Chapter §5.6 Analysis

• Jurisdiction: Washington

§5.6 ANALYSIS

This section analyzes when and how to accomplish service of pleadings and other papers (exclusive of the original summons and complaint) under CR 5. It also addresses requirements for filing with the court. CR 5 accommodates the ever-expanding options for electronic service and filing by allowing parties and courts to individually authorize their use. As electronic case management becomes even more established, further amendments may be warranted to clarify or standardize practices.

Comment: In mandatory arbitration cases, carefully review the service and filing requirements of the Mandatory Arbitration Rules (MAR) Although the MAR incorporate some civil rules, they also contain different and additional requirements. See, e.g., Alvarez v Banach, 153 Wn.2d 834, 109 P.3d 402 (2005) (proof of service required under MAR 7.1 to perfect request for trial de novo requires strict compliance, and declaration of intended method of service held inadequate).

(1) When service is required

CR 5(a) provides that every pleading subsequent to the original complaint must be served upon all parties, unless otherwise provided in the rules or a court order. Pleadings and other papers include every written motion (other than one that may be heard ex parte), notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers. When there are numerous defendants, counsel may move the court for an exception to this rule, but absent court order or stipulation, all parties must be served. If service is deficient, the trial court may lack jurisdiction. See In re Marriage of Markowski, 50 Wn.App. 633, 749 P.2d 754 (1988).

Parties in default who have failed to appear need not be served unless a new or original claim for relief against them is asserted. In an action begun by seizure of property, in which there is no requirement that a person be named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance must be made on the person havingcustody orpossession ofthe property atthe timeof its seizure. CR 5(a).

(2) On whom service is required

CR 5(b) states that service of papers and pleadings subsequent to the original summons and complaint shall be made on a party's attorney if that party is represented, unless service on the party is ordered by the court. Service on an attorney (or a party not represented by an attorney) can be accomplished by "delivery" or by mail pursuant to CR 5(b).

The rule provides for three types of delivery in addition to mailing:
(1) hand delivery to the attorney or party; (2) delivery to a clerk or other person in charge at the office of the attorney or party, or if no oneis incharge, leaving thedocuments ina conspicuous place;or (3) if the office is closed, or if the attorney or party has no office, leaving the documents at the dwelling or usual place of abode with a resident of suitable age and discretion.

Comment: CR 4.2 and CR 70.1 authorize limited representation of a party. Whether service is required on an attorney who has made a limited appearance depends on the scope of the representation and the documents to be served. When in doubt, serve all attorneys who have appeared in any capacity. If a party has an attorney who appeared for a limited purpose but is otherwise pro se, the party must be served except on matters related to the limited representation. See Chapter 4.2.(Rule 4.2. Process—Limited Representation) and Chapter 70.1. (Rule 70.1. Appearance by Attorney) of this deskbook.

The provisions regarding service by delivery do not prescribe qualifications for persons performing the service like those in CR 4(c).

In addition to delivery, service on an attorney (or unrepresented party) can be made by mail to the last known address. If no address is known and delivery is impossible, service may be made by filing an affidavit of attempted service with the clerk. CR 5(b)(3).

CR 5(b)(2)(A) explains how to accomplish service by mail. Papers must be deposited in the post office with postage prepaid. First class mail is sufficient; certified mail is permissible but unnecessary.See Collins v. Lomas & Nettleton Co., 29 Wn.App. 415, 417, 628 P.2d 855 (1981). "Mail" as used in CR 5 refers to the United States Postal Service. Delivery via private courier such as UPS or Federal Express was held not to constitute service by mail under RCW 51.48.131. See Cont'l Sports Corp. v. Dep't of Labor & Indus., 128 Wn.2d 594, 910 P.2d 1284 (1996).

Service by mail is presumed complete on the third day following the day the documents are mailed, unless the third day falls on a weekend or legal holiday, in which case service is complete on the first day following the weekend or legal holiday. The three-day presumption does not control when actual service admittedly occurred earlier. Moore v. Wentz, 11 Wn.App. 796, 799, 525 P.2d 290 (1974).

Caution: In Bank of the West v. F & H Farms, LLC, 123 Wn. App. 502, 98 P.3d 532 (2004), Division III of the Court of Appeals held that proof of mailing only constituted a presumption of receipt, and that an attorney's sworn statement that he did not receive notice of a motion was sufficient to rebut the presumption. Eliminate any question by using hand delivery whenever possible.

The three-day delay in service by mail granted by CR...