When “Secondhand” Personal Service of Process is Effective

The Issue.  A plaintiff starts a lawsuit by filing a complaint in court and serving the defendant with the summons and complaint within 90 days of the filing date.  For the court to have jurisdiction over the defendant, the defendant must be properly served with the summons and complaint, either personally or by substitute service.  Substitute service typically occurs when a process server serves the defendant by handing the summons and complaint to someone 18 years old or older who lives with the defendant.  Personal service typically occurs when a process server personally hands the summons and complaint to the defendant.  In Scanlan v. Townsend, No. 89853-7 (Nov. 2014), the Washington Supreme Court decided an interesting issue: whether a process server serving a defendant by handing the summons and complaint to her father at his home, where the daughter did not live, was effective service when the father and daughter admit the father handed the daughter the summons and complaint within 90 days of the date the complaint was filed in court.

The Facts.  Scanlan and Townsend were in a car accident on 10/28/08.  On 10/27/11 Scanlan filed the complaint.  A process server tried to serve Townsend at a home in Puyallup on 12/8/11 but the person who answered the door said he did not know Townsend.  On 12/21/11 at a Vancouver, Washington home, the process server served Townsend by handing a man who identified himself as Townsend’s father the summons and complaint.  The process server testified that the father said Townsend lived with the father.  But the father denied making that statement.  Nonetheless, the father and Townsend both admitted that days later the father handed the summons and complaint to Townsend.  Relying on RCW 4.28.080(15), Townsend moved to dismiss the lawsuit for lack of service because she did not live in her father’s home.  Scanlan, on the other hand, argued Townsend did not need to live with her father for service to be effective–as the father was qualified to serve the documents on Townsend.  The trial court agreed with Townsend and dismissed the lawsuit for lack of service.  The Court of Appeals agreed with Scanlan and reversed the trial court.  Townsend appealed.

The Law.  Under RCW 4.28.080(15), service of process can be made “to the defendant personally, or 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.”  Under CR 4(c), “any person over 18 years of age who is competent to be a witness in the action, other than a party” may serve process.

The Court’s Decision.  The Washington Supreme Court identified the issue as one about personal service, not substitute service.  RCW 4.28.080(15) is clear: substitute service was not effective here because Townsend did not live with her father.  Scanlan got around this by framing the issue as whether “secondhand” personal service was effective–e.g., the father admittedly handing the documents to Townsend a few days after he received them from the process server.  Because the father was over 18 years of age, competent, and not a party to the lawsuit, the Court held he was qualified to serve his daughter (albeit unknowingly) by “secondhand” personal service; affirming the Court of Appeals.

The Take-Away.  If you serve a defendant by substitute service shortly before the statute of limitations expires and the defendant moves to dismiss the case because he or she didn’t live at the home where the documents were delivered: (1) don’t assume you’re out of luck, (2) consider deposing the person who was given the summons and complaint by the process server, and (3) if you discover that person handed the documents to the defendant, then frame the issue as the effectiveness of personal “secondhand” service, not substitute service.