United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Court
the Court is Plaintiff Canal Insurance Company's
("Canal") Motion for an Order Permitting Service by
Publication. Dkt. # 9. For the reasons below, the Court
DENIES the motion.
action arises out of a King County Superior Court lawsuit
regarding an accident that occurred in Seattle on January 30,
2016. Dkt. # 1. Defendants Yohannes Ewnetu and Temesgen
Mengeste were LLC members of Alpha Intermodal LLC, a trucking
company. Id., ¶ 3.6. Mengeste brought the King
County action, alleging he was seriously and permanently
injured when a semi-truck driven by Ewnetu drove over his
legs. Id., ¶ 3.12; Dkt. # 8, ¶ 3.12.
claims that Ewnetu is entitled to coverage under an insurance
policy issued by Canal to Alpha Intermodal LLC. Id.,
¶ 1.1. Canal disputes coverage and brings this lawsuit
seeking declaratory relief. Id., ¶¶ 4.3,
4.4. Canal further states that, despite reasonable efforts to
serve Mengeste, it has been unable to locate him. Dkt. #10.
Canal now seeks an order from this Court permitting service
on Ewnetu by publication. Dkt. # 10.
attempted to serve Ewnetu with the Summons and Complaint
using a process server, but was unable to locate him. Dkt. #
10, ¶ 4. Following that attempt, Canal's counsel
sent the Summons and Complaint to Ewnetu by certified and
regular mail on January 31, 2019 to the address last known to
Canal. Id. According to the tracking history for the
certified letter, notice was left at that address on February
2nd, it was not claimed, and it was returned to Canal's
counsel on March 12th. Id. Counsel further states
that Mengeste had similar issues trying to serve Ewnetu in
the underlying King County action. Id., ¶ 5.
Canal now argues that Federal Rule of Civil Procedure 4 and
RCW 4.28.100 permit service on Ewentu by publication. Dkt. #
9 at 4-7.
Rule of Civil Procedure 4 allows for service on individuals
by complying with state law regarding service. Fed.R.Civ.P.
4(e). Washington's statute on publication by service, RCW
4.28.100, permits the following:
When the defendant cannot be found within the state, and upon
the filing of an affidavit of the plaintiff, his agent, or
attorney, with the clerk of the court, stating that he
believes that the defendant is not a resident of the state,
or cannot be found therein ... the service may be made by
publication of the summons ... in any of the following cases:
(2). When the defendant, being a resident of this state, has
departed therefrom with intent to defraud his creditors, or
to avoid the service of a summons, or keeps himself concealed
therein with like intent
courts have also held that, when a plaintiff possesses
information that might reasonably assist in determining a
defendant's whereabouts but fails to pursue that
information, the plaintiff has not made an honest and
reasonable effort to permit service by publication. Boes
v. Bisiar, 94 P.3d 975, 979 (Wash. App. 2004);
Brenner v. Port of Bellingham, 765 P.2d 1333 (Wash.
App. 1989). To comply with RCW 4.28.100, a plaintiff must
make an honest and reasonable effort to find the defendant.
Carson v. Northstar Development Co., 814 P.2d 217
(Wash. App. 1991). For this reason, an affidavit supporting
service by publication should identify steps taken to
personally serve the defendant and should demonstrate
reasonably diligent efforts to serve the defendant.
Charboneau Excavating, Inc. v. Turnipseed, 75 P.3d
1011 (2003) (finding plaintiff did not exercise reasonable
diligence where it had not followed up on information
regarding the defendant's location); Bruffv.
Main, 943 P.2d 295 (Wash. App. 1997). A plaintiff need
not exhaust all conceivable means of personal service before
service by publication. Carson, 814 P.2d at 221.
"A plaintiff need only follow up on that information
possessed by the plaintiff which might reasonably assist in
determining a defendant's whereabouts." Id.
the evidence provided by Canal in support of the motion
indicates that Ewnetu's sister told investigators that he
moved back to Ethiopia. Dkt. # 10 at 17. Canal fails to
indicate what efforts were used in trying to locate and serve
Ewentu in Ethiopia and instead concludes, based on a
declaration from Mengeste's counsel, that Ewentu departed
Washington "with intent to defraud his or her creditors,
or to avoid the service of a summons, or keeps himself or
herself concealed therein with like intent." Dkt. # 10,
¶ 7. However, conclusory allegations and bare
recitations of the statutory factors are insufficient to
permit service by publication. Bruff, 943 P.2d at
297 (denying motion for service by publication where
affidavits contained no facts clearly suggesting that
defendant's change of residence, or any other conduct,
was undertaken with the intent required by RCW 4.28.100(2)).
Without more, there is little to suggest that Ewentu took any
action with the intent to avoid service in ...