Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Whidbee v. Pierce County

United States Court of Appeals, Ninth Circuit

May 26, 2017

Clifton Whidbee, individually, Plaintiff-Appellant,
v.
Pierce County, a Washington State Municipal Corporation; Eugene Allen, in his individual capacity, Defendants-Appellees.

          Argued and Submitted March 7, 2017 Seattle, Washington

         Appeal 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

          Loren A. Cochran (argued) and Darrell L. Cochran, Pfau Cochran Vertetis Amala PLLC, Tacoma, Washington, for Plaintiff-Appellant.

          Alicia 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.

         SUMMARY[*]

         Civil Rights

         The 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.

         The 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.

          OPINION

          IKUTA, CIRCUIT JUDGE:

         Clifton 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 limitations.

         I

         Under 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.[1] 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).

         A 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.