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In a Washington lawsuit, do you have to personally serve a defendant who lives out-of-state?

Posted by Brian C. Zuanich | Mar 19, 2019 | 0 Comments

One in four Americans moves every five years. On average, Americans move over 11 times in their lifetime.

You generally have three years to file a personal injury lawsuit in Washington. If you wait that long, the person you're trying to sue may be living someplace else—or not even living in Washington. You need an attorney who knows how to serve legal paperwork on an out-of-state defendant.

Davis' lawyer makes a mistake

You don't want to end up like Arthur Davis. The case of Davis v. Blumenstein provides a textbook example of how not to serve an out-of-state defendant.  

In November 2013, Arthur Davis and Laura Blumenstein were involved in car accident on I-405 in Bellevue. Police responded and wrote a report. The accident report listed an address for Blumenstein in Arlington, Washington.

Nearly three years passed before Davis filed a lawsuit in King County Superior Court. Davis' attorney hired a process server to serve the summons and complaint on Blumenstein at the Arlington address listed in the police report.

The process server went to the Arlington residence and spoke with Blumenstein's father. He told the process server that his daughter had moved to Bend, Oregon, and he provided an address. The process server emailed Davis' attorney the next day, and asked him whether he wanted to arrange for personal service at Blumenstein's Oregon address.

Davis' attorney made a decision—the wrong decision, as it turned out. Instead of attempting to serve Blumenstein in Oregon, Davis' attorney served the Washington Secretary of State.

Court of Appeals: Plaintiff must attempt personal service if knows Defendant's out-of-state address

Washington law permits a plaintiff in a car accident case to serve the secretary of state, but you have to meet a high burden to prove it's necessary. That's because due process requires that a person being sued has a right to be personally notified of the lawsuit. In that sense, serving the secretary of state (also known as “substitute service”) is the exact oppositeof personal service.

Substitute service is usually only appropriate when the other party is trying to avoid service. It is not appropriate when the plaintiff knows exactly where the defendant lives.

The law also requires that plaintiffs—or more, accurately, their attorneys—follow the procedural requirements to the letter. One of these procedural requirements is the attorney's affidavit of compliance.

Under RCW 46.64.460 (the secretary of state service statute), the plaintiff's attorney must file an affidavit with the secretary of state certifying that the attorney has diligently attempted to personally serve the defendant “at all addresses known to him or her.”

After receiving notice of the lawsuit from the secretary of state, Blumenstein filed a motion to dismiss. Her argument was simple. Davis' attorney knew she lived in Oregon, and he didn't attempt to personally serve her in Oregon. Game over.

Davis' argument was also simple but less persuasive. The law, he argued, only requires a plaintiff to attempt personal service at all addresses in Washington, not other states.

The trial court and the Court of Appeals sided with Blumenstein. To decide this case, the Court engaged in what legal scholars call “plain meaning” analysis. Judges read the statute and give each word its ordinary and literal meaning. If a word or phrase or sentence or paragraph is clear, then that's how you read the statute. We could also this the “don't overthink it” theory of statutory analysis.

RCW 46.64.040 is clear, the Court said. “All addresses known to him or her” means “ALL addresses known to him or her.” “All addresses known to him or her” clearly does not mean “all addresses just in Washington known to him or her.”

Losing on a technicality

Losing your case on a procedural technicality is awful, because technical errors are preventable. In fact, a major reason why people hire lawyers is because lawyers deal well in minutiae and details. When your lawyer loses your case on a technicality, the sting of losing is that much worse.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.


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