§4.6 Analysis

• Jurisdiction: Washington

§4.6 ANALYSIS

This section examines the prerequisites for a summons and service of process in civil actions other than domestic relations actions (which are governed by CR 4.1) and certain other types of special proceedings such as unlawful detainer (RCW 59.12.080) and registration of land titles (RCW 65.12.125).

(1)CR 4(a)

This subsection analyzes application of CR 4(a).

(a)The summons

CR 4(a)(1) requires that the summons be signed and dated by the plaintiff or the plaintiff's counsel and be directed to the defendant. The summons must state that the defendant is required to defend the action and serve a copy of that defense on the person who has signed the summons. CR 4(a)(2) and CR 4(b) contain additional requirements for the contents of a summons.

Practice Tip: Although CR 4(a) permits either the plaintiff or the plaintiff 's counsel to sign the summons, the plaintiff 's counsel should do so to ensure future communications will be directed to counsel.

(b)Defendant is required to respond in 20 days

Under CR 4(a)(2), a summons must state that the defendant is required to defend the action within 20 days after service, unless some other period is provided by statute or rule. The day the summons is served is not counted in computing the 20-day period. Corliss v. McFerran, 115 Wash. 56, 57, 196 P. 583 (1921); see CR 6(a).

(c)Defendant's entry of appearance

CR 4(a)(3) governs the defendant's service of a notice of appearance in response to a summons. The defendant should serve such notice upon the person who signed the summons as a precaution against default. Under CR 55(a)(2), if the defendant files a notice of appearance, the defendant is permitted to file a responsive pleading, thereby avoiding default, at any time before a hearing on the plaintiff's motion for default. If the defendant fails to file a notice of appearance or fails to answer the complaint in a timely manner, the defendant may not file a responsive pleading without leave of court. Consequently, it is good practice for defense counsel to serve and file a notice of appearance in all cases. Filing a notice of appearance will not result in waiver of any personal jurisdiction defenses.

The federal rules do not contain a provision similar to CR 55(a) (2), so filing of a notice of appearance in federal court will not protect a defendant against default unless local federal rules provide otherwise. The practice in federal courts in Washington conforms to the state rules. See, e.g., W.D. Wash. LCR 55(a); E.D. Wash. LR 55.1(a). Thus, most defendants in federal actions in Washington file and serve a notice of appearance to notify other parties who is representing them.

(d) Counterclaims and cross claims

The defendant does not need to serve a summons when filing a counterclaim or cross claim against a person who is already a party to the litigation but must do so when asserting a third-party claim. CR 4(a)(4); see Lindgren v. Lindgren, 58 Wn.App. 588, 597, 794 P.2d 526 (1990), review denied, 116 Wn.2d 1009 (1991). CR 5 governs service of counterclaims and cross claims. CR 14 addresses third-party actions.

(2)CR 4(b)

CR 4(b) requires that the summons contain (1) the title of the cause, including the name of the state court and county in which the action is brought and the names of the parties; (2) a direction to serve a copy of the defendant's defense within the time stated in the summons; and (3) a notice to the defendant that failure to defend will result in a default judgment. The summons must be signed and dated and must include an address at which papers may be served by mail. The plaintiff must name all of the defendants when there are more than one.

Practice Tip: The best way to avoid running afoul of the summons requirements in CR 4(b) is to use the form contained in the text of the rule. Preprinted forms are available.

(3)CR 4(c)

CR 4(c) requires that personal service shall be made either by the county sheriff or deputy or by any nonparty who is over 18 years of age and is competent to be a witness in the action. A person who is over 18 is competent to be a witness if that person is "of sound mind and discretion." RCW 5.60.020. Persons are not "competent," however, if they are of unsound mind or intoxicated at the time of their examination, or if they "appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly." RCW 5.60.050.

Comment: Note that CR 4(c) requires only that the person serving process be 18, while CR 4(i) requires that the person serving process in a foreign country be 21.

A party cannot serve process under CR 4(c). Crouch v. Friedman, 51 Wn.App. 731, 733, 754 P.2d 1299 (1988). The rule references CR 45 for service of the subpoena.

Service can a be a two-step process when the process server accidently serves a third party, but the third party delivers the summons and complaint on the actual defendant. Brown-Edwards v. Powell, 144 Wn.App. 109, 112, 182 P.3d 441 (2008). For such two-step service to be upheld, the third party must satisfy the CR 4(c) requirements and sign an affidavit of service. Id. at 113.

(4)CR 4(d)

Prior to 1978, CR 4(d) permitted the plaintiff to serve the summons and complaint separately. In 1978, however, the rule was amended to conform to the federal practice, and it now requires the plaintiff to serve the summons and complaint together. Service of one without the other is not sufficient to gain jurisdiction over a defendant. Although service of a summons alone may not create jurisdiction over a defendant, it is significant with respect to the statute of limitations and the jurisdiction of the court. See Nearing v. Golden State Foods Corp., 114 Wn.2d 817, 820-23, 792 P.2d 500 (1990). See also §3.6(2) and (3) in Chapter 3. (Rule 3.Commencement of Action) of this deskbook.

Practice Tip: Serve the original of the summons and a copy of the complaint on the defendant and file a copy of the summons and the original complaint with the court. See Johnson v. Asotin County, 3 Wn.App. 659, 660-62, 477 P.2d 207 (1970).

The statutes referenced in CR 4(d)(2) contain requirements for personal service in Washington. The following sections summarize those requirements, but you should carefully review the relevant statutes for further detail. Adefendant also can agree to accept service of process in a manner not specified in the statute. Thayer v. Edmonds, 8 Wn.App. 36, 41-42, 503 P.2d 1110 (1972), review denied, 82 Wn.2d 1001 (1973).However, the time, place, and manner of alternative service must be clearly agreed upon, and the defendant must knowingly relinquish its right to proper service. Gross v. Sunding, 139 Wn.App. 54, 61-62, 161 P.3d 380 (2007).

(a)Individuals

An individual should be served by giving him or her the summons and the complaint, or by leaving them at the individual's house of usual abode with some person of suitable age and discretion who resides there. RCW 4.28.080(15). The term "house of usual abode" means "such center of one's domestic activity that service left with a family member is reasonably calculated to come to one's attention within the statutory period for [the] defendant to appear." Sheldon v. Fettig, 129 Wn.2d 601, 610, 919 P.2d 1209 (1996) (internal quotation marks and citations omitted). The statute does not restrict service to certain days of the week or certain hours of the day. RCW 4.28.080(15).

In addition to leaving the summons and complaint at the individual's house of usual abode, if the defendant cannot be served personally with reasonable diligence, he or she may also be served by leaving the papers at the defendant's usual mailing address with some person of suitable age and discretion who is a resident, proprietor, or agent. A copy of the summons and complaint must also be mailed to the same address, and service is effective on the 10th day after the required mailing. According to RCW 4.28.080(16), the "usual mailing address" does not include the individual's place of employment or a United States post office box. Serving a suitable individual at defendant's private mail drop (in this instance a mailbox maintained at a mini-storage facility) constituted proper service when the defendant could not be served by any other means. Wright v. B&L Props., Inc., 113 Wn.App. 450, 464, 53 P.3d 1041 (2002), review denied, 149 Wn.2d 1014 (2003). However, the private mail drop must be the defendant's usual mailing address. Goettemoeller v. Twist, 161 Wn.App. 103, 109-10, 253 P.3d 405 (2011).

The summons and complaint need not be placed in the defendant's hand. For example, if a process server tries to hand the defendant the summons, the defendant slams the door on the server, and the server then leaves the summons in the door, service is effective. See United Pac. Ins. Co. v. Discount Co., 15 Wn.App. 559, 561-62, 550 P.2d 699 (1976).

See cases cited in §4.7, below, for discussion of the circumstances in which service has been found to be proper and improper.

(b)Corporations or companies

The requirements for serving corporations and companies differ depending on whether they are domestic or foreign entities and, in some cases, on the nature of the business. See RCW 4.28.080(4)-(10). If a domestic or foreign company does business in Washington, you can ascertain the identity of its registered agent from the Office of the Secretary of State in Olympia, Washington. When either a domestic or foreign corporation is in receivership, the plaintiff should serve the receiver. RCW 7.60.210.

In a suit against a domestic corporation or company, the plaintiff may serve its president or other head officer, its registered agent, its secretary, its cashier, its managing agent, or the secretary, stenographer, or office assistant of any of the above. RCW 4.28.080(9); RCW 23B.05.040. The...