.C.] to sexual contact.”

In September 2011, Diego was served with a notice to appear, alleging in pertinent part that he was removable as an aggravated felon, see 8 U.S.C. § 1227(a) (2) (A) (iii), due to his conviction for attempted sexual abuse in violation of section 163.427. Diego admitted the factual allegations in the notice to appear but denied removability. Applying the modified categorical approach, the IJ concluded that Diego’s attempted sexual abuse conviction constituted an aggravated felony for purposes of § 1101(a)(43)(A)..

After the IJ ruled that Diego was removable, the government moved to terminate Diego’s asylee status and withholding of removal. Diego, in turn, sought (1) adjustment of status to lawful permanent resident under 8 U.S.C. § 1159(b) and waiver of inadmissibility under 8 U.S.C.. § 1159(c); (2) withholding of removal under 8 U.S.C. § 1231(b)(3); and (3) relief under the Convention Against Torture (CAT). Because Diego had been convicted of an aggravated felony, the IJ determined that Diego was no longer eligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and granted the government’s motion to terminate his asylee status, see id. § 1158(c)(2)(B). The IJ then held, in the alternative, that Diego’s case did not warrant the exercise of discretionary relief under § 1159(b) and (c). Finally, the IJ determined that Diego’s conviction rendered him ineligible for withholding of removal, and that Diego had not established eligibility for relief under the CAT.

The BIA dismissed Diego’s appeal in May 2013, holding that the IJ had not erred in concluding that Diego’s conviction pursuant to section 163.427 was for sexual abuse of a minor and therefore constituted an aggravated felony under § 1101(a)(43)(A). The BIA determined that the Oregon statute of conviction was divisible, that the indictment reflected that the victim was younger than fourteen, and that under Ninth Circuit precedent the criminal conduct was per se abusive. The BIA also held that the IJ had correctly determined that Diego was ineligible for asylum and appropriately granted the government’s motion for termination of Diego’s asylee status.

Diego timely petitioned for review. He contends that the IJ and BIA erred in concluding that his conviction for attempted sexual abuse under section 163.427 constitutes an aggravated felony, and by extension erred in terminating his asylee status and denying his application for adjustment of status and waiver of inadmissibility.

III

We have jurisdiction to decide questions of law raised in a petition for review, see 8 U.S.C. § 1252(a)(2)(D), including whether Diego’s conviction for attempted sexual abuse in the first degree is an aggravated felony. We review de novo the BIA’s determination that Diego’s conviction is an aggravated felony, and we do so without deference to the agency’s interpretation of state or federal criminal law. Sandoval v. Yates, 847 F.3d 697, 699 (9th Cir. 2017). We lack jurisdiction to review decisions that the INA specifies “to be in the discretion of the Attorney General,” 8 U.S.C. § 1252(a)(2)(B)(ii), or “any final order of removal against an alien who is removable by reason of having committed” an aggravated felony, id. § 1252(a)(2)(C). Thus, we lack jurisdiction to consider any discretionary aspect of the agency’s decision to deny Diego’s application for adjustment of status and waiver of inadmissibility under 8 U.S.C. § 1159(b) and (c), as the Attorney General’s discretion is specified in the statute. See Latter-Singh v. Holder, 668 F.3d 1156, 1164 (9th Cir. 2012) (holding that we lack jurisdiction over “the discretionary use of’ power under § 1159(c)); cf. Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th Cir. 2003) (holding that provisions providing that the Attorney General “may” take certain action vest unreviewable “ultimate authority ... in the discretion of the Attorney General”).

IV

We now apply the relevant legal principles to the facts of this case. Diego argues that his Oregon conviction for attempted sexual abuse, Or. Rev. Stat. § 163.427, is a not an aggravated felony for purposes of § 1101(a)(43)(A) because his crime of conviction is not a categorical match to the generic federal offense of sexual abuse of a minor. Section 163.427 provides:

(I) A person commits the crime of sexual abuse in the first degree when that person:
(a) Subjects another person to sexual contact and:
(A) The victim is less than 14 years of age;
(B) The victim is subjected to forcible compulsion by the actor; or
(C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless; or
(b) Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.

A

We analyze Diego’s argument by using the three-step process articulated in Des-camps and clarified in Almanzcu-Arenas. We begin the Descamps analysis by asking whether section 163.427 criminalizes the same or less conduct as the elements of the generic federal offense of sexual abuse of a minor. Almanza-Arenas, 815 F.3d at 475.

We have provided two definitions of “sexual abuse of a minor.” First, “for purposés of § 1101(a)(43)(A), Congress has enumerated the elements of the offense of ‘sexual abuse of a minor’ at 18 U.S.C. § 2243.” Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013 (9th Cir. 2009) (internal quotation marks omitted). Under § 2243, a person commits sexual abuse of a minor if a person “knowingly engages in a sexual act” with another person who is at least 12 years old, but less than 16, and at least four years younger than the defendant. Id. Second, a crime “may qualify as the federal generic offense of ‘sexual abuse of a minor’ if: (1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse.” Id. at 1014. For purposes of this second definition, we have defined “abuse as physical or psychological harm in light of the age of the victim in question.” United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009) (internal quotation marks omitted).

On its face, section 163.427 criminalizes more conduct than the generic federal offense of sexual abuse of a minor because a person may violate the statute by subjecting adults to abusive sexual contact. For example, the statute criminalizes sexual contact with any person (whether a minor or an adult) who is incapable of consent by virtue of being “mentally incapacitated.” Or. Rev. Stat. § 163.427(1)(a)(C). Because the statute as a whole does not categorically match the generic federal offense, we must proceed to the second step of the Descamps analysis.

B

We have already determined that section 163.427 is a divisible statute, in that paragraphs (1)(a) and (1)(b) define two different crimes. United States v. Rocha-Alvarado, 843 F.3d 802, 807 n.2 (9th Cir. 2016), petition for cert. filed, No. 16-7885, — U.S.L.W. — (U.S. Feb. 6, 2017). We have not, however, considered whether paragraph 163.427(l)(a)’s subparagraphs are similarly divisible, and so we turn to the three-phase process set forth in Al-manzctr-Arenas. At phase one, we consider paragraph 163.427(1)(a)’s text, and note that it uses disjunctive phrasing. The statutory text joins the element of subjecting another person to sexual contact to one of three alternative enumerated circumstances. This phrasing suggests that the legislature created three different offenses: subjecting a victim who is less than 14 years old to sexual contact, or subjecting another person to sexual contact through the use of forcible compulsion, or subjecting another person who is incapable of consent for specified reasons to sexual contact. Or. Rev. Stat. § 163.427(1)(a).

We “confirm this statutory interpretation by ... examining the Shepard documents to see whether the statute displays alternative elements instead of alternative means of committing the same crime.” Almanza-Arenas, 815 F.3d at 478. Because Count 3 of Diego’s state court indictment, which charged him with “unlawfully and intentionally attempt[ing] to subject [B.C.], a person less than 14 years of age, to sexual contact,” in violation of section 163.427, tracks subparagraph (1)(a)(A), but lacks any text referencing subparagraphs (1)(a)(B) or (C), the indictment “indicate[s], by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.” Mathis, 136 S.Ct. at 2257. Similarly, Diego’s petition to enter a plea admits to the conduct of “attempt[ing] to subject [B.C.] to sexual contact,” which again tracks the wording of subparagraph (l)(a)(A), in that it admits only that he subjected B.C., a victim known to be less than 14 years of age, to sexual contact. Like the indictment, the plea petition makes no reference to the conduct described in subparagraphs (l)(a)(B) or (C). From these documents, we infer that Oregon treated the victim’s age as a necessary fact that the state was required to prove beyond a reasonable doubt to secure Diego’s conviction, i.e., an element of the offense. See Descamps, 133 S.Ct. at 2290.

Finally, we verify our interpretation of section 163.427 by considering the interpretation of Oregon courts, Almanza-Arenas, 815 F.3d at 480, which again demonstrate that the three subparagraphs in paragraph 163.427(1)(a) are alternative elements of the offense., In State v. Marshall, for example, the Oregon Supreme Court characterized “sexual contact” and “subjecting the victim to ‘forcible compulsion,’ ” a phrase specific to subparagraph 163.427(1)(a)(B), as “the two elements of the crime.” 350 Or. 208, 217, 253 P.3d 1017 (2011). Similarly, in State v. Gray the Court of Appeals of Oregon described “subjected to forcible compulsion”—the operative language of subparagraph 163.427(1)(a)(B)—as an “element” of the crime. 261 Or.App. 121, 125, 322 P.3d 1094 (2014). The court used the same characterization in State v. Nelson, 241 Or.App. 681, 688, 251 P.3d 240 (2011). These cases point persuasively to the conclusion that the disjunctive enumerated list of subparagraphs (A) through (C) is a list of alternative elements, not means.

Diego argues that State v. Parkins is to the contrary. Parkins considered whether a defendant could be convicted for more than one count of sexual abuse if the defendant’s conduct violated more than one subparagraph of 163.427(1)(a). 346 Or. at 335, 211 P.3d 262. The defendant in Parkins used “forcible compulsion,” Or. Rev. Stat. § 163.427(1)(a)(B), to subject a victim “less than 14 years of age,” id. § 163.427(1)(a)(A), to three sexual contacts. 346 Or. at 348, 211 P.3d 262. The court analyzed this issue under Oregon’s “anti-merger” statute, id., which provides:

When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.

Or. Rev. Stat. § 161.067(1). Parkins explained that in order to determine whether the anti-merger statute applies to paragraph 163.427(l)(a), it was necessary to determine “whether the legislature intended to create a single crime or two or more crimes.” 346 Or. at 349, 211 P.3d 262. Applying this standard, Parkins concluded that the state legislature did not intend to punish a defendant for three separate violations of section 163.427 if the defendant engaged in a single act of sexual abuse that happened to include all the elements of subparagraphs (l)(a)(A) through (C). Id. at 355, 211 P.3d 262. Parkins reasoned that the legislature intended section 163.427 to define the single crime of first degree sexual abuse (as opposed to lesser degrees of sexual abuse defined by other statutes), and listed four ways in which a person commits such an aggravated offense. Id. at 350, 211 P.3d 262. Therefore, “[t]he presence of more than one of the elements that convert a lower degree of sexual abuse to first-degree sexual abuse” in the defendant’s conduct “does not convert defendant’s single act into separate crimes.” Id. at 355, 211 P.3d 262.

Diego argues that this reasoning compels the conclusion that subparagraphs 163.427(l)(a)(A) through (C) describe different means to commit the same offense, rather than listing alternative elements for separate offenses. We disagree. Parkins’s conclusion that a defendant cannot be convicted of three different violations of section 163.427 for a single criminal episode does not address the question whether the three subparagraphs contain alternative elements that effectively create different crimes. Indeed, Parkins stated that these subparagraphs constitute “three alternative elements for first-degree sexual abuse.” Id. at 350-51, 211 P.3d 262 (emphasis added). This statement supports our conclusion that the state may convict the defendant of the offense described in paragraph 163.427(l)(a) only by proving one of the subparagraphs beyond a reasonable doubt. See, e.g., Marshall, 350 Or. at 217, 253 P.3d 1017. Parkins stands only for the proposition that the state may not convict a defendant of three different offenses stemming from the same incident by proving all the elements contained in each of the three subparagraphs (l)(a)(A) through (C).

In light of the statutory text, Shepard documents, and state court decisions, we conclude that subparagraphs 163.427(l)(a)(A) through (C) are divisible.

C

We now proceed to step three of the process for determining whether a state conviction is an aggravated felony, and apply the modified categorical approach. Mathis, 136 S.Ct. at 2249.

As noted above, the relevant Shepard documents in this case—the indictment and plea petition—track the language of subparagraph (l)(a)(A), which criminalizes sexual contact with a victim “less than 14 years of age,” with no reference to the remaining subparagraphs. Accordingly, we conclude that Diego was convicted under subparagraph (l)(a)(A).

Diego argues that we cannot consider his plea petition because it does not expressly state that it incorporates the facts alleged in the indictment, citing United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc). We reject this argument. Vidal merely requires that “[w]hen a court using the modified categorical approach to determine whether an underlying conviction is a predicate offense relies solely on the link between the charging papers and the abstract of judgment, that link must be clear and convincing.” Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014). Here, the link between the indictment and the plea petition meets that standard because the plea petition expressly admits guilt as to Count 3 of the indictment and restates the offense in language that tracks the indictment, i.e., admitting the identity of the victim, whom the indictment identifies as a person under the age of 14.

We now apply the categorical approach to compare subparagraph 168.427(1)(a)(A) to the generic federal offense of sexual abuse of a minor. A conviction under sub-paragraph 163.427(1)(a)(A) necessarily requires sexual contact with a person under the age of 14. We have held that sexual conduct with a person under the age of 14 is per se abusive. United States v. Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir. 2010); United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). Therefore, 163.427(l)(a)(A) criminalizes (1) sexual conduct (2) with a minor (3) that constitutes abuse, the same elements included in the generic federal offense. See Valencia-Barragan, 608 F.3d at 1107; Baron-Medina, 187 F.3d at 1147 (holding that “(a) the touching of an underage child’s body (b) with a sexual intent” constitutes generic federal “sexual abuse of a minor”). Thus, a conviction under 163.427(1)(a)(A) is categorically a generic federal sexual abuse of a minor offense, and by extension an aggravated felony for purposes of § 1101(a)(43)(A).

Rocha-Alvarado confirms our analysis. In that case, applying the modified categorical approach, we held that subpara-graph 163.427(l)(a)(A) was a “crime of violence” for federal sentencing purposes. 843 F.3d at 805. We reached this conclusion by reasoning that subparagraph 163.427(l)(a)(A) was categorically “sexual abuse of a minor,” one of the categories of “crime of violence.” Id. at 807-08. As we have previously explained, “the analysis ... for a ‘crime of violence’ in the sentencing context” is “the same” as the analysis “whether a statute of conviction constitute[s] an ‘aggravated felony’ in the immigration context.” Valencia-Barragan, 608 F.3d at 1107 n.1; see also Pelayo-Garcia, 589 F.3d at 1013 n.l. In other words, our conclusion that a state offense is a categorical match with generic federal sexual abuse of a minor for sentencing purposes carries over to immigration cases because, in both contexts, we ask the same question: whether the elements of the state crime are the same as or narrower than the elements of the generic federal offense. See Valencia-Barragan, 608 F.3d at 1107 n.l. As we held in Rocha-Alvarado, “[a]ny conviction” under subparagraph 163.427(l)(a)(A) “falls within the federal definition of ‘sexual abuse of [a] minor.’ ” 843 F.3d at 808.

V

We hold that paragraph 163.427(l)(a) of the Oregon Revised Statutes is divisible, and a conviction under subparagraph 163.427(l)(a)(A) is sexual abuse of a minor within the generic federa} definition and therefore an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). Accordingly, the BIA did not err in concluding that Diego had been convicted of a particularly serious crime, see 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and therefore terminating Diego’s asylee status pursuant to § 1158(c)(2)(B). Apart from this purely legal question, we lack jurisdiction to review the BIA’s discretionary decisions on the denial of adjustment of status and waiver of inadmissibility.

PETITION DISMISSED IN PART AND DENIED IN PART.

      . We dispose of the remainder of Diego’s arguments in a concurrently filed unpublished memorandum disposition. See Diego v. Sessions, - Fed.Appx. - (9th Cir. 2017).

      . For purposes of this provision, a "refugee” is "any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any countiy in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8U.S.C. § 1101(a)(42)(A).

      . We adopt the Oregon Supreme Court’s nomenclature for describing section 163.427’s subdivisions from State v. Parkins, 346 Or. 333, 350, 211 P.3d 262 (2009) (describing 163.427(1)(a) as a “paragraph” with “three subparagraphs”).

      . Diego was convicted of attempted first degree sexual abuse, but attempted sexual abuse of a minor is likewise an aggravated felony in the immigration context. See 8 U.S.C. § 1101(a)(43)(U). In a letter filed the morning of oral argument, Diego argued for the first time that Oregon’s attempt statute does not match the generic federal definition of attempt. Because this issue was not "specifically and distinctly argued and raised” in Diego’s opening brief, nor raised before the agency, the argument is waived. Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001)).


author: JAY S. BYBEE, Circuit Judge, Presiding

text:
    Aline L. MILLER, an individual, Plaintiff-Appellee, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant-Appellant.
    No. 14-36001
    United States Court of Appeals, Ninth Circuit.
    Filed May 26, 2017
    Emily V. Cuatto and Peder K. Batalden, Horvitz & Levy LLP, Encino, California; Nancy M. Erfle and Jessica D. Osborne, Gordon & Rees LLP, Portland, Oregon; Sara Anderson Frey, Gordon & Rees LLP, Philadelphia, Pennsylvania; for Defendant-Appellant.
    Elizabeth C. Savage and Ivan M. Kar-mel, Portland, Oregon; Robert J. Slavik, Seattle, Washington; for Plaintiff-Appellee.
    Susan Marmaduke and J. Aaron Landau, Harrang Long Gary Rudnick P.C., Portland, Oregon, for Amicus Curiae Oregon Association of Defense Counsel.
    Jonathan M. Hoffman and Alice Sayers Newlin, Martin Bischoff Templeton Lang-slet & Hoffman LLP, Portland, Oregon, for Amicus Curiae The Product Liability Advisory Council, Inc.

      Before: JAY S. BYBEE and ANDREW D. HURWITZ, Circuit Judges, and JACK ZOUHARY, District Judge.

       The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.

   ORDER

JAY S. BYBEE, Circuit Judge, Presiding

Pursuant to Oregon Revised Statutes § 28.200, we certify the following question to the Oregon Supreme Court:

Oregon’s statute of repose for products liability actions (Or. Rev. Stat. § 30.905(2)) provides that a civil action “must be commenced before the later of ... ten years ... or ... the expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured.... ” If the state of manufacture has no relevant statute of repose, is a plaintiff entitled to an unlimited period (subject to the statute of limitations) in which to bring suit in Oregon court?

We respectfully ask the Oregon Supreme Court to exercise its discretion to accept and decide this question of law, which will determine the outcome of this appeal. We are aware of no controlling precedent on this issue in the decisions of the Oregon Supreme Court or intermediate appellate courts. The Oregon Supreme Court is not restricted to our framing of this question of state law, and may, in its discretion, answer this question in any form that it chooses. We will abide by the answer provided. If the Oregon Supreme Court declines certification, we will resolve the question according to our best understanding of Oregon law.

Factual Background

Oregon resident Aline Miller owned a Ford Escape, which was manufactured in June 2001 in Claycomo, Missouri. The Escape was first sold to a consumer in September 2001. In May 2012, the Escape caught fire while parked in Miller’s garage, allegedly due to a faulty sensor in the engine compartment. The fire spread from Miller’s garage to her home, causing significant property damage. Miller also fractured her heel as she fled the fire.

In April 2014, Miller filed a products liability suit in Oregon state court, alleging various design and manufacturing defects, as well as failures to warn. Invoking diversity jurisdiction, Ford removed the case to the District of Oregon and later moved for summary judgment, arguing the Oregon statute of repose for products liability actions bars Miller’s claims because the Escape was first sold to a consumer more than ten years before she filed suit. The district court denied the motion, finding Oregon’s ten-year statute of repose did not apply. Instead, the district court concluded the statute’s “look-away” provision required the court to apply the repose period of the state of manufacture. Because Missouri had no statute of repose for products liability actions, the district court concluded no such limitation applied to bar Miller’s claims.

On appeal, Ford challenges the district court’s interpretation of the Oregon statute of repose.

Discussion

Oregon’s statute of repose for products liability actions reads as follows:

(2) A product liability civil action for personal injury or property damage must be commenced before the later of:
(a) Ten years after the date on which the product was first purchased for use or consumption; or
(b) The expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured, or, if the product was manufactured in a foreign country, the expiration of any statute of repose for an equivalent civil action in the state into which the product was imported.

Or. Rev. Stat. § 30.905(2). Ford contends the statute is capable of only one reasonable interpretation—namely, that a products liability action in Oregon is subject to a period of ultimate repose of either (1) ten years or (2) the period of repose of the state of manufacture, whichever is longer. Ford argues that the plain language of the statute does not authorize an unlimited period in which to bring suit because the look-away provision requires a “statute of repose” in the state of manufacture that is subject to “expiration.” Ford suggests that under these circumstances, the look-away provision does not apply, and the statutory period of ultimate repose defaults to ten years.

Miller contends that the plain language of the statute is neither clear nor disposi-tive, noting that the text does not explicitly require courts to “look back” to Oregon law if the state of manufacture has no relevant period of repose. She also cites several excerpts from the legislative history of the statute—including testimony before the Senate Judiciary Committee, concerns raised during debate in the House of Representatives, and the Legislative News Release announcing the new statute—suggesting the Oregon legislature intended to allow plaintiffs to bring suit within the time permitted in the state of manufacture, however long that might be.

Oregon principles of statutory interpretation do not require a court to find the text ambiguous before considering legislative history. State v. Gaines, 346 Or. 160, 206 P.3d 1042, 1050 (2009). “However, the extent of the court’s consideration of that history, and the evaluative weight that the court gives it, is for the court to determine.” Id. at 1050-51. Here, the text of the statute appears to predicate application of the look-away provision on the existence of an equivalent statute of repose in the foreign state. But the legislative history at least suggests Oregon lawmakers may not have intended to impose this limitation. Because the resolution of this case turns solely on Oregon law, we certify this question of law to the Oregon Supreme Court for an authoritative decision of this issue. See Patton v. Target Corp., 580 F.3d 942, 948 (9th Cir. 2009).

Further proceedings in this case are stayed pending receipt of the answer to the certified question or notification from the Oregon Supreme Court that it declines to answer. The parties shall notify this Court within ten days after the Oregon Supreme Court accepts or rejects certification. If the Oregon Supreme Court accepts certification, the parties shall file a joint status report with this Court six months after the date of acceptance and every six months thereafter until the case is decided. The parties shall then notify this Court within ten days of the Oregon Supreme Court’s decision.

The Clerk shall file a certified copy of this Order with the Oregon Supreme Court under Or. Rev. Stat. § 28.215. The Clerk shall also provide the Oregon Supreme Court a copy of the record in this case, in whole or in part, upon request.

IT IS SO ORDERED.


text:
    Clifton WHIDBEE, individually, Plaintiff-Appellant, v. PIERCE COUNTY, a Washington State Municipal Corporation; Eugene Allen, in his individual capacity, Defendants-Appellees.
    No. 14-36094
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 7, 2017 Seattle, Washington
    Filed May 26, 2017

      Loren A. Cochran (argued) and Darrell L. Cochran, Pfau Cochran Vertetis Amala PLLC, Tacoma, Washington, for Plaintiff-Appellant.
    Alicia M. Burton (argued), Deputy Prosecuting Attorney; Mark Lindquist, Prosecuting Attorney; Prosecuting Attorney’s Office, Tacoma, Washington; for Defendants-Appellees.
    Before: SUSAN P. GRABER, SANDRA S. IKUTA, and ANDREW D. HURWITZ, Circuit Judges.
   OPINION

IKUTA, Circuit Judge:

Clifton Whidbee challenges the district court’s dismissal of his federal civil rights and state negligence claims against defendants Pierce County and Pierce County Sheriffs Deputy Eugene Allen. We affirm. The period of time during which 'Whidbee could commence these claims expired under a state statute of limitations before defendants removed the action to federal court, and the federal rules allowing additional time to effect service of process on defendants following removal do not extend or revive a state statute of limitations.

I

Under Washington law, an action for “injury to the person or rights of another” (with some exceptions not relevant here) “shall be commenced within three years.” Wash. Rev. Code § 4.16.080(2). “For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed....” Id. § 4.16.170. A plaintiff then has 90 days within which to serve process on at least one defendant. Id. If, “following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.” Id. Reading these statutes together, a personal injury action “shall be deemed commenced” for purposes of tolling the statute of limitations if the plaintiff files the complaint within three years from the date of injury and if the plaintiff serves at least one of the defendants no later than 90 days after filing the complaint. If the plaintiff fails to do so, the action may be time barred. Id.; see also Gross v. Sunding, 139 Wash.App. 54, 60, 161 P.3d 380 (2007).

A plaintiff suing a county must serve the county auditor, Wash. Rev. Code § 4.28.080(1), and a plaintiff suing an individual generally must serve “the defendant personally” or “leavfe] a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein,” id. § 4.28.080(16). Washington courts require strict compliance with the state’s service of process requirements. See Haberman v. Wash. Pub. Power Supply Sys., 109 Wash.2d 107, 177, 744 P.2d 1032 (1987) (as amended) (“[Mjere receipt of process and actual notice alone do not establish valid service of process.”); Gross, 139 Wash.App. at 60, 161 P.3d 380 (holding that action was time barred despite defendant’s knowledge of plaintiffs attempts to serve process). In the case of a county defendant, “[sjervice on anyone other than the Auditor is insufficient.” Nitardy v. Snohomish County, 105 Wash.2d 133, 135, 712 P.2d 296 (1986).

If the plaintiff fails to serve process no later than 90 days after the complaint is filed, and the time for commencing an. action expires under Washington’s statute of limitations laws, the defendant may raise the affirmative defenses that service of process was insufficient and that the suit is time barred. See, e.g., Jones v. Stebbins, 122 Wash.2d 471, 480, 860 P.2d 1009 (1993); Boyle v. Clark, 47 Wash.2d 418, 423-24, 287 P.2d 1006 (1955). But those defenses may be waived if a defendant fails to raise them. See Jones, 122 Wash.2d at 480, 860 P.2d 1009; Boyle, 47 Wash.2d at 423-24, 287 P.2d 1006.

II

We now turn to the facts of this case. On November 19, 2010, the Pierce County-Sheriffs Department executed a search warrant on Whidbee’s home. In connection with executing the warrant, Deputy Allen threw a flash-bang grenade into the house, which burned Whidbee’s right arm and lower abdomen. Whidbee was arrested and detained at the Pierce County Jail until November 24, 2010.

On October 10, 2013, Whidbee filed a complaint in Washington state court against Pierce County and Allen, alleging claims under 42 U.S.C. § 1983 and state law. “The applicable statute of limitations for actions brought pursuant to 42 U.S.C. § 1983 is the forum state’s statute of limitations for personal injury actions.” Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003). Therefore, Washington’s three-year personal injury statute of limitations applied to all of Whidbee’s claims. Under Washington law, the time within which to bring an action is tolled while a person is in custody. See Wash. Rev. Code § 4.16.190. Therefore, the parties agree that Whidbee had until November 24, 2013 to commence his § 1983 and state-law personal injury claims and that his complaint was timely. See id. §§ 4.16.080, 4.16.170.

After timely filing his complaint, Whid-bee had 90 days, until January 8, 2014, to serve Pierce County or Allen with process. See id. § 4.16.170. Whidbee failed to do so. Whidbee’s process server, ABC Legal Services, Inc., served the Pierce County Risk Management Office with a copy of Whid-bee’s state court summons and complaint, but failed to serve the summons on the Pierce County Auditor, as required by state law. See id. § 4.28.080(1). ABC Legal Services also failed to serve Allen. See id. § 4.28.080(16). Indeed, ABC Legal Services did not serve Allen until April 2014 and did not serve the Pierce County Auditor until August 2014. As a result, the time for commencing an action against the County and Allen expired on January 8, 2014. See id. §§ 4.16.170, 4.16.080.

In May 2014, Allen and Pierce County removed the case to federal court and moved to dismiss, arguing, among other things, that Whidbee failed to commence the action within the statute of limitations period prior to removal. The district court granted the motion.

On appeal, Whidbee raises two arguments. First, he argues that once his case was removed to federal court, he had an additional 120 days to serve process on the defendants under 28 U.S.C. § 1448 and Rule 4(m) of the Federal Rules of Civil Procedure. Because he served process on Allen and Pierce County within the additional 120 days, Whidbee contends, his action commenced before the time for bringing his action had expired. Second, Whidbee argues that, because he substantially complied with the federal requirements for service of process when he served the Pierce County Risk Management Office with a copy of his state court summons, he should be deemed' to have served Pierce County within 90 days after filing his complaint.

Ill

Our analysis of Whidbee’s arguments requires consideration of how federal courts address service of process and statute of limitations defenses in state cases that have been removed to federal court. We review de novo whether a case should be dismissed on statute of limitations grounds. Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003).

When a case is removed from state court to federal court, the question whether service of process was sufficient prior to removal is governed by state law. See Lee v. City of Beaumont, 12 F.3d 933, 936-37 (9th Cir. 1993), overruled on other grounds by Cal. Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008). However, in “all cases removed from any State court to any district court of the United States,” a plaintiff may serve process upon removal if service of process was defective or was not attempted before removal. 28 U.S.C. § 1448 (emphasis added). By allowing plaintiffs to serve process on defendants after removal, this statute ensures that all defendants are apprised “of the pendency of the action” in federal court and are afforded “an opportunity to present their objections,” so as to meet the requirements of due process.' Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

The Federal Rules of Civil Procedure govern service of process in federal court, see Fed. R. Civ. P. 4, and apply to a civil action after removal, see Fed. R. Civ. P. 81(c)(1). “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (quoting United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)). Thus, unlike Washington law, federal law does not require strict compliance with service requirements.

At the time Whidbee’s case was removed to federal court, Rule 4(m) provided:

If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m) (2014). Therefore, once a case is removed to federal court, a plaintiff has a specified number of days to effect service of process on all defendants, regardless whether the plaintiff failed to serve process in state court before the deadline for commencing an action had passed.

Although § 1448 and Rule 4(m) give plaintiffs additional time to effect service of process, these rules do not extend or revive a state statute of limitations that expired before removal. If the period of time for bringing an action expired under state law before the action was removed to federal court, a defendant can raise the state statute of limitations as an affirmative defense in federal court. See Fed. R. Civ. P. 8(c), 81(c). Moreover, “[t]he length of the limitations period, and closely related questions of tolling and application, are to be governed by state law.” Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999) (quoting Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)). Because it must give effect to the state’s statute of limitations, a federal court has no authority to extend the state-defined period in which a plaintiff can bring an action, even though the court must extend the time in which a plaintiff can serve process on defendants under § 1448.

The Third and Eighth Circuits have likewise concluded that a federal court does not have the authority to give a plaintiff additional time to bring an action that expired under state law prior to removal. See Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 166-68 (3d Cir. 1976); Marshall v. Warwick, 155 F.3d 1027, 1033 (8th Cir. 1998). While we agree with the conclusion in these cases, we do not agree with their reasoning. In Witherow, the plaintiff failed to serve the defendant properly under Pennsylvania law within the statute of limitations period before the defendant removed the action to federal court. 530 F.2d at 168. The Third Circuit affirmed the dismissal of the action, holding that the plaintiff was not entitled to serve process on the defendant after removal. In reaching this conclusion, the Third Circuit referenced, but did not interpret, the language of § 1448, and instead reasoned that “[t]o apply [§ 1448] to the circumstances of this case would constitute that statute a pro tanto abrogation of Pennsylvania’s statute of limitations.” Id. at 167. Similarly, in Marshall, the plaintiff failed to serve the defendant under South Dakota law within the statute of limitations period before removal to federal court. 155 F.3d at 1033. The Eighth Circuit followed Witherow and affirmed the district court’s dismissal based on insufficient service of process. Id.

The conclusion in Witherow and Marshall—that a plaintiff cannot serve process in federal court if process was untimely in state court for purposes of a state statute of limitations-—-is contrary to the plain language of § 1448, which allows for service of process in “all cases removed from any State court to any district court of the United States.” (Emphasis added). Moreover, it conflates service of process with the statute of limitations, which serve quite different functions: service of process provides defendants with sufficient notice “to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” Mullane, 339 U.S. at 314, 70 S.Ct. 652, while statutes of limitations “prevent! ] surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared,” Gabelli v. SEC, 568 U.S. 442, 133 S.Ct. 1216, 1221, 185 L.Ed.2d 297 (2013) (quoting R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 88 L.Ed. 788 (1944)). There is no basis in federal law for holding that the expiration of a state statute of limitations bars a plaintiff from notifying all defendants that they are subject to suit; even if a claim has expired under a state statute of limitations, a defendant can still waive this affirmative defense. Therefore, we agree with Witherow and Marshall only to the extent they hold that removal to federal court cannot extend or revive a state statute of limitations that expired prior to removal.

IV

We now turn to Whidbee’s arguments. First, Whidbee claims that he commenced his action within the time required under Washington law because he served process on Allen and Pierce County within the additional 120 days provided by § 1448. We reject this argument because, as in Witherow and Marshall, it conflates federal service of process with the state statute of limitations. Although § 1448 and Rule 4(m) allowed Whidbee to serve process on Allen and Pierce County after removal, these laws do not change the period of time for commencing an action under the state statute of limitations. Because that time for commencing the action expired before the case was removed to federal court, the defendants were entitled to raise the state statute of limitations as an affirmative defense. Whidbee did not assert any other ground for tolling the statute of limitations to the district court, and therefore waived any such arguments.

We also reject Whidbee’s argument that his service on the Pierce County Risk Management Office prior to removal should be construed as sufficient service on Pierce County under the more flexible federal service of process requirements. The sufficiency of Whidbee’s pre-removal service of process is governed by Washington law, not by Rule 4 of the Federal Rules of Civil Procedure. See Lee, 12 F.3d at 936-37. Whidbee does not (and cannot) argue that his pre-removal service of process complied with Washington law. Accordingly, the district court properly dismissed Whidbee’s claims on the ground that they were time barred before his case was removed.

AFFIRMED.

      . Section 4.16.170 of the Revised Code of Washington is titled "Tolling of statute—Actions, when deemed commenced or not commenced” and states in full:
      For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or corn-menee service by publication within ninety days from the date of filing the complaint. If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.

      . 28 U.S.C. § 1448 states in full:
      In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.

      . Effective December 1, 2015, Rule 4(m) was amended to require service of process within 90 days, rather than 120 days, of the filing of the complaint.

      . The district court also dismissed the action on the ground that Whidbee could not perfect service of process under 28 U.S.C. § 1448 after removal, relying on Witherow and Marshall. Although this reasoning was incorrect, we may affirm the district court on any basis supported by the record. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987).