§5.4 Comparison with Federal Rule

• Jurisdiction: Washington

§5.4 COMPARISON WITH FEDERAL RULE

CR 5(a) is structured differently from but substantively equivalent to FED. R. CIV P. 5(a).

CR 5(b)(1) is comparable to FED. R. CIV P. 5(b), with the exception of (1) references to service on attorneys under CR 5(b)(4) and (5) and CR 71; and (2) CR 5(b)(1)'s requirement of filing an affidavit of attempt to serve, as compared to FED. R. CIV P. 5(b)'s requirement that papers be left with the clerk of the court if service cannot be accomplished.

CR 5(b)(2), which addresses service by mail, is significantly different from the federal rule. Under CR 5(b)(2), service is presumed complete on the third day following the day the papers were placed in the mail, unless the third day falls on a weekend or legal holiday. In contrast, FED. R. CIV P. 5(b)(2)(C) provides that service is complete upon mailing. Under the federal rule, service is valid if properly mailed, even if the papers are not received. Theede v. U.S. Dep't of Labor, 172 F.3d 1262 (10th Cir. 1999); Greene v. WCI Holdings Corp., 136 F.3d 313, 315 (2d Cir.), cert. denied, 525 U.S. 983 (1998).

CR 5(b)(3)-(6) contain specific service requirements for specific situations including service on nonresidents and service after final judgment. These specific provisions do not appear in FED. R. CIV P. 5.

CR 5(b)(7) is comparable to FED. R. CIV P. 5(b)(2)(E) and (F) and FED. R. CIV P. 5(b)(3), with a few exceptions. First, the state rule permits service by "facsimile or electronic means" if the person served has consented in writing, while the federal rule authorizes service only by "electronic means." Presumably, facsimile service falls within the broader category of "electronic means." FED. R. CIV P. 5(b)(2)(E); see also Magnuson v. Video Yesteryear, 85 F.3d 1424, 1431 (9th Cir. 1996) (acknowledging district court's local rule allowing service by facsimile upon written agreement). Second, under CR 5(b)(7), service by facsimile or electronic means is complete on transmission when made prior to 5:00 p.m. on a judicial day, but if made on a weekend, holiday, or after 5:00 p.m., service is deemed complete at 9:00 a.m. on the next judicial day. In contrast, service by electronic means under FED. R. CIV P. 5(b)(2)(E) is complete on transmission regardless when it occurs, unless the sending party has actual knowledge that transmission failed. Third, the federal rule provides that a party may make service through the court's transmission facilities if authorized by local...