Arthur Davis, App. v. Laura Blumenstein And Jean Doe Blumenstein, Res. , 432 P.3d 1251 ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
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ARTHUR DAVIS, an individual No. 76918-9-1
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Appellant,
V. (AM
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, *
PUBLISHED OPINION
LAURA BLUMENSTEIN, and JEAN arcil
DOE BLUMENSTEIN,spouses and the e
marital community thereof,
Respondents. FILED: January 14, 2019
SCHINDLER, J. — Subject to strict compliance with RCW 46.64.040, a
plaintiff can serve the secretary of state with the summons and complaint against
a defendant involved in an automobile collision. Arthur Davis appeals the
decision to dismiss his lawsuit against Laura Blumenstein on the grounds that he
did not comply with the statutory requirement to provide notice of service on the
secretary of state by filing an affidavit certifying "plaintiff's attorney. . . has with
due diligence attempted to serve personal process upon the defendant at all
addresses known to him or her."1 Because the undisputed record establishes
the attorney knew but did not attempt to serve personal process on Blumenstein
RCW 46.64.040.
No. 76918-9-1/2
at her address in Bend, Oregon and Blumenstein did not waive the right to assert
the defense of improper service of process, we affirm dismissal of the lawsuit.
Lawsuit against Blumenstein
On November 15, 2013, Arthur Davis and Laura Blumenstein were
involved in an automobile collision on Interstate 405 in Bellevue. The police
collision report lists Blumenstein's address as 7423 Eaglefield Drive, Arlington,
Washington 98223.
On November 2, 2016, Davis filed a personal injury lawsuit against
Blumenstein in King County Superior Court. That same day, the attorney
requested Elliott Point Legal serve the summons and complaint on Blumenstein
at the Arlington address listed in the collision report.
On November 10, an Elliott Point Legal process server sent an e-mail to
the attorney. The e-mail states the Arlington address is the "father's home and
she doesn't live there any longer" but Blumenstein's father gave the process
server the current address for his daughter: 708 NE Penn Avenue, Bend,
Oregon. The e-mail asks the attorney whether the process server should take
steps to serve Blumenstein in Oregon or serve the secretary of state:
1 can serve her via the Secretary of State since she is not a
Washington resident, or I/you can find a process server to serve
her personally in Oregon.
Her father provided me with her home address as:
708 NE Penn Avenue
Bend, Oregon 97701
Since there is a deadline approaching on service for this case,
please let me know how you'd like to proceed as soon as possible.
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No. 76918-9-1/3
Service on the Secretary of State
On November 11, Elliott Point Legal sent a copy of the summons,
complaint, and case schedule to the secretary of state.
On November 15, attorneys filed a notice of appearance on behalf of
Blumenstein.
On December 6, Davis' attorney received a letter from the secretary of
state acknowledging receipt of the summons and complaint in the lawsuit filed
against Blumenstein. The letter states the secretary of state mailed the
documents to the last known address "supplied by the plaintiff or his/her
representative": 7423 Eaglefield Drive, Arlington, Washington.
On DECEMBER 06, 2016, SUMMONS, COMPLAINT AND OTHER
LEGAL documents in the action relating to: ARTHUR DAVIS
(plaintiff) v LAURA BLUMENSTEIN AND JEAN DOE
BLUMENSTIEN (defendant), Cause # 16 2 26779 3 SEA were
received in the office of the Secretary of State. Said documents
were placed on file and a duplicated copy was mailed via "Certified"
mail, item number 91 7199 9991 7034 8898 6438 to the non-
resident motorist at the last known address as supplied by the
plaintiff or his/her representative.
Name and address to which documents were mailed:
THE MARITAL COMMUNITY OF
LAURA BLUMENSTEIN AND
JEAN DOE BLUMENSTEIN
7423 EAGLEFIELD DRIVE
ARLINGTON WA 98223.
On January 9, 2017, Davis filed "Plaintiff's Declaration of Compliance with
RCW 46.64.040." Davis states he was involved in an automobile collision on
November 15, 2013 and "obtained a copy of the Police Traffic Collision report,
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No. 76918-9-1/4
which listed the defendant's address." The declaration states his attorney
attempted to serve Blumenstein at the Arlington address:
On or about November 2, 2016, my attorney's office arranged for
Elliot[t] Point Legal to serve the Summons, Complaint, and Case
Information Cover Sheet, on Defendant Laura Blumenstein. Elliot[t]
Point Legal attempted to serve Defendant at the addresses of 7423
Eaglefield Drive Arlington, WA 98223. Elliot[t] Point Legal left
copies with the defendant's father and learned that the defendant
had moved to Oregon.
.. . My attorneys and Elliot[t] Point Legal then sent a copy of
the service documents to the Secretary of State of Washington.
On January 26, Davis' attorney filed "Plaintiff's Attorney's Affidavit of
Compliance with RCW 46.64.040." The Plaintiff's Attorney's Affidavit of
Compliance states that after receiving the police collision report, the attorney
"arranged for Elliot[t] Point Legal to serve" the summons and complaint on
Blumenstein at the Arlington address listed in the report. The attorney states that
when a process server attempted to serve Blumenstein at 7423 Eaglefield Drive,
Arlington, Washington,"David Blumenstein indicated that his daughter is the
Defendant, and that she now lives in Oregon and her address is 708 NE Penn
Avenue, Bend, Oregon 97701." The affidavit states that on January 6, the
attorney mailed the summons and complaint, the letter acknowledging receipt
from the secretary of state, the plaintiffs affidavit of compliance, and Plaintiff's
Attorney's Affidavit of Compliance to Blumenstein by certified mail to her "last
known Washington address listed above in paragraph number four[7423
Eaglefield Drive, Arlington, WA 982231 and to their last known Oregon address
listed in paragraph five [708 NE Penn Avenue, Bend, Oregon 97701]."
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No. 76918-9-1/5
Summary Judgment Dismissal of Lawsuit
Blumenstein filed a motion for summary judgment dismissal of the lawsuit.
Blumenstein argued Davis did not comply with the requirements for substitute
service on the secretary of state and did not serve her within the statute of
limitations.2 Blumenstein asserted the undisputed record showed Davis' attorney
knew but did not attempt personal service on Blumenstein at the known address
in Oregon. Blumenstein submitted a declaration stating, "1 moved to Bend,
Oregon in January 2015, where I have lived ever since"; "I have never been
served with the Summons and Complaint in this matter"; and "I never received
the Summons and Complaint in this matter in the mail."
Davis asserted he complied with the requirements to serve the secretary
of state because he attempted to serve Blumenstein in the state of Washington.
In the alternative, Davis argued Blumenstein waived the right to assert the
defense of insufficient service of process by "inconsistent" and "dilatory" conduct.
Davis' attorney submitted the November 10, 2016 e-mail from the process
server; November 30, 2016 interrogatories to Blumenstein; the December 6,
2016 letter from the secretary of state acknowledging receipt of legal documents
filed in the lawsuit; a copy of the January 11, 2017 certified mail receipt for the
documents sent to Blumenstein at 7423 Eaglefield Drive, Arlington, Washington
98223 and 708 NE Penn Avenue, Bend, Oregon 97701; and the return receipt of
the documents sent to the Oregon address stating, "Return to Sender,"
"Unclaimed," and "Unable to Forward." The attorney also submitted
2 Davis filed the complaint on November 2, 2016. RCW 4.16.170 tolls the statute of
limitations for 90 days from the date of filing the complaint.
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No. 76918-9-1/6
correspondence and e-mails regarding discovery and the transcript of the
deposition of David Blumenstein. David Blumenstein testified he told the process
server his daughter no longer lived at the Arlington, Washington address and
gave the process server his daughter's current address in Bend, Oregon:
A. . . . I told her that Laura did not live at our address and I
actually gave her the address where she lived in Bend, Oregon.
Q. Okay. And were you — at that time, did you know
Laura's address by heart or did you have to look for it to —
A. 1— I looked it up in my phone.
Q. Okay. Did you tell the Process Server that you would
give the documents to Laura?
A. I did not.
David Blumenstein said he told his daughter that "we had received the
documents and we had turned them over to State Farm Insurance and they were
handling the situation."
The court granted the motion for summary judgment and dismissed the
lawsuit. The court ruled, "[T]tle case law is very clear that statutes providing for
substitute service must be strictly construed and the procedures adhered to."
The court concluded Davis did not comply with the requirements of RCW
46.64.040 or properly serve Blumenstein within the statute of limitations. The
court ruled the substitute service statute requires the attorney to file an affidavit
of compliance stating the attorney has with due diligence attempted to serve
personal process upon all addresses known to him. The court found the
undisputed record established Davis knew but made "no attempt at personal
service in Bend, Oregon." The court also ruled Blumenstein did not waive the
defense of insufficient service of process. The court denied the motion for
reconsideration.
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No. 76918-9-1/7
Statutory Requirements for Service on Secretary of State
Davis contends the court erred in dismissing his lawsuit on summary
judgment. Davis claims he complied with the statutory requirements for
substitute service of process on the secretary of state. Davis asserts RCW
46.64.040 does not require him to attempt to serve personal process on
Blumenstein at the known address in Bend, Oregon.
We review summary judgment de novo, engaging in the same inquiry as
the trial court. Lunsford v. Saberhagen Holdings, Inc., 166 Wash. 2d 264, 270, 208
P.3d 1092(2009). Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to summary judgment as a
matter of law. CR 56(c); Atherton Condo. Apt.-Owners Ass'n Bd. of Dirs. v.
Blume Dev. Co., 115 Wash. 2d 506, 516, 799 P.2d 250 (1990); Loeffelholz v. Univ.
of Wash., 175 Wash. 2d 264, 271, 285 P.3d 854 (2012).
A prerequisite of obtaining jurisdiction is service of the summons and
complaint. Heinzig v. Seok Hwang, 189 Wash. App. 304, 310, 354 P.3d 943
(2015). Whether service of process is proper is a question of law that we review
de novo. Heinziq, 189 Wash. App. at 310.
The rights and privileges of drivers to use the state highways are the
"equivalent to appointment of the Secretary of State by a nonresident. . . or a
resident" involved in an automobile collision. Martin v. Meier, 111 Wash. 2d 471,
476, 760 P.2d 925 (1988); RCW 46.64.040. RCW 46.64.040 states, "[S]uch
service shall be sufficient and valid personal service upon said resident or
nonresident." Under RCW 46.64.040, service of the summons and complaint on
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No. 76918-9-1/8
the secretary of state "constitutes valid personal service over defendant." Meier,
111 Wash. 2d at 476.
Because substitute service is in derogation of the common law, a plaintiff
must strictly comply with the requirements of RCW 46.64.040 to obtain personal
jurisdiction over a defendant. Meier, 111 Wash. 2d at 479; Martin v. Triol, 121
Wash. 2d 135, 144, 847 P.2d 471 (1993). Failure to adhere to the statutory
requirements "renders service on the secretary a nullity." Heinziq, 189 Wash. App.
at 312.
RCW 46.64.040 states:
The acceptance by a nonresident of the rights and privileges
conferred by law in the use of the public highways of this state, as
evidenced by his or her operation of a vehicle thereon, or the
operation thereon of his or her vehicle with his or her consent,
express or implied, shall be deemed equivalent to and construed to
be an appointment by such nonresident of the secretary of state of
the state of Washington to be his or her true and lawful attorney
upon whom may be served all lawful summons and processes
against him or her growing out of any accident, collision, or liability
in which such nonresident may be involved while operating a
vehicle upon the public highways, or while his or her vehicle is
being operated thereon with his or her consent, express or implied,
and such operation and acceptance shall be a signification of the
nonresident's agreement that any summons or process against him
or her which is so served shall be of the same legal force and
validity as if served on the nonresident personally within the state of
Washington. Likewise, each resident of this state who, while
operating a motor vehicle on the public highways of this state, is
involved in any accident, collision, or liability and thereafter at any
time within the following three years cannot, after a due and diligent
search, be found in this state appoints the secretary of state of the
state of Washington as his or her lawful attorney for service of
summons as provided in this section for nonresidents. Service of
such summons or process shall be made by leaving two copies
thereof with a fee established by the secretary of state by rule with
the secretary of state of the state of Washington, or at the secretary
of state's office, and such service shall be sufficient and valid
personal service upon said resident or nonresident: PROVIDED,
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No. 76918-9-1/9
That notice of such service and a copy of the summons or process
is forthwith sent by registered mail with return receipt requested, by
plaintiff to the defendant at the last known address of the said
defendant, and the plaintiff's affidavit of compliance herewith are
appended to the process, together with the affidavit of the plaintiff's
attorney that the attorney has with due diligence attempted to serve
personal process upon the defendant at all addresses known to him
or her of defendant and further listing in his or her affidavit the
addresses at which he or she attempted to have process served.
However, if process is forwarded by registered mail and
defendant's endorsed receipt is received and entered as a part of
the return of process then the foregoing affidavit of plaintiff's
attorney need only show that the defendant received personal
delivery by mail: PROVIDED FURTHER, That personal service
outside of this state in accordance with the provisions of law
relating to personal service of summons outside of this state shall
relieve the plaintiff from mailing a copy of the summons or process
by registered mail as hereinbefore provided. The secretary of state
shall forthwith send one of such copies by mail, postage prepaid,
addressed to the defendant at the defendant's address, if known to
the secretary of state. The court in which the action is brought may
order such continuances as may be necessary to afford the
defendant reasonable opportunity to defend the action. The fee
paid by the plaintiff to the secretary of state shall be taxed as part of
his or her costs if he or she prevails in the action. The secretary of
state shall keep a record of all such summons and processes,
which shall show the day of service.
We review the meaning of a statute de novo. Columbia Riverkeeper v.
Port of Vancouver, 188 Wash. 2d 421, 432, 395 P.3d 1031 (2017). When
interpreting a statute, our fundamental objective is to ascertain, carry out, and
give effect to the legislature's intent. Dep't of Ecology v. Campbell & Gwinn,
LLC, 146 Wash. 2d 1, 9-10, 43 P.3d 4(2002); Chadwick Farms Owners Ass'n v.
FHC LLC, 166 Wash. 2d 178, 186, 207 P.3d 1251 (2009). Statutory interpretation
begins with the plain meaning of the statute. Lake v. Woodcreek Homeowners
Ass'n 169 Wash. 2d 516, 526, 243 P.3d 1283(2010). We consider the plain
meaning of the statute as the expression of the intent of the legislature. Bostain
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No. 76918-9-1/10
v. Food Express, Inc., 159 Wash. 2d 700, 708, 153 P.3d 846 (2007); City of
Spokane v. Spokane County, 158 Wash. 2d 661, 673, 146 P.3d 893(2006);
Campbell & Gwinn, 146 Wash. 2d at 9-10. The court discerns plain meaning from
"the plain language enacted by the legislature, considering the text of the
provision in question, the context of the statute in which the provision is found,
related provisions, amendments to the provision, and the statutory scheme as a
whole." Columbia Riverkeeper, 188 Wash. 2d at 432. If the plain language of the
statute is subject to only one interpretation, the court's inquiry is at an end. Lake,
169 Wash. 2d at 526.
RCW 46.64.040 sets forth the mandatory steps a plaintiff must follow in
order to comply with the requirements for substitute service on the secretary of
state. The first section of RCW 46.64.040 authorizes substitute service of
process on the secretary of state for nonresidents and for residents who "cannot,
after a due and diligent search, be found in this state" within three years of the
collision.
The second section of the statute sets forth the mandatory requirements
for notice of substitute service on the secretary of state. "[N]otice to the
defendant is essential for due process." Meier, 111 Wash. 2d at 476. "[D]ue
process requires 'notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.'" Meier, 111 Wash. 2d at 477-78 (quoting
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94
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No. 76918-9-1/11
L. Ed. 865 (1950)). In Meier, the Washington Supreme Court held the statutory
notice requirements comply with due process:
This statutory procedure is such that there is a reasonable
probability that if plaintiff complies with the procedure, defendant
will receive actual notice. Plaintiff necessarily has a last known
address to which to send such notice, and has with due diligence
attempted to serve defendant at all known addresses, but cannot
locate and serve defendant. Key to the reasonableness of the
notice is the requirement that plaintiff exercise such due diligence.
The notice must be sent by registered mail. We conclude that
mailed notice to defendant's last known address is notice
reasonably calculated, under all the circumstances, to apprise
defendant of the suit and give defendant an opportunity to present
objections, as required by Mullane.
Meier, 111 Wash. 2d at 478.
A plaintiff complies with the statutory requirement to provide notice to the
defendant of substitute service on the secretary of state in three different ways:
(1) sending notice of service on the secretary of state by registered mail, return
receipt requested, with copies of the summons and complaint, plaintiff's affidavit
of compliance, and an affidavit from the attorney stating that the attorney "has
with due diligence attempted to serve personal process upon the defendant at all
addresses known to him or her of defendant. . . listing. . . the addresses at
which he or she attempted to have process served";(2) attaching a receipt
endorsed by the defendant to "show that the defendant received personal
delivery by mail"; or (3) personally serving the defendant "in accordance with the
provisions of law relating to personal service of summons outside of this state."
RCW 46.64.040; Meier, 111 Wash. 2d at 476-77.
Here, Davis sent notice of substitute service on the secretary of state by
registered mail to Blumenstein at the Arlington, Washington address and the
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No. 76918-9-1/12
Bend, Oregon address. But the undisputed record shows the attorney Affidavit of
Compliance does not state that the attorney attempted personal service on
Blumenstein at the Oregon address.
Davis contends RCW 46.64.040 does not require the attorney to attempt
personal service of process at a known out-of-state address. Davis cites the
language of the statute that authorizes substitute service on the secretary of
state for a resident involved in an automobile collision who "cannot, after a due
and diligent search, be found in this state" to argue the statute requires only
attempted personal service at all known addresses of the defendant "in this
state." RCW 46.64.040.3 We disagree.
We must construe a statute"'so that all the language used is given effect,
with no portion rendered meaningless or superfluous.'" Rapid Settlements, Ltd.
v. Svmetra Life Ins. Co., 134 Wash. App. 329, 332, 139 P.3d 411 (2006)4 (quoting
Prison Legal News, Inc. v. Dep't of Corr., 154 Wash. 2d 628, 644, 115 P.3d 316
(2005)). Unlike the requirements for substitute service on the secretary of state,
the plain and unambiguous language of the notice requirements state the
plaintiff's attorney must file an affidavit certifying "that the attorney has with due
diligence attempted to serve personal process upon the defendant at all
addresses known to him or her of defendant and further listing in his or her
affidavit the addresses at which he or she attempted to have process served."
RCW 46.64.040. This mandatory requirement is not limited to attempted
3 Emphasis added.
4 Internal quotation marks omitted.
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No. 76918-9-1/13
personal service of process on a defendant "in this state." RCW 46.64.040.5
The statute requires attempted personal service "at all addresses known" to the
attorney. RCW 46.64.040. We assume that by using different language, the
legislature meant to indicate a different meaning. Jonoeward v. BNSF Rv., 174
Wash. 2d 586, 612, 278 P.3d 157(2012).
We hold the mandatory requirement that the plaintiff's attorney certify that
the attorney with due diligence attempted to serve personal process on all known
addresses is not limited to an attempt to serve in this state. When the plaintiff
provides notice by certified mail, the statute requires the plaintiff's attorney
submit an affidavit certifying that "with due diligence" the attorney attempted "to
serve personal process upon the defendant at all addresses known to him or her
of defendant." RCW 46.64.040. Where the attorney knows the out-of-state
address of the defendant, the attorney must attempt to serve personal process
on the defendant at the out-of-state address.
The undisputed record establishes Davis' attorney knew that Blumenstein
had moved to 708 NE Penn Avenue, Bend, Oregon. The attorney made no
attempt to serve Blumenstein at the address in Oregon. The attorney affidavit
does not state that the attorney exercised due diligence in attempting to serve
Blumenstein. The Plaintiff's Attorney's Affidavit of Compliance lists 7423
Eaglefield Drive, Arlington, Washington and 708 NE Penn Avenue, Bend, Oregon
as known addresses of Blumenstein. But the affidavit states the only attempt at
personal service was at the Arlington address. Because Davis did not comply
5 Emphasis added.
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No. 76918-9-1/14
with the statutory notice requirements for substitute service, the court did not err
in dismissing the lawsuit against Blumenstein.6
Waiver of Service of Process Defense
In the alternative, Davis contends Blumenstein waived the right to assert
the defense of insufficient service of process. Davis argues the record shows
Blumenstein was dilatory and her conduct was inconsistent with the defense.
The record does not support Davis' argument.
A defendant may waive the defense of insufficient service of process if
"'(1) assertion of the defense is inconsistent with defendant's prior behavior or
(2) the defendant has been dilatory in asserting the defense.'" Harvey v.
Obermeit, 163 Wash. App. 311, 323, 261 P.3d 671 (2011)(quoting King v.
Snohomish County, 146 Wash. 2d 420, 424, 47 P.3d 563(2002)). In order for the
waiver doctrine to apply, the defendant's actions must have caused prejudice to
the plaintiff. Heinzig, 189 Wash. App. at 314.
On November 2, 2016, Davis filed a lawsuit against Blumenstein in King
County Superior Court. On November 15, attorneys representing Blumenstein
filed a notice of appearance. The notice of appearance states, "Until instructed
otherwise, you are hereby requested to direct all future communications" on the
attorneys "except original service of process." On November 30, Blumenstein
served interrogatories and requests for production. On December 5, Davis
6 For the first time on appeal, Blumenstein cites Keithly v. Sanders, 170 Wash. App. 683,
285 P.3d 225 (2012), to also argue Davis did not comply with the statutory requirement to file the
affidavit of Davis' attorney "forthwith." RCW 46.64.040. We do not consider arguments not
raised below on summary judgment. RAP 9.12.
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No. 76918-9-1/15
served Blumenstein's attorney with "Pattern Interrogatories." On December 15,
Davis served requests for admissions.
On January 13, 2017, Blumenstein served answers to the requests for
admissions. Blumenstein denied that Davis "accomplished proper service of
process of the summons and complaint" on her. On March 14, Blumenstein filed
an answer to the complaint. Blumenstein asserted as an affirmative defense
improper service of process. In response to plaintiff's interrogatories,
Blumenstein asserted objections, including:
Defendant objects. . . on grounds that Plaintiff has failed to effect
service of process upon Defendant and further that any service of
process claimed to have been completed by Plaintiff is insufficient
service of process. Defendant is also alleging this suit is barred by
the statute of limitations, and that the Court lacks subject matter
and personal jurisdiction to decide the matter on the merits due to
the aforementioned lack of effective process and statute of
limitations violation.
Davis argues Blumenstein's assertion of the defense was inconsistent with
propounding interrogatories before filing the answer. The record does not
support his argument.
The November 30 discovery requests Blumenstein propounded included
an interrogatory regarding insufficient service of process. Interrogatory 28 states,
"Defendants may allege they have not been properly served with Plaintiff's
Complaint. Please set forth in [sic] describe in detail how YOU contend Plaintiff's
Complaint was served on Defendants."
Davis also claims Blumenstein waived the right to assert the defense by
the "failure to sign for the mailed complaint." Davis asserts Blumenstein
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No. 76918-9-1/16
"refused" to sign for the mailed copy of the summons and complaint.7 But the
record shows the documents were returned as "unclaimed." Further, in her
unrebutted declaration, Blumenstein states, "I never received the Summons and
Complaint in this matter in the mail. 1 check my mail on a regular basis and
would know if it had arrived prior to the date of my signature below. It has not."
Blumenstein's conduct was not inconsistent with a defendant who intends to
assert insufficient service of process.
Davis contends Blumenstein was dilatory in asserting the defense
because she did not timely answer interrogatories. Davis served "Plaintiffns
Pattern Interrogatories to Defendant Laura Blumenstein" on December 5, 2016.
On December 15, Davis served requests for admissions on Blumenstein.
Request for admission 1 states, "Plaintiff accomplished proper service of process
of the summons and complaint in this action upon this defendant." On January
13, 2017, Blumenstein responded to the requests for admissions and expressly
denied that Davis properly served process. Blumenstein filed the response
within 30 days after service of the requests as required by CR 36(a) and 18 days
before the end of the 90-day period for service. Blumenstein's attorney also
addressed discovery in a March 13, 2017 e-mail to Davis' attorney. The e-mail
states:
It would not be reasonable or proper to put you or your client
through the time and expense of litigating this case on the merits
7 In the reply brief, Davis argues that because the record contains proof of mailing,
Blumenstein received the documents. See Kaiser Alum. & Chem. Coro. v. Den't of Labor &
Indus., 57 Wash. App. 886, 889, 790 P.2d 1254 (1990). We do not consider arguments raised for
the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828
P.2d 549 (1992). In any event, the case law Davis cites is inapposite. RCW 46.64.040 requires
an "endorsed receipt" to show defendant received personal delivery by mail.
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No. 76918-9-1/17
when our position is that this case is barred by the statute of
limitations by virtue of lack of proper service of process within the
applicable limitations period and the statutory 90-day tolling period.
In a March 23 e-mail, Davis' attorney stated, "I will not use getting the
answers to limited questions I'm hounding you about to claim waiver of the
service issue." On March 31, Blumenstein filed answers to Davis' interrogatories.
The first page specifically states, in pertinent part:
NOTICE OF NON-WAIVER: Defendant does not waive any of
rights, reservations, or defenses, including but not limited to
the affirmative defenses asserted in this matter. Defendant is
specifically alleging that the Plaintiff has failed to effect
service of process upon Defendant and further that any
service of process claimed to have been completed by Plaintiff
is insufficient service of process.[8]
We conclude Blumenstein did not waive the right to assert the defense of
insufficient service of process.
We affirm summary judgment dismissal of the lawsuit.g
WE CONCUR:
5a2,\N6.&Q--t
8 Boldface in original.
9 As the substantially prevailing party on appeal, Blumenstein is entitled to an award of
costs under RAP 14.2.
17