Let me give you one good reason why you should carefully review affidavits of service from your process server: Street-Dybdahl v. Nguyet Huynh, 157 Wn. App. 408 (2010). This prudent practice especially holds true if you’re filing suit just before the statute of limitations runs on your client’s claim.
David Streeter-Dybdahl was hurt in a car accident in late September 2005. On Sept. 18, 2008, only two days before the statute of limitations ran, he filed a negligence suit against the other driver, Nguyet Huynh, in King County Superior Court.
On Nov. 20, 2008, defense counsel called Streeter-Dybdahl’s attorney and asked for proof and confirmation of service. There was no immediate response. Instead, only three days later, a process server tried to serve the complaint on Huynh at the Seattle address listed in the police report.
In his declaration of service, the process server said that he personally delivered the pleadings to Nguyet Huynh at defendant’s “residence and usual place of abode.” The recipient was described as a male Asian in his 30’s with brown hair, 4’10” tall, and weighing 140 pounds. There was one major problem with this description, however, as the real Nguyet Huynh is a female Asian.
On Dec. 23, 2008, Huynh answered the complaint and asserted insufficient service as an affirmative defense. By that time the 90-day tolling provision of RCW 4.16.170 had expired, so Streeter-Dybdahl didn’t have the option of again trying to serve the defendant.
Huynh later moved to dismiss, arguing that she had never been personally served and that she didn’t live at the Seattle address where the complaint was dropped off. In her supporting declaration, she said she is 5’1” tall and weighs 110 pounds, and that her husband is 49 years old and 5’3” tall (which ruled out any inference that her husband had received the papers). Huynh also said that she moved from the Seattle address to Lynnwood in 2002, and that she moved to her current Lynnwood home in April 2008. For good measure, she also submitted property records confirming that she bought the property at that time.
In his opposition, Streeter-Dybdahl submitted records from the Department of Licensing reflecting that Huynh had listed the Seattle residence as her current address since January 2006. He also offered King County records showing that Huynh had a prior ownership interest in the Seattle property, which she quitclaimed in 2006. (I’m not sure how that helped his cause, unless Streeter-Dybdahl was trying to impeach Huynh’s testimony that she had lived in Lynnwood since 2002.) And predictably, Streeter-Dybdahl further noted that the Seattle address was referenced in the police report as the defendant’s address.
The trial court also considered testimony from Huynh’s brother, who was living at the Seattle address when service was attempted. Although he apparently fit the description of the male described in the affidavit of service, the brother denied at his deposition that he ever saw or received the summons and complaint. He also testified that Huynh moved out of the Seattle residence around 2003 or 2004, and that she only came by once or twice a month to collect mail.
Although the trial court denied Hyunh’s motion to dismiss, the Court of Appeals (Division One) granted her motion for discretionary review (rarely a good sign for the party who initially prevails).
At the outset, Division One discussed the applicable procedural rules when an insufficient service defense is made. They aren’t too complicated:
1. The plaintiff has the initial burden of proof to establish a prima facie case of sufficient service.
2. An affidavit of service is presumptively correct.
3. The defendant must show service was improper by clear and convincing evidence.
Under the relevant statute, a defendant who is not served personally can also be served “by leaving 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.” RCW 4.28.080(15). As the Court of Appeals noted:
The term “‘[u]sual place of abode must be taken to mean such center of one’s domestic activity that service left with a family member is reasonably calculated to come to one’s attention within the statutory period for [the] defendant to appear.’”
157 Wn. App. at 413 (quoting from Sheldon v. Fettig, 129 Wn.2d 601 (1996)) (my emphasis).
Since Streeter-Dybdahl conceded that Huynh hadn’t been personally served, the issue was whether she had been validly served by substitute service. Resolving this question in Huynh’s favor, the Court of Appeals concluded that the record failed to establish that the Seattle address was the “center of her domestic activity.” For one thing, said the court, using a particular address for a “limited purpose” – e.g., listing it with DOL as a current address – isn’t a “critical factor” in determining this issue. Moreover, the court highlighted the brother’s testimony about how Huynh had moved out of the house in 2003 or 2004 and only came by once or twice a month to collect mail.
In Sheldon v. Fettig, supra, the Washington Supreme Court ruled that under certain circumstances, a defendant can have more than one house of abode if each is a center of domestic activity. In that case, substitute service was deemed proper because the defendant was a flight attendant who split time between her apartment in Chicago and her parents’ home in Seattle. But according to Division One, Sheldon was distinguishable:
[T]here was no evidence to suggest that Huynh actually resided at the Seattle house, much less split time between that house and her Lynnwood home. While Streeter-Dybdahl places much weight on the fact that mail was kept in a special box for Huynh at the Seattle house, there is no evidence that she was immediately notified or aware when mail came for her at that address; it was simply kept there for her in the event she came by. Such facts do not suggest that the Seattle house was the center of her domestic activity and that service left with a family member there is reasonably calculated to come to her attention within the statutory period for her to appear.
157 Wn. App. at 415.
As a fallback argument, Streeter-Dybdahl also contended that Huynh had waived her claim of insufficient service. As Division One observed, a defendant can waive this defense by engaging in dilatory conduct or conduct inconsistent with asserting the defense. For example, in Lybbert v. Grant County, 141 Wn.2d 29 (2000), waiver was found where the defendant “did not plead insufficient service, engaged in several months of discovery, discussed mediation, failed to respond to interrogatories inquiring about a possible insufficient service defense, and then asserted the defense after the statute of limitations ran.” The Court of Appeals further noted that to establish waiver, the plaintiff must show either “willful evasion of process,” or that by “lying in wait,” the defendant had deprived the plaintiff of the chance to fix the service defect. But none of those facts were present here. The record instead established, said Division One, that the process server mistakenly believed that he had served Huynh – and that Streeter-Dybdahl then failed to correct his error before the service deadline passed.
In sum, Street-Dybdahl v. Nguyet Huynh is another poignant reminder that defective service of process can be fatal to a given plaintiff’s claim. The best way to avoid this situation altogether is by filing your client’s complaint long before the statute of limitations runs. That way, if the defense is raised, you’ll have plenty of time to either conduct discovery on the defense and/or serve the defendant again. But if this isn’t possible because the client contacts you just before the statute is about to run, it wouldn’t hurt to keep the following in mind:
In car accident cases, don’t rely solely on the police report for the defendant’s address. Even if that address is “current” per DOL records, that fact alone won’t excuse defective service.
Check public records to corroborate the defendant’s current whereabouts.
Use an on line service like Accurint for Legal Professionals to obtain a cheap investigative report.
Carefully review the affidavit of service from your process server. Although an affidavit of service is presumptively correct, Streeter-Dybdahl shows how easily this presumption can be overcome.