and Submitted March 7, 2017 Seattle, Washington
from the United States District Court for the Western
District of Washington Ronald B. Leighton, District Judge,
Presiding D.C. No. 2:14-cv-00683-RBL
A. Cochran (argued) and Darrell L. Cochran, Pfau Cochran
Vertetis Amala PLLC, Tacoma, Washington, for
M. Burton (argued), Deputy Prosecuting Attorney; Mark
Lindquist, Prosecuting Attorney; Prosecuting Attorney's
Office, Tacoma, Washington; for Defendants-Appellees.
Before: Susan P. Graber, Sandra S. Ikuta, and Andrew D.
Hurwitz, Circuit Judges.
panel affirmed the district court's dismissal on statute
of limitations grounds of a suit brought under 42 U.S.C.
§ 1983 and state law.
panel held that although 28 U.S.C. § 1448 and
Fed.R.Civ.P. 4(m) give plaintiffs additional time to effect
service of process, these rules do not extend or revive a
state statute of limitations that expired before removal. The
panel held that the period of time during which plaintiff
could commence his claims expired under a state statute of
limitations before defendants removed the action to federal
court, and the federal rules allowing additional time to
effect service of process on defendants following removal did
not extend or revive a state statute of limitations.
Accordingly, the district court properly dismissed
plaintiff's claims on the ground that they were time
barred before his case was removed.
Whidbee challenges the district court's dismissal of his
federal civil rights and state negligence claims against
defendants Pierce County and Pierce County Sheriff's
Deputy Eugene Allen. We affirm. The period of time during
which Whidbee could commence these claims expired under a
state statute of limitations before defendants removed the
action to federal court, and the federal rules allowing
additional time to effect service of process on defendants
following removal do not extend or revive a state statute of
Washington law, an action for "injury to the person or
rights of another" (with some exceptions not relevant
here) "shall be commenced within three years."
Wash. Rev. Code § 4.16.080(2). "For the purpose of
tolling any statute of limitations an action shall be deemed
commenced when the complaint is filed. . . ."
Id. § 4.16.170. A plaintiff then has 90 days
within which to serve process on at least one defendant.
Id. If, "following filing, service is not so
made, the action shall be deemed to not have been commenced
for purposes of tolling the statute of limitations."
Id. Reading these statutes together, a personal
injury action "shall be deemed commenced" for
purposes of tolling the statute of limitations if the
plaintiff files the complaint within three years from the
date of injury and if the plaintiff serves at least one of
the defendants no later than 90 days after filing the
complaint. If the plaintiff fails to do so, the action may be
time barred. Id.; see also Gross v.
Sunding, 139 Wash.App. 54, 60 (2007).
plaintiff suing a county must serve the county auditor, Wash.
Rev. Code § 4.28.080(1), and a plaintiff suing an
individual generally must serve "the defendant
personally" or "leav[e] a copy of the summons at
the house of his or her usual abode with some person of
suitable age and discretion then resident therein, "
id. § 4.28.080(16). Washington courts require
strict compliance with the state's service of process
requirements. See Haberman v. Wash. Pub. Power Supply
Sys., 109 Wash.2d 107, 177 (1987) (as amended)
("[M]ere receipt of process and actual notice alone do
not establish valid service of process.");
Gross, 139 Wash.App. at 60 (holding that action was
time barred despite defendant's knowledge of
plaintiff's attempts to ...