Victor & Olivia Guenther, V. Galaxy Pacific Service, Llc & Muhammad Joyia ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
VICTOR GUENTHER and OLIVIA
GUENTHER, a marital community, DIVISION ONE
Appellants, No. 82542-9-I
v. UNPUBLISHED OPINION
GALAXY PACIFIC SERVICES LLC, a
Washington limited liability company,
and MUHAMMAD JOYIA, an individual,
Respondents.
DWYER, J. — Victor and Olivia Guenther filed a personal injury complaint
against Muhummad Joyia, a Canadian resident, and a Washington company, on
the mistaken belief that the company was Joyia’s employer. The Guenthers
attempted to serve Joyia with a copy of the summons and complaint using
certified mail. Within days of filing the complaint, the plaintiffs learned that
Joyia’s employer was a Canadian company with a similar name to the
Washington company they had sued. After the statute of limitation expired,
Joyia, together with the Canadian company that was not named in the complaint,
filed a motion to dismiss the complaint, challenging the sufficiency of service of
process. The Guenthers sought to amend the complaint to add the Canadian
company as a defendant and requested that the amendment relate back to the
original complaint.
No. 82542-9-I/2
However, the Guenthers failed to comply with the requirements of the
applicable Washington civil rule when attempting to serve Joyia in Canada by
mail, using a form of mail that did not provide a return receipt or other
confirmation of delivery when delivered outside of the United States. They also
failed to present evidence, to the trial court’s satisfaction, establishing delivery of
the mailed summons and complaint to Joyia. And because Joyia’s actual
employer’s identity was ascertainable and was, in fact, known to the Guenthers
within the applicable limitation period, the delay in seeking to add the correct
defendant before the limitation period expired constituted inexcusable neglect.
Thus, the trial court did not err when it dismissed the Guenthers’ complaint and
denied the motion to amend. We affirm.
I
The following facts are not in dispute. On August 28, 2019, Victor and
Olivia Guenther (collectively, Guenther) filed a summons and complaint for
damages against Muhammad Joyia, a resident of British Columbia, Canada, and
Galaxy Pacific Services LLC (GPS LLC), a Washington limited liability company.
The complaint alleged that on October 31, 2016, Joyia was driving a commercial
semi-tractor trailer in Lewis County in the course of his employment and struck
Guenther’s vehicle. The complaint further alleged that the collision was
attributable to Joyia’s negligence and that GPS LLC was liable for the negligence
of Joyia, its agent, and for negligently training and/or supervising its employee.
On the same day Guenther filed his compliant, a professional process
server personally served a copy of the summons and complaint on the registered
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No. 82542-9-I/3
agent of GPS LLC in Bellingham. The day before, on August 27, a paralegal
employed by Guenther’s counsel sent a copy of the summons and complaint to
Joyia’s address in British Columbia, using certified mail and a return receipt
service, and paying an international postage rate.1 Italicized preprinted language
on the certified mail return receipt indicated that its use was limited to “Domestic
Mail Only.”
The day after Guenther filed his complaint, the registered agent of GPS
LLC called Guenther’s counsel’s office to inform Guenther that GPS LLC did not
operate a trucking business in Canada and that a Canadian entity, Galaxy Pacific
Services GPS Ltd (GPS Ltd), was the likely intended recipient of the summons
and complaint. Having received correspondence for GPS Ltd in the past, the
registered agent provided the Department of Transportation identification number
associated with GPS Ltd. Upon further research, Guenther’s counsel’s paralegal
verified the information provided by GPS LLC and ascertained the British
Columbia address for the Canadian company. With this information, on
September 11, 2019, Guenther’s counsel arranged for copies of the summons
and complaint to be sent to both Joyia and GPS Ltd, again using certified mail
and a return receipt service for domestic mail.
1 Joyia points out that the summons erroneously stated that he had 20 days, instead of
60 days, to appear and answer the complaint. See RCW 4.28.180. While a failure to accomplish
service of process cannot be cured by amending a summons, errors in the form of a summons
are amendable under CR 4(h). Sammamish Pointe Homeowners Ass’n v. Sammamish Pointe
LLC, 116 Wn. App. 117, 124, 64 P.3d 656 (2003). Wisely, Joyia does not assert that error in the
form of the summons was a basis for dismissal. Sammamish Pointe, 116 Wn. App. at 125-26
(summons that specifies an incorrect time for filing an answer is not a basis for dismissal, absent
a showing of prejudice).
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On November 28, 2019, counsel filed a notice of appearance on behalf of
Joyia and GPS Ltd, “without waiving any objections as to improper service,
jurisdiction” or other defenses under CR 12. A month later, Joyia answered the
complaint, raising affirmative defenses under CR 12(b) including “insufficiency of
process and insufficiency of service of process.” GPS LLC did not appear in the
action or answer the complaint.
In February 2020, after Guenther noted the case for trial, Joyia and GPS
Ltd filed a joint motion to dismiss the complaint under CR 12(b)(5) (defense of
insufficient service of process may be asserted by pleading or motion).2 They
argued, among other things, that Guenther failed to effectuate proper service of
process under CR 4 within the statutory limitation period. Guenther then filed a
motion seeking to amend the complaint. As the statutory limitation period on his
claims had expired, Guenther argued that his amended complaint naming GPS
Ltd as a defendant should relate back to the date of the original complaint.3 In a
declaration supporting this motion, Guenther’s attorney admitted that GPS LLC
“has no relation to the matters at issue herein and should be dismissed from this
case.”
After considering both motions, the responses to the motions, and oral
argument, the court entered orders that (1) denied the motion to amend, (2)
dismissed claims against defendant GPS LLC, and (3) granted the motion to
dismiss the complaint under CR 12(b)(5). The order dismissing the complaint
2 Although GPS Ltd joined in filing the motion to dismiss below, Joyia is the sole
respondent on appeal.
3 The limitation period applicable to a personal injury action is three years. RCW
4.16.080(2).
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No. 82542-9-I/5
under CR 12(b)(5) also specifically dismisses claims against both Joyia and GPS
Ltd. The trial court later denied Guenther’s motion seeking reconsideration or an
evidentiary hearing. Guenther appeals.
II
Before addressing the primary substantive issues, we must dispose of two
preliminary matters. First, Guenther accomplished valid service of process by
personally serving the registered agent of GPS LLC in Washington. Thus, the
trial court had personal jurisdiction over that defendant. Therefore, CR 12(b)(5),
the basis for the motion to dismiss, did not provide authority to dismiss claims
asserted against GPS LLC. But the record is clear that GPS LLC had no
connection to the facts alleged by Guenther. Seeking to amend the complaint,
Guenther conceded that he had sued the wrong entity and expressly asked the
court to dismiss the claims against GPS LLC. The court’s order denying the
motion to amend the complaint, entered simultaneously with its order granting
the motion to dismiss, granted that request and dismissed the claims against
GPS LLC with prejudice. Although that order does not specify the legal basis for
dismissal, the trial court had authority to dismiss under CR 41(a)(1)(B) (trial court
may dismiss any action “[u]pon motion of the plaintiff at any time before plaintiff
rests at the conclusion of plaintiff’s opening case”) or CR 12(b)(6) (dismissal for
failure to state a claim upon which relief may be granted). In any event,
Guenther does not challenge the dismissal of his claims against GPS LLC.
Second, as Guenther points out, while GPS Ltd joined in filing a motion to
dismiss the complaint, it “technically was not a party” to the case. As the
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No. 82542-9-I/6
complaint asserted no claims against GPS Ltd, Guenther asserts that the
dismissal of claims against GPS Ltd was “not necessary.” We agree. However,
the trial court’s order states that the “Defendants’ Motion to Dismiss Plaintiffs’
Complaint Pursuant to CR 12(b)(5) is GRANTED.” Having dismissed the claims
against GPS LLC in the order on Guenther’s motion to amend, the dismissal
order thus disposed of the claims against Joyia, the only remaining defendant
named in the complaint. The language that follows the ordering clause and
purports to dismiss claims against both Joyia and GPS Ltd with prejudice is
erroneous, but also superfluous. We need not remand to strike this language
because it is clear from the context of the order that it dismisses the complaint,
and is necessarily limited to claims against parties named in the complaint.
III
Guenther challenges the dismissal of his claims against Joyia under CR
12(b)(5) for insufficient service of process.
“‘[B]eyond due process [requirements],’” Washington law requires
compliance with requirements for service of process in order to obtain personal
jurisdiction over a party and adjudicate a dispute. Ronald Wastewater Dist. v.
Olympic View Water & Sewer Dist., 196 Wn.2d 353, 370, 474 P.3d 547 (2020)
(alteration in original) (quoting Weiss v. Glemp, 127 Wn.2d 726, 734, 903 P.2d
455 (1995)); Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014).
“This court reviews de novo if service of process was proper.” Scanlan, 181
Wn.2d at 847.
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No. 82542-9-I/7
Guenther argues that he complied with Washington’s rules of civil
procedure, namely CR 4(i)(1)(D), when he served the summons and complaint
upon Joyia by mail.
CR 4(i) sets forth the following “Alternative Provisions for Service in a
Foreign Country”:
(1) Manner. When a statute or rule authorizes service upon a
party not an inhabitant of or found within the state, and service is to
be effected upon the party in a foreign country, it is also sufficient if
service of the summons and complaint is made: (A) in the manner
prescribed by the law of the foreign country for service in that
country in an action in any of its courts of general jurisdiction; or (B)
as directed by the foreign authority in response to a letter rogatory
or a letter of request; or (C) upon an individual, by delivery to the
party personally, and upon a corporation or partnership or
association, by delivery to an officer, a managing or general agent;
or (D) by any form of mail, requiring a signed receipt, to be
addressed and mailed to the party to be served; or (E) pursuant to
the means and terms of any applicable treaty or convention; or (F)
by diplomatic or consular officers when authorized by the United
States Department of State; or (G) as directed by order of the
court. . . . The method for service of process in a foreign country
must comply with applicable treaties, if any, and must be
reasonably calculated, under all the circumstances, to give actual
notice.
(2) Return. Proof of service may be made as prescribed by
section (g) of this rule, or by the law of the foreign country, or by a
method provided in any applicable treaty or convention, or by order
of the court. When service is made pursuant to subsection (1)(D)
of this section, proof of service shall include a receipt signed by the
addressee or other evidence of delivery to the addressee
satisfactory to the court.
(Emphasis added.)
Guenther concedes that the type of mail he used did not provide a return
receipt that confirmed delivery of the summons and complaint because the
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No. 82542-9-I/8
selected service was “for domestic mail only within the United States.”4 He
maintains that the manner of service still met the requirements of CR 4(i)(1)(D)
because he paid the correct rate for international postage. Even without tracking
service or delivery confirmation, he claims that this service by mail was
“reasonably calculated” under CR 4(i)(1) to provide actual notice of the lawsuit.
But Guenther did not comply with the explicit requirements of CR
4(i)(1)(D) because he did not use a form of mail that required a signed receipt, or
any other confirmation of delivery in Canada. That service under CR 4(i)(1) must
be “reasonably calculated” to provide actual notice of the legal proceeding
initiated in Washington is an additional requirement that applies to all methods of
service enumerated under CR 4(i)(1). It is not an alternative to a “form of mail
requiring a signed receipt.”
Guenther cites Scanlan v. Townsend, 181 Wn.2d at 848, to argue that the
absence of a return receipt does not affect the “validity” of service of process.
But Scanlan addressed the propriety of “secondhand” personal service, where
proof of service was established by the defendant’s own testimony and her
attorney’s stipulation that the defendant received the summons. 181 Wn.2d at
848-49, 856. And more importantly, as the court’s reference to Jones v.
4 Guenther sent the summons by certified mail—a service offered by the United States
Postal Service (USPS) that provides the sender with a mailing receipt and electronic verification
that the mailed item was delivered or that delivery was attempted within the United States. See
What Is Certified Mail?, U.S. POSTAL SERV. (May 26, 2021), https://faq.usps.com/s/article/What-is-
Certified-Mail. He did not use “Registered Mail International Service,” another service offered by
USPS which provides both a receipt issued by the office of mailing and a delivery record
maintained at the office of destination for the registered item. See Registered Mail International,
U.S. POSTAL SERV. (June 15, 2021), https://faq.usps.com/s/article/What-is-Registered-Mail-
International. The rule does not prescribe the use of USPS or any particular mail service.
8
No. 82542-9-I/9
Stebbins, 122 Wn.2d 471, 482, 860 P.2d 1009 (1993), makes clear, the court
merely confirmed that it is service of process itself, not the return thereof, that
confers personal jurisdiction. Scanlan, 181 Wn.2d at 848.
Guenther also contends that the lack of a return receipt is not fatal
because even without a signed receipt, proof of service may be established
under CR 4(i)(2) by “other evidence of delivery to the addressee satisfactory to
the court.” CR 4(i)(2). But this provision does not excuse compliance with CR
4(i)(1)(D). It simply provides a mechanism to present other evidence that
establishes delivery, if despite the use of an appropriate form of mail under CR
4(i)(1)(D), a signed receipt is unavailable.
CR 4(i)(2) does not prescribe the nature or quantum of evidence required.
The evidence must be “satisfactory to the court.” CR 4(i)(2). As previously
explained, where key facts are not in dispute, whether service was proper is a
question of law. See Heinzig v. Seok Hwang, 189 Wn. App. 304, 310, 354 P.3d
943 (2015). But, as to the precise issue of whether a party has presented
sufficient evidence of delivery of a summons and complaint by mail, the express
language of CR 4(i)(2) requires deference to the trial court. See, e.g., West v.
Osborne, 108 Wn. App. 764, 770, 34 P.3d 816 (2001) (trial court decision to
transfer case under RCW 4.12.030(2) upon “satisfactory proof” of a reason to
believe an impartial trial cannot be had is reviewed for abuse of discretion); State
v. Noltie, 116 Wn.2d 831, 835, 837, 809 P.2d 190 (1991) (reviewing for abuse of
discretion trial court decision on challenge to juror under RCW 4.44.170, based
on proof which “satisfies the court” that the challenged juror cannot try the issue
9
No. 82542-9-I/10
impartially). Guenther suggests in his reply brief that we must review the court’s
determination under CR 4(i)(2) de novo, but he cites no relevant authority and
fails to address the language of the rule.
Here, after Joyia challenged the sufficiency of service of process and
produced evidence that Guenther did not comply with CR 4(i)(1)(D), Guenther
did not produce a return receipt or evidence of delivery of the summons to Joyia.
Guether provided only evidence indicating that the person who mailed the
documents selected “international mailing” to calculate the postage and “added in
the extra fees” for certified mailing. Guenther insists that the notice of
appearance and Joyia’s answer to the complaint are “clear evidence that service
was sufficient and realized,” but this argument runs counter to several long-
standing principles.
First, it is well established that mere receipt of process and actual notice
alone do not establish valid service of process.5 Haberman v. Wash. Pub. Power
Supply Sys., 109 Wn.2d 107, 177, 744 P.2d 1032, 750 P.2d 254 (1987).
Second, filing a notice of appearance does not waive the defense of insufficient
service of process. See CR 4(d)(5) (voluntary appearance of a defendant does
not preclude challenge to jurisdiction, insufficiency of process, or insufficiency of
service of process pursuant to Rule 12(b)); see also Adkinson v. Digby, Inc., 99
Wn.2d 206, 209, 660 P.2d 756 (1983) (notice of appearance does not waive
challenge to sufficiency of service of process; to hold otherwise would ignore the
civil rules and reinstitute “long-abolished distinction between special and general
5 As discussed infra, actual notice is relevant to the relation back analysis under CR
15(c).
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No. 82542-9-I/11
appearances”). And finally, CR 8(c) requires a defendant to affirmatively set forth
affirmative defenses in an answer; and a defendant generally waives any
affirmative defense not so asserted. See Lybbert v. Grant County, 141 Wn.2d
29, 44, 1 P.3d 1124 (2000). It cannot be the case that an answer required to
preserve the defense of insufficient service of process serves to defeat that
defense. Guenther cites no authority that supports his position. Reliance on the
notice of appearance and/or Joyia’s answer to infer valid service of process
clearly undermines the law that establishes the legal effect of those actions.6
Guenther’s reliance on CR 4(i)(1)(E) (service in a foreign country
“pursuant to the means and terms of any applicable treaty or convention”) and
the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, Nov. 15, 1965, T.I.A.S. No. 6638
(U.S. Treaty), 20 U.S.T. 361, 658 U.N.T.S. 163 (Hague Convention) is likewise
unavailing. While the Hague Convention does not prohibit service by mail, it
does not affirmatively authorize such service. Water Splash, Inc. v. Menon, __
U.S. __, 137 S. Ct. 1504, 1513, 197 L. Ed. 2d 826 (2017). So for purposes of CR
4(i)(1)(E), the “means and terms” of the Hague Convention do not include any
provision for service on foreign defendants by certified mail. As the Supreme
6 In his reply brief, Guenther cites Northwick v. Long, 192 Wn. App. 256, 364 P.3d 1067(2015), to argue that Joyia did not meet his burden to demonstrate improper service. Northwick
involved personal service in Washington, in that case, service on the defendant’s father at the
father’s home. 192 Wn. App. at 259. While the defendant claimed he no longer lived in the
home, he failed to rebut evidence provided by the plaintiff, including deposition testimony from the
process server about his father’s statements at the time of service and records showing the
father’s address as the address on file for the defendant. Northwick, 192 Wn. App. at 264.
Northwick is inapposite. Here, Joyia submitted evidence supporting the motion to dismiss that
showed a lack of compliance with CR 4(i)(1)(D). In response, Guenther failed to provide a return
receipt as proof of service or otherwise present evidence of delivery to Joyia to the court’s
satisfaction. See CR 4(i)(2).
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No. 82542-9-I/12
Court held, service by mail under the Hague Convention is permissible if (1) “the
receiving state has not objected to service by mail,” and (2) “service by mail is
authorized under otherwise-applicable law.” Water Splash, 137 S. Ct. at 1513.
In this case, the “otherwise-applicable law” is set forth in CR 4(i)(1)(D).7
The trial court did not err in dismissing Guenther’s complaint based on his
failure to accomplish valid service of process in accordance with CR 4.8
IV
Guenther next challenges the trial court’s denial of his motion seeking to
add GPS Ltd as a defendant and for that amendment to relate back to the date of
the original complaint.9
“CR 15(c) allows plaintiffs who mistakenly sue incorrect defendants to
amend their complaints and add the correct defendants, provided the rule’s
requirements are satisfied.” Martin v. Dematic, 182 Wn.2d 281, 292-93, 340
P.3d 834 (2014). CR 15(c) also allows the addition of new parties after the
statutory limitation period has run. The rule provides:
Whenever the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading. An amendment
changing the party against whom a claim is asserted relates back if
the foregoing provision is satisfied and, within the period provided
7 Guenther’s brief on appeal quotes at length from the Ninth Circuit court’s decision in
Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004). Brockmeyer is entirely consistent with the
United States Supreme Court’s later decision in Water Splash, and neither case advances
Guenther’s position here.
8 Because we conclude that Guenther did not effectuate valid service under CR
4(i)(1)(D), it is unnecessary to reach Joyia’s alternative argument that service was also
insufficient because it did not comply with the requirements of Washington’s long-arm statute,
RCW 4.28.185.
9 Guenther’s motion focused on the requirements of CR 15(c), not CR 15(a), because he
sought, outside of the limitation period, to add a new defendant and for the amendment to relate
back to the timely original complaint.
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No. 82542-9-I/13
by law for commencing the action against the original party, the
party to be brought in by amendment (1) has received such notice
of the institution of the action that the new party will not be
prejudiced in maintaining her or his defense on the merits, and (2)
knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought
against the new party.
CR 15(c). The party seeking to amend its complaint has the burden to prove the
conditions imposed by the rule are satisfied. Martin, 182 Wn.2d at 288-89. In
addition to the textual requirements of this rule, we impose a judicially-created
requirement that a plaintiff adding a new party can do so only if the plaintiff’s
delay in doing so was not due to inexcusable neglect. Martin, 182 Wn.2d at 288.
We review de novo a trial court’s decision on a motion under CR 15(c).10 Martin,
182 Wn.2d at 288.
Insofar as Guenther suggests that the judicially-created “inexcusable
neglect” prong of CR 15(c) no longer applies in Washington, he is incorrect. In
Perrin v. Stensland, 158 Wn. App. 185, 199, 240 P.3d 1189 (2010), we observed
that Washington’s adherence to inexcusable neglect as a prerequisite for relation
back no longer aligns with federal law interpreting the analogous federal civil rule.
While characterizing the United States Supreme Court’s reasoning for
abandoning the requirement in Krupski v. Costa Crociere S.p.A., 560 U.S. 538,
541, 130 S. Ct. 2485, 177 L. Ed. 2d 48 (2010), as “highly persuasive,” we
acknowledged that Washington State Supreme Court precedent adopting
10 Joyia argues that the standard of review is an abuse of discretion. See Caruso v.
Local Union No. 690 of Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,
100 Wn.2d 343, 351, 670 P.2d 240 (1983) (involving the addition of new claims). However, the
Supreme Court expressly clarified the de novo standard of review for determinations under CR
15(c), recognizing that a different standard of appellate review applies to motions for leave to
amend under CR 15(a). See Martin, 182 Wn.2d at 288.
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inexcusable neglect is binding authority. Perrin, 158 Wn. App. at 200 (“Only our
Supreme Court can decide that the ‘inexcusable neglect’ factor should lose its
place as an independent basis for denying relation back under CR 15(c).”).
Later, in Martin, our Supreme Court similarly recognized that federal
courts have eliminated the inexcusable neglect factor. 182 Wn.2d at 291 (citing
Krupski, 560 U.S. at 541). Nonetheless, because neither party in Martin
addressed the change in federal law or asked the court “to consider similarly
eliminating our ‘inexcusable neglect’ requirement,” the court did not reconsider
the issue. Martin, 182 Wn.2d at 291. Applying the requirement to the facts in
Martin, the court held that the defendant failed to show that its identity was
“easily ascertainable during the limitations period” and therefore failed to
demonstrate inexcusable neglect. Martin, 182 Wn.2d at 291-92. Subsequent
case law confirms that “inexcusable neglect” remains a component of relation
back under CR 15(c). See Price v. Gonzalez, 4 Wn. App. 2d 67, 73, 419 P.3d
858 (2018); Sweeney v. Adams County Pub. Hosp. Dist. No. 2, No. 32486-9-III,
slip op. at 5, (Wash. Ct. App. Oct. 25. 2016) (unpublished)
https://www.courts.wa.gov/opinions/pdf/324869.pdf.
Under Washington’s inexcusable neglect standard, the party opposing the
motion must make an initial showing that the correct defendant’s identity was
“easily ascertainable during the limitations period.” Martin, 182 Wn.2d at 290.
The burden then shifts to the plaintiff to “give a reason for failing to ascertain the
identity of the defendant.” Martin, 182 Wn.2d at 291. If the plaintiff cannot
provide a “reasonable excuse or show that he or she exercised due diligence,”
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No. 82542-9-I/15
the failure to name the correct party is the result of inexcusable neglect. Martin,
182 Wn.2d at 291.
The failure to name a party who is “apparent,” or “ascertainable upon
reasonable investigation,” is inexcusable. Teller v. APM Terminals Pac., Ltd.,
134 Wn. App. 696, 706-07, 142 P.3d 179 (2006); see S. Hollywood Hills Citizens
Ass’n v. King County, 101 Wn.2d 68, 78, 677 P.2d 114 (1984) (“information
necessary to properly implead the parties was readily available” but the plaintiff's
attorney “simply did not inquire”); see also Haberman, 109 Wn.2d at 174 (identity
of corporate defendants could have been easily discovered by plaintiffs from a
variety of public sources including documents on file with the secretary of state).
A party is charged with counsel’s failure to research and identify all necessary
parties. Teller, 134 Wn. App. at 707.
Where a party learns the identity of a missing party before the statutory
limitation period runs, failure to seek amendment of the complaint is generally the
result of inexcusable neglect. Segaline v. Dep’t of Labor & Indus., 169 Wn.2d
467, 478, 238 P.3d 1107 (2010). For instance, in Segaline, Croft, a Department
of Labor and Industries (Department) employee drafted a “no trespass” notice
and presented it to Segaline after he repeatedly conducted himself in a “coarse
manner” in a Department building. Segaline, 169 Wn.2d at 470-71. Segaline
sued the Department, and the Department informed him, in response to an
interrogatory, that Croft had drafted the notice. Segaline, 169 Wn.2d at 478.
Segaline did not move to amend his complaint to add Croft as a defendant until
nine months later, after the limitation period expired. Segaline, 169 Wn.2d at
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No. 82542-9-I/16
478. The court held that Segaline’s delay was inexcusable neglect.11 Segaline,
169 Wn.2d at 478.
Guenther asserts—on appeal and below—that he sued the wrong party
because of “legitimate confusion” about the identity of Joyia’s employer, given
that the Washington and Canadian entities have “substantially similar names.”
And, as below, Guenther’s briefing focuses on the two textual requirements of
CR 15(c). But we need not address those requirements, because where, as
here, a party seeks leave to add additional parties, “inexcusable neglect alone is
a sufficient ground for denying the motion.” Haberman, 109 Wn.2d at 174 (citing
N. St. Ass’n v. City of Olympia, 96 Wn.2d 359, 368, 635 P.2d 721 (1981)).
Guenther fails to acknowledge that he was aware of the mistake in August 2019,
more than two months before the limitation period expired. His own evidence
establishes that his counsel’s employee immediately verified that the information
provided about the identity of GPS Ltd was “correct.”
Under these circumstances, the record establishes that the identity of the
correct defendant was “easily ascertainable during the limitations period,” as
described in Martin, 182 Wn.2d at 290, and Guenther failed to provide a
reasonable excuse or show that he exercised due diligence. His failure to name
the correct defendant was the product of inexcusable neglect. The trial court did
not err in denying Guenther’s motion under CR 15(c).
11The Segaline court applied an abuse of discretion standard to the trial court’s
determination under CR 15(c), four years before the court clarified the de novo standard of
review. Segaline, 169 Wn.2d at 477-78.
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V
Finally, Guenther claims that the trial court abused its discretion by failing
to conduct an evidentiary hearing to determine whether both Joyia and GPS Ltd
had actual notice of the lawsuit within the limitation period and to resolve, through
witness testimony, whether the summons and complaint were delivered to the
intended recipients in Canada. CR 43(e) states that “[w]hen a motion is based
on facts not appearing of record the court may hear the matter on affidavits
presented by the respective parties, but the court may direct that the matter be
heard wholly or partly on oral testimony or depositions.” (Emphasis added.) This
rule is clearly permissive and does not require the trial court to hold an
evidentiary hearing on a motion, even when faced with conflicting factual
evidence. And here, Guenther waited for the court to rule on his motion before
belatedly requesting a hearing in his motion for reconsideration. Guenther has
not assigned error to the court’s order denying reconsideration. See RAP
10.3(a)(4) (appellant’s brief must include a “separate concise statement of each
error a party contends was made by the trial court”). And CR 59, which governs
motions to reconsider, does not permit a party to assert new issues that could
have been raised before entry of an adverse decision. JDFJ Corp. v. Int’l
Raceway, Inc., 97 Wn. App. 1, 7, 970 P.2d 343 (1999). Put simply, by not
requesting an evidentiary hearing before the court ruled, Guenther waived any
claim of error.12
12 Guenther contends that—notwithstanding the cited civil rule—Woodruff v. Spence, 76
Wn. App. 207, 210, 883 P.2d 936 (1994), mandated that the trial court hold an evidentiary
hearing. Not so. As to GPS Ltd, no such hearing was necessary because the facts concerning
the question of inexcusable neglect are undisputed. As to Joyia, there was no dispute involving
17
No. 82542-9-I/18
Affirmed.
WE CONCUR:
witness credibility—it is uncontested that the applicable rule was not followed. Moreover,
Woodruff applies only to service of process disputes, not to disputes concerning the amendment
of complaints.
18