Chapter §4.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§4.7 SIGNIFICANT AUTHORITIES

(1)CR 4(a)

A plaintiff must "substantially comply" with the requirements of CR 4(a). An action will not be dismissed for harmless errors regarding the summons. Wagnitz v. Ritter, 31 Wash. 343, 350, 71 P. 1035 (1903).

(2)CR 4(b)

The summons should provide the full name of the parties, but failure to include the first name of a party does not invalidate the summons as long as the party is clearly identifiable. Gravelle v. Canadian & Am. Mortgage & Trust Co., 42 Wash. 457, 85 P. 36 (1906), modified, 45 Wash. 698 (1907).

(3)CR 4(c)

A plaintiff may not serve process. In re Marriage of Logg, 74 Wn.App. 781, 784, 875 P.2d 647 (1994); Crouch v. Friedman, 51 Wn. App.731, 733, 754 P.2d 1299 (1988). A plaintiff's attorney, however, may serve the summons and complaint. Roth v. Nash, 19 Wn.2d 731, 737- 38, 144 P.2d 271 (1943).

Comment: Service of process by an attorney may result in the attorney's being called as a witness.

A nonparty officer or employee of a corporation that is a party to an action may serve process. Columbia Valley Credit Exch., Inc. v. Lampson, 12 Wn.App. 952, 956, 533 P.2d 152, review denied, 85 Wn.2d 1018 (1975).

A person who serves process is competent as a witness if the person understands the nature of an oath and is capable of giving a correct account of what he or she has seen and heard. State v. Moorison, 43 Wn.2d 23, 27, 259 P.2d 1105 (1953). A person is not incompetent simply because of a conviction for a crime, unless the crime is perjury. Mullin v. Builders Dev. & Fin. Serv., Inc., 62 Wn.2d 202, 207-10, 381 P.2d 970 (1963); RCW 5.60.050.

(4)CR 4(d)

(a)In general

Rules regarding service are designed to give the defendant notice of the proceedings that have been brought. Notice must be reasonably certain to apprise the defendant of the pending action and afford the defendant an opportunity to respond. Ashley v. Superior Court In & For Pierce Cnty., 83 Wn.2d 630, 635, 521 P.2d 711 (1974). Until such notice is provided, the court has no jurisdiction to proceed against the defendant. Ware v. Phillips, 77 Wn.2d 879, 882, 468 P.2d 444 (1970). To proceed without proper notice would offend due process. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S. Ct. 652, 94 L. Ed. 865 (1950). A default judgment that is entered without valid service is void and may be vacated regardless of the passage of time. John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 370-71, 83 P.2d 221 (1938); Brenner v. Port of Bellingham, 53 Wn.App. 182, 188, 765 P.2d 1333 (1989).

Personal service statutes require "substantial compliance" and are construed to carry out the intent of the legislature. Martin v. Triol, 121 Wn.2d 135, 143-44, 847 P.2d 471 (1993). "Substantial compliance" has been defined as "actual compliance in respect to the substance essential to every reasonable objective of [a] statute." O'Neill v. Farmers Ins. Co. of Wash., 124 Wn.App. 516, 524, 125 P.3d 134 (2004) (quoting Weiss v. Glemp, 127 Wn.2d 726, 903 P.2d 455 (1995) (internal citations omitted)). Aplaintiff should serve process as provided in RCW 4.28.080 and other statutes. The fact that a defendant actually receives process does not establish valid service. Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 177, 744 P.2d 1032 (1987), as amended, 750 P.2d 254 (1988). Although the court may waive portions of the rule if another method of notice is effective, substantial compliance with the rule is required. Ashley, 83 Wn.2d at 636-37.

(b)Individuals

The general rule is that a defendant may be served personally, or "at the house of his or her usual abode with some person of suitable age and discretion ...." RCW 4.28.080. 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) (quoting Sheldon v. Fettig, 77 Wn.App. 775, 781, 893 P.2d 1136, review granted, 127 Wn.2d 1016 (1995)).

An individual's "house of usual abode" includes the roadway leading to the house. Lino v. Hole, 159 Wash. 16, 18, 291 P. 1079 (1930). It does not include a person's place of business. Hoffman v. Spokane Jobbers Ass'n, 54 Wash. 179, 183, 102 P. 1045 (1909); French v. Gabriel, 57 Wn.App. 217, 225, 788 P.2d 569 (1990), aff'd, 116 Wn.2d 584, 806 P.2d 1234 (1991). An individual's "house of usual abode" is not necessarily the address on his or her driver's license. Streeter-Dybdahl v. Nguyet Huynh, 157 Wn.App. 408, 414, 236 P.3d 986 (2010), review denied, 170 Wn.2d 1026 (2011).

An unmarried college student's house of usual abode may be the home of the student's parents. See Romjue v. Fairchild, 60 Wn.App. 278, 282, 803 P.2d 57, review denied, 116 Wn.2d 1026 (1991). Service on the defendants' son at the son's home, however, did not amount to serving the defendants, who did not reside with their son. Mid-City Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wn.App. 480, 484, 674 P.2d 1271 (1984). Similarly, service on a defendant's parent at the parent's house does not amount to serving the defendant if the defendant no longer lives there—even if the parent later delivers the summons to the defendant. Farmer v. Davis, 161 Wn.App. 420, 433, 250 P.3d 138 (service on defendant's mother at house in which defendant no longer lived was insufficient, even though mother notified her son of the service), review denied, 172 Wn.2d 1019 (2011); Gerean v. Martin- Joven, 108 Wn.App. 963, 972, 33 P.3d 427 (2001), review denied, 146 Wn.2d 1013 (2002) ("actual notice does not constitute sufficient service").

A person may have more than one house of usual abode. Sheldon, 129 Wn.2d at 611-12 ("While we think that most people generally maintain only one house of usual abode for service of process purposes, we recognize under certain circumstances a defendant can maintain more than one house of usual abode.").

A "person of suitable age and discretion then resident therein" does not include a visiting daughter-in-law. John Hancock Mut. Life Ins. Co., 196 Wash. at 369-69. It does, however, include a nonrelative resident such as a fellow resident of a rooming house. Larson v. Zabroski, 21 Wn.2d 572, 574-75, 152 P.2d 154 (1944). Leaving a summons at the residence of the defendant's parents does not constitute adequate service when the defendant maintains a separate home. Lepeska v. Farley, 67 Wn.App. 548, 551, 833 P.2d 437 (1992). However, service upon a defendant's adult child who is staying overnight at her parents' home was sufficient service upon the defendant parents. Wichert v. Cardwell, 117 Wn.2d 148, 152-54, 812 P.2d 858 (1991). In Wichert, the court construed RCW 4.28.080 to give meaning to its spirit and purpose, guided by principles of due process. In reaching its decision, the court noted that it was not establishing a "bright-line" rule and that the practicalities of a particular situation would determine whether service meets the requirements of the rule. Id. at 156.

Substitute service on the Secretary of State pursuant to RCW 46.64.040, however, may be used to obtain process over a resident following diligent efforts toserve thedefendant if the plaintiff reasonably believes that the defendant has left the state. Martin, 121 Wn.2d at 151.

A defendant may be served in an alternative manner if the defendant has authorized such service. Thayer v. Edmonds, 8 Wn.App. 36, 41-42, 503 P.2d 1110 (1972), review denied, 82 Wn.2d 1001 (1973).Unlike FED. R. CIV. P. 4(d)(1), however, CR 4(d) does not permit service on the defendant's authorized agent. French, 57 Wn.App. at 225.

Personal service of a summons and complaint on an unknown individual at the defendant's place of...