§3.6 Analysis

• Jurisdiction: Washington

§3.6 ANALYSIS

This section examines the requirements and implications of commencing a civil action and discusses the statutes cited in CR 3.

(1)CR 3(a): Commencement of action

Under CR 3(a), except for domestic relations actions addressed by CR 4.1, the plaintiff commences an action by filing the complaint or by serving the defendant with both the summons and the complaint. Once the action is commenced, the court acquires jurisdiction for purposes of subsequent proceedings. RCW 4.28.020; see also Seattle Seahawks, Inc. v. King County, 128 Wn.2d 915, 917, 913 P.2d 375 (1996). If the plaintiff serves the defendant before filing the complaint, the defendant may require the plaintiff to file the summons and complaint within 14 days after service of that demand. CR 3(a).

CR 3(a) controls the commencement of an action for some purposes, such as starting the time period within which a defendant must answer or be subject to default. However, as made clear by the final sentence of CR 3(a), RCW 4.16.170 governs the commencement of an action for the purpose of tolling an expiring statute of limitations. See §3.6(2)(a), below.

(2)CR 3(b): Tolling the statute of limitations

The statute of limitations may be tolled by commencement of an action or other means, as discussed below.

(a)Tolling the statute of limitations by commencing an action

RCW 4.16.170 provides as follows:

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.

Although the rule no longer requires the plaintiff to serve the defendant within 90 days of filing, RCW 4.16.170 requires the plaintiff to serve the defendant, or (in the case of multiple defendants) at least one defendant within 90 days for the filing to effectively toll an expiring statute of limitations.

Example A: If the plaintiff serves the defendant on day 1, the plaintiff may file the summons and complaint on day 92, as long as the limitation period does not expire until after day 92.

Example B: If the plaintiff files the complaint on day 1 and the statute of limitations expires before day 90, the plaintiff must serve the summons and complaint on the defendant on or before day 90.

Example C: If the plaintiff files the complaint on day 1, the statute of limitations expires before day 90, and there are multiple defendants, the plaintiff must serve at least one of the defendants on or before day 90.

Under RCW 4.16.170, either serving the summons or filing the complaint tolls an expiring statute of limitations as long as both occur within a 90-day period. For statute of limitations purposes, the action is "tentatively" commenced upon filing of the complaint or service of the summons. See, e.g., Nearing v. Golden State Foods Corp., 114 Wn.2d 817, 820, 792 P.2d 500 (1990); Pac. Erectors, Inc. v. Gall Landau Young Constr. Co., 62 Wn.App. 158, 164, 813 P.2d 1243 (1991), review denied, 118 Wn.2d 1015 (1992). Although CR 3(a) requires service of both the complaint and the summons to commence the action for other purposes, RCW 4.16.170 requires only service of the summons to toll the running of the limitation period. Nearing, 114 Wn.2d at 820-22. Filing the complaint without the summons also will toll the limitation period. Citizens Interested in the Transfusion of Yesteryear v. Bd. of Regents of Univ. of Wash., 86 Wn.2d 323, 329, 544 P.2d 740 (1976), overruled on other grounds by Jones v. Stebbins, 122 Wn.2d 471, 860 P.2d 1009 (1993).

Practice Tip: Although RCW 4.16.170 tolls the statute of limitations upon service of the summons by itself, you should strongly consider serving the summons and complaint together.

RCW 4.16.170 does not apply unless the statute of limitations expires before service and filing are completed. If the plaintiff does not serve and file within 90 days of each other but does both within the limitation period, the plaintiff has properly commenced the action. Seamans v. Walgren, 82 Wn.2d 771, 776, 514 P.2d 166 (1973); Hansen v. Watson, 16 Wn.App. 891, 893, 559 P.2d 1375, review denied, 88 Wn.2d 1018 (1977).

The 90-day period in which the plaintiff must serve and file commences on the date the plaintiff files the complaint or serves the summons, whichever is first, not on the date the statutory period would otherwise have run. Derendy v. Kumbera, 45 Wn.App. 485, 487, 726 P.2d 34, review denied, 106 Wn.2d 1009 (1986). There is no precedent for the extension of the 90-day period on a showing of good cause. See Broad v. Mannesmann Anlagenbau, A.G., 141 Wn.2d 670, 686, 10 P.3d 371 (2000), opinion after certified question answered, 10 F. App'x 543 (2001); Patrick v. DeYoung, 45 Wn.App. 103, 107-08, 724 P.2d 1064 (1986), review denied, 107 Wn.2d 1023 (1987).

Because filing the complaint...