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Vermillion v. City of Lacey

United States District Court, W.D. Washington

January 25, 2018



          ROBERT J. BRYAN United States District Judge

         THIS MATTER comes before the Court on the Motion to Dismiss/Summary Judgment filed by Chris Packard and Thurston County (collectively, “the Thurston County Defendants”). Dkt. 34. The Court has reviewed the motion and the remainder of the file herein.


         This 28 U.S.C. §1983 case arises from Plaintiff's negative encounter with law enforcement on July 4, 2014. Plaintiff e-filed the Complaint on July 5, 2017, the last day to file under the applicable three year statute of limitations, given the July 4th holiday. Dkts. 1-2, 1-9.

         See discussion, Dkt. 24 at 3-6. The Complaint named as defendants Lacey Police Department and “Chris Packard c/o Lacey Police Department, ” both with the same mailing address of 420 College St. SE, Lacey, Washington. Dkt. 1-2 at 1.

         On September 14, 2017, Donald R. Peters, Jr., Senior Deputy Prosecuting Attorney for Thurston County, entered a Special Notice of Appearance on behalf of Chris Packard, “without waiving objections as to improper service, jurisdiction, or venue.” Dkt. at 10. The notice “directs that all notices and pleadings other than original process . . . be served upon said attorneys at the below address.” Id. at 2. An Answer filed on behalf of Defendant Packard also raises affirmative defenses of service of process and statute of limitations. Dkt. 14 at 2. Mr. Peters first became aware of the lawsuit against Defendant Packard on September 1, 2017, when he received an email from counsel to the City of Lacey advising of the lawsuit. Dkt. 49-1.

         On October 24, 2017, Plaintiff filed a signed letter, addressed to the Court, that explains Plaintiff's attempts at service of process. Dkt. 21 at 1. Plaintiff writes, “I believe I followed the rules correctly, however, I am not an attorney . . . . Here is my proof. If I am wrong, I am asking for an extension on the proper way to serve these entities and with an attorney present.” Attached to the letter are what Plaintiff describes as “copies of the receipts of service to John E Justice, Donald R Peters Jr, sent to The City Clerk 420 College St. SE, Lacey, WA 98503.” Id. see Id. at 2-11. A certified mail receipt shows delivery to that address on August 25, 2017. See id. at 2, 7.

         On November 2, 2017, the Court issued an Order on a Motion for Summary Judgment filed by Defendant City of Lacey, finding that “Lacey Police Department” is not a properly-named defendant. Dkt. 24 at 8. The Court directed dismissal of Lacey Police Department from the case if Plaintiff failed to file an amended complaint properly naming the City of Lacey. Id. Plaintiff filed the Amended Complaint on November 20, 2017 and named three defendants: (1) “Lacey Police Department and City of Lacey, ” located at 420 College St. SE in Lacey, Washington; (2) “Chris Packard c/o -Officer, ” located at 2000 Lakeridge Dr. SW in Olympia, Washington; and (3) “Thurston County a Political subdivision of the State of WA (Sheriff's Depart.), ” also located at 2000 Lakeridge Dr. SW in Olympia, Washington. Dkt. 28 at 2. The Amended Complaint alleges substantially the same set of facts. See Dkts. 1-2 and 28.

         On December 13, 2017, all parties filed a Joint Status Report. Dkt. 41 at 7. Mr. Peters noted that he “declined to participate in 26(f) Conference-no jurisdiction over Thurston County defendants[.]” Id. A Scheduling Order issued December 15, 2017, sets out a case schedule, including a discovery deadline of July 2, 2018, and jury trial date of October 29, 2018. Dkt. 42.

         The Thurston County Defendants filed this Motion to Dismiss/Summary Judgment on December 1, 2017. Dkt. 34. The motion seeks dismissal based on lack of service of process and the failure to initiate the action within the statute of limitations. Id. The motion also raises arguments particular to Defendant Thurston County, because it was not named in the Complaint and was only later added in the Amended Complaint. Id.


         A. Service of process on Defendant Packard and Defendant Thurston County.

         1. Improper means of service of process.

         By certified mail received on August 25 2017, Plaintiff attempted to serve the pleadings on Defendant Packard. Dkt. 21. Service by certified mail is an insufficient means to serve Defendant Packard under Fed.R.Civ.P. 4. Defendant Packard has raised lack of service of process as an affirmative defense in his Answer. See Dkt. 14. The ...

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