PS 102 – Chapter 10 – Article 2 – Who May Serve – Scanlan vs Townsend
Summary
Scanlan vs Townsend
Court of Appeals Division I
No. 69106-6-I
Facts
Theresa Scanlan and Karlin Townsend were involved in a car accident on October 28, 2008. One day before the statute of limitations ran out, Scanlan filed a personal injury action against Townsend. Therefore the statute was tolled for 90 days until January 25, 2012
On November 8, 2011, Scanlan hired ABC Legal Services to locate and serve Townsend. ABC located two addresses, one in Puyallup and one in Vancouver. However, due to the various report dates and sources of the address information, it was not clear as to which was Townsend’s current address.
On December 8, 2011, an ABC process server attempted service at the Puyallup address. The resident there informed the process server that he didn’t know Townsend and Townsend didn’t live there.
On December 21, 2011, a process server went to the Vancouver address. The server made an abode service on Townsend by leaving the summons and complaint with “John Doe, co-resident/father.”
Three months later, Townsend filed a motion to dismiss the lawsuit for lack of service. Townsend claimed she had not resided at the Vancouver address since 1991 and, at the time of service, was residing in Auburn.
In response, Scanlan’s process server provided an amended declaration of service which included details of his conversation with the John Doe at the Vancouver address. Following is a portion of the amended declaration:
On the 21st day of December, 2011, at approximately 4:40 PM, I arrived at the address of 2124 NE 155TH Street, VANCOUVER, Clark County, WA 98686. I knocked on the front door and a gray-haired white male . . . opened the door. … I asked him if Karlin Townsend was there and he replied she was not. I recall saying I had some paperwork for her and asking him if she lived there and he responded] that she was staying there. He was very talkative and friendly, and I do believe I recall him also mentioning Karlin came back to live with us. I told him that I had some paperwork for her and this was the address I was given, I then asked if I could leave the documents with him. He replied he would take the documents and make sure she got them when she gets back. When I asked his name, he put out his hand to shake, said he was her father…. I shook his hand as I gave him my name, and then left.
Scanlan argued that, based on the father’s statement, an effective abode service had been made and that Townsend’s motion to dismiss should be dismissed. In the alternative, Scanlan requested the court conduct an evidentiary hearing to allow the parties to engage in discovery. The court granted the request to allow the parties to conduct discovery.
During her deposition, Townsend admitted her father delivered a copy of the summons and complaint to her at the end of December, 2011. Note that this was prior to the end of the 90 day tolling period.
Following discovery, Scanlan filed an amended response to the motion to dismiss for lack of service. Scanlan argued the record established Townsend’s father agreed to deliver a copy of the summons and complaint to Townsend and that he personally served her before December 30, 2011. In addition to Townsend’s deposition testimony, Scanlan pointed to the amended declaration of service that states Townsend’s father agreed to “take the documents and make sure [Townsend] got them,” and the notice of appearance Townsend filed on December 30, 2011. Again, this was prior to the end of the 90 day tolling period.
Townsend’s father provided a declaration in support of the motion to dismiss. It included the following:
I recall specifically telling the process server that Karlin was my daughter and that she did not reside at this address. My recollection is that I told the process server that my daughter had her own residence in the Greater Seattle area.
I am aware of a declaration from the Process Server that states that I may have indicated that Karlin had “come back to live with us”. I never made such a statement. In fact Karlin had recently purchased her own home in Auburn a few months previous to my conversation with the Process Server and, in any event, has not lived at my address in Vancouver, WA for a long time before the subject accident of October 28, 2008.
Townsend argued her father’s declaration established service of process was not effective because “[t]here can be no question that the Vancouver, WA address was NOT the usual abode of Defendant Karlin Townsend (now Emerson) at the time of purported service.” Townsend also argued that her father’s “accidental service” on her did not constitute valid service of process.
At the hearing on the motion to dismiss, Townsend’s attorney stipulated that her father delivered a copy of the summons and complaint to Townsend within the 90-day tolling period. Townsend argued service of the summons and complaint by her father was “fortuitous” and did not comply with the statutory proof of service requirements.
The trial granted the motion to dismiss the lawsuit for lack of service. The order states, in pertinent part: “Defendant’s deposition testimony that her father gave her the summons and complaint is insufficient proof of service.”
Specific Issues
- Was a proper abode service made by the process server at the Vancouver Address? No
- Must a process server have a contractual relationship with the plaintiff in order to accomplish service? No
- Did Townsend’s father meet the qualifications of a process server? Yes
- Did Townsend’s father’s delivery of the summons and complaint to her amount to an effective personal service? Yes
Holdings
The Court of Appeals held Townsend had been effectively served and reversed the trial court’s order of dismissal. The case was remanded back to the trial court.
Reasoning
It is not disputed that Townsend’s father delivered a copy of the summons and complaint to her before the end of the 90 tolling period. It also is not disputed that her father qualifies as a process server under the laws and court rules of the State of Washington.
The court found no requirement that the person who affects service must have a contractual agreement with the plaintiff to serve the defendant. Although the father’s service was “fortuitous” it still met the requirements and was valid.
Although Townsend’s father did not sign or provide a proof of service, Townsend’s own deposition testimony established proof of service, i.e. that she had received the documents from a person who qualified as a process server prior to the expiration of the 90 day tolling period.
C4PSE Comment
This case is somewhat similar to Brown-Edwards vs Powell which is also found summarized in PS 102. As in that case, the process server here was extremely fortunate that the defendant’s father delivered the documents to her before the tolling period expired.
Note that the process server’s and father’s recollections of events were quite different from each other. Had the defendant herself not admitted under oath (during a deposition) as to when she received the documents from her father it is entirely likely the Court of Appeals would have upheld the trial court’s dismissal of the case.
A careful examination of the process server’s amended declaration finds a couple of important issues.
First, the server didn’t ask the father if the defendant lived there with him. Establishing residency of both the person being served and the person with whom the documents are being left is vital to a proper abode style service.
Second, if the father was “talkative and chatty” then why didn’t the server get the father’s name instead of referring to him as “John Doe” in the declaration of service? Although the server asked for the name he allowed the father to control the conversation and get away without providing his name.
This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
