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Walker v. Orkin, LLC

Court of Appeals of Washington, Division 1

September 16, 2019

NICHOLAS WALKER, a married man, Respondent,
v.
ORKIN, LLC, a Delaware limited liability company, Appellant.

          SCHINDLER, J.

         Under CR 3, an action is commenced by serving a copy of the summons and a copy of the complaint as provided in CR 4. CR 4(a)(1) states, "The summons must be signed and dated by the plaintiff or the plaintiff's attorney." There is no dispute that Nicholas Walker served Orkin LLC with a copy of a summons that was not signed. Orkin filed an answer, asserting insufficient service of process. We granted discretionary review of the superior court order denying the motion to dismiss the lawsuit for insufficient service of process. Because Walker did not correct the defect by serving a signed copy of the summons on Orkin before the expiration of the statute of limitations or timely file a motion to amend the summons to correct the defect, we reverse and remand for entry of an order dismissing the lawsuit.

         The procedural facts are not in dispute. On July 28, 2017, Nicholas Walker filed a summons and a complaint for personal injury damages against Orkin LLC. The summons is signed by his attorney and dated July 27, 2017. The complaint is signed by the attorney and dated July 28, 2017.

         The personal injury complaint alleged that on August 8, 2014, Walker was injured in a vehicle collision. Walker alleged the Orkin driver was negligent and his negligence was the proximate cause of Walker's damages. The statute of limitations for a personal injury action is three years. RCW 4.16.080(2). If a plaintiff files a complaint within the three-year period, the statute of limitations is tolled for 90 days to allow the plaintiff to serve the defendant. RCW 4.16.170 provides:

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 commence 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.

         The complaint Walker filed on July 28, 2017 tolled the three-year statute of limitations for 90 days or until October 26, 2017 to serve Orkin. On August 1, Walker served the Orkin registered agent with a copy of a summons and a copy of the complaint. The copy of the summons is dated July 27, 2017 but is not signed. The copy of the complaint is not dated or signed. The next day, Walker's attorney sent a fax to Orkin attaching the "copy of the Summons and Complaint which were served on Orkin."

         On September 7, Orkin filed an answer to the complaint. Orkin denied the allegations. Orkin asserted as an affirmative defense that "Plaintiff has failed to serve Defendant with process under Washington law." Walker did not correct the defect and serve Orkin with a copy of the signed summons before the expiration of the statute of limitations on October 26, 2017.

         On November 6, Orkin filed a CR 12(b) motion to dismiss the lawsuit for insufficient service of process within the statute of limitations. Orkin argued Walker did not comply with the court rules for service of process before the expiration of the statute of limitations on October 26, 2017. Orkin asserted that contrary to CR 4(a)(1), Walker did not serve it with a copy of a signed summons.

         Walker argued he complied with CR 4 by signing the summons and complaint filed on July 28, 2017. Walker also argued serving Orkin with an unsigned copy of the summons did not result in prejudice to Orkin.

         The court denied the motion to dismiss. We granted the motion for discretionary review under RAP 2.3(b)(1).

         Orkin contends the superior court erred in denying the motion to dismiss the lawsuit for failure to comply with the requirements of CR 4.

         Proper service of the summons and complaint is an essential prerequisite to obtaining personal jurisdiction. Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014). Service of process must comply with constitutional, statutory, and court rule requirements. Scanlan, 181 Wn.2d at 847. The plaintiff bears the initial burden to prove sufficient service. Scanlan, 181 Wn.2d at 847. The party challenging service of process must demonstrate by clear and convincing evidence that service was improper. Scanlan, 181 Wn.2d at 847. We review whether service was proper de novo. Scanlan, 181 Wn.2d at 847.

         We review the interpretation of court rules de novo. Jafar v. Webb, 177 Wn.2d 520, 526, 303 P.3d 1042 (2013). Court rules are interpreted in the same manner as statutes. Jafar, 177 Wn.2d at 526. If the rule's meaning is plain on its face, we must give effect to that meaning as an expression of the drafter's intent. Jafar, 177 Wn.2d at 526. We discern plain meaning from the plain language of the court rules. Columbia Riverkeeper v. Port of Vancouver, 188 Wn.2d 421, 432, 395 P.3d 1031 (2017). We read the rule" 'as a whole, harmonizing its provisions, and using related rules to help identify the legislative intent embodied in the rule.'" Jafar, 177 Wn.2d at 526-27 (quoting State v. Chhom, 162 Wn.2d 451, 458, 173 P.3d 234 (2007)). If the plain language of the rule is subject to only one interpretation, the court's inquiry is at an end. Lake v. Woodcreek Homeowners Ass'n., 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).

         CR 3 governs commencement of an action. CR 3(a) states, in pertinent part, "[A] civil action is commenced by service of a copy of a summons together with a copy of a complaint, as provided in rule 4 or by filing a complaint" as provided in RCW4.16.170.[1]

         Orkin concedes that under RCW 4.16.170, Walker tentatively commenced the action by filing the complaint on July 28, 2017 and the statute of limitations was tolled for 90 days to serve Orkin. Walker served the registered agent for Orkin on August 1. Orkin does not challenge the manner of service or claim prejudice. Orkin asserts Walker did not commence the lawsuit within the statute of limitations because ...


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