To simplify a complicated subject, suing someone is a two-step process. First, you file the lawsuit with the Court. Then you serve the legal paperwork on the defendant.
The first step is relatively easy (legally speaking). The second step can be much more difficult (both legally and practically speaking).
This is especially true if the defendant is hard to find. And people who know they're going to be sued are not exactly excited about being found. This is what happened in Cito v. Rios, a Court of Appeals case from 2018.
Rios Just Wants To Be Left Alone
Elizabeth Cito and Jennifer Rios were involved in a car accident on the West Seattle Bridge in September 2012. Nearly three years later (just before the statute of limitations expired), Cito filed a personal injury lawsuit against Rios in King County Superior Court.
Cito hired a process server (ABC Legal) to find and serve Rios. Eventually, ABC Legal tracked down Rios to an apartment complex in Des Moines. Neighbors confirmed that she lived there, and the apartment manager confirmed that Rios lived in apartment H304. That turned out to be the easy part.
At this point, Rios went into hiding—literally. Rios refused to answer the door, she refused to answer her phone, she refused to respond to text messages. Cito even enlisted the help of the King County Sheriff's office, but Rios refused to answer the door for the deputy either. In total, Rios refused service of process at least six times in less than a month.
Cito Doesn't Take No For An Answer
Stymied, Cito exercised the only other legal remedy she had. She served the Washington Secretary of State.
Under RCW 46.64.040, a defendant in a car accident case who “cannot, after a due and diligent search, be found in this state … appoints the secretary of state … as his or her lawful attorney” for service of process.
What does this statute mean? It doesn't really mean what the law says. A defendant like Rios is not really “appointing” the secretary of state to accept service of a lawsuit. Indeed, defendants like Rios are trying to actively avoid any part of the legal process. In that way, RCW 46.64.040 is really a legal fiction
What the law means, in a nutshell, is that a defendant who refuses service of a Washington lawsuit forfeits the right to demand personal service and instead consents to the Washington Secretary of State accepting service on his or her behalf. In other words, plaintiffs can force recalcitrant defendants into the lawsuit without their permission by serving the secretary of state.
In legal jargon, the plaintiff is substituting personal service with service on the secretary of state. That's why service on the secretary of state is commonly referred to as "substitute service."
The Secretary of State Comes To The Rescue
To be allowed to serve the secretary of state, a plaintiff has to establish two things: (1) she conducted a diligent search to locate the defendant; and (2) the defendant cannot be found in Washington.
Rios didn't dispute the fact that Cito made a diligent attempt to find her (That part was obvious). The issue in this case is what the phrase “cannot be found in this state” means.
Rios argued that service on the secretary of state is authorized only if a defendant has actually “departed the state” or that the plaintiff has a “good faith belief” that the defendant has departed the state. This didn't apply here, because Rios clearly was living in Des Moines. In other words, Rios could be—and was—"found in this state.”
Cito disagreed. Clearly Rios could be “found” in Washington, but she refused to be served in Washington. Put another way, Rios couldn't be “found” for service of process purposes, and that's what RCW 46.64.040 requires. Also, plaintiffs don't have to prove that defendants have fled to the state to avoid service.
The trial agreed with Rios and dismissed the case, but the appeals court agreed with Cito. The Court looked back at the history of the RCW 46.64.040 and pointed out a crucial fact: In 2003, the Washington state legislature deleted the language “departs from this state” and changed it to “found in this state.”
As the appeals court noted, when lawmakers change the statute, they usually intend to change the meaning of the statute (unless there are compelling reasons to assume otherwise. For that reason, “cannot be found in this state” is not the same thing as “departs from this state.”
Furthermore, the court ruled, to accept Rios' argument would be to reward defendants from avoiding service of process. The court didn't have to say this, but if Rios had her way, people would be able to run away from process servers and then complain later when they weren't served.
Cito's persistence paid off. The more times she tried and failed to serve Rios, the easier it became to convince the courts that she made a diligent effort to find Rios. And then it became easier to convince the courts that Rios was avoiding service.
To use an overused cliché, Cito really did snatch victory from the jaws of defeat.
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