PS 102 – Chapter 5 – Article 2 – Non Resident Motorist Act – Harvey v Obermeit
Published Opinion
Court of Appeals Division 1
65846-8
Facts
Harvey was injured when he and Obermeit were involved in a car accident on August 4, 2006. Obermeits’ address in Maple Valley was noted on the accident report.
On July 23, 2009, Harvey filed a negligence action against Obermeit. He hired a private investigator that searched the following databases which led to the same address listed on the accident report:
- Washington State Department of Licensing and vehicle databases
- The King County Assessor’s office
- The IRB/Accuprint skip trace database.
Harvey hired a process server, Alex Conley, who made two or four unsuccessful service attempts between August 9 and August 18, 2009. Harvey then decided to effect substitute service under the nonresident motorist statute, RCW 46.64.040.
On September 22, Harvey served the secretary of state with the summons and complaint and the last known address for Obermeit. The same day, he sent a “Declaration of Plaintiff Regarding Compliance with RCW 46.64.040,” containing notice of service on the Washington secretary of state, and a “Declaration of Plaintiff’s Counsel Regarding Compliance with RCW 46.64.040” to Obermeits’ address by certified mail, with return receipt requested.
The secretary of state sent the summons and complaint to Obermeit by certified mail. On September 23, Obermeit received and signed the return receipt for the documents sent by Harvey.
After receiving notice of the lawsuit, Obermeits’ insurer retained defense counsel. On October 15, 2009, Obermeits’ counsel sent a notice of appearance to Harvey’s counsel. From October 15 to October 21, Obermeits’ counsel had no other contact with Harvey.
The 90-day service period expired on October 21, although Obermeit and the trial court assumed it expired on November 1, 2009. On November 2, Obermeit filed an answer that asserted affirmative defenses regarding Harvey’s failure to serve process as required by law, lack of jurisdiction, and expiration of statute of limitations.
On or about April 9, Obermeit retained a medical expert witness and made a CR 35 discovery request that Harvey submit to a medical examination. Harvey filed an opposition to Obermeits’ motion around April 23 and a reply in support of his own motion around April 28. In support of his opposition to Obermeits’ motion to dismiss, Harvey included the declaration of Alex Conley, III, and dated April 12, 2010. Conley’s declaration indicated that he made four service attempts on:
- August 9 at 7:55 a.m.
- August 16 at 8:55 a.m.
- August 17 at 7:00 a.m.
- August 18 at 10:00 p.m.
He asserted that during his attempts, he:
- Inspected garbage cans and say that they were empty.
- Placed papers clips on the tires of cars to see if they moved before his next attempt and later saw the paperclips had not moved.
- Spoke to neighbors who told him that the Obermeits would take off for weeks at a time.
At the May 7 hearing, the trial court did not rule on the motions but instead set the matter for a fact–finding hearing on June 18, citing the need for a factual determination as to Harvey’s efforts to find Obermeit. Harvey objected to a fact-finding hearing.
At the June 18 hearing, the attorneys questioned Conley, the process server. He testified that he made three service attempts in the early morning hours on August 9, 16, and 17 and one attempt at 10:00 p.m. on August 18.
Conley acknowledged that his declaration of attempted service indicated two attempts but his later declaration indicated four. He explained that he included the extra two attempts at service not detailed in the declaration of attempted service because he wanted to give his client extra attempts at service when he was in the Maple Valley area.
He testified that he sometimes made up to ten attempts at service, depending on what the client wanted. He explained that he placed paper clips on the tires of two cars and later saw that the paper clips had not moved. Conley saw only two cars at the address and did not know how many cars were registered to that address.
Conley also testified that the neighbors did not tell him that the Obermeits took off for weeks at a time, but rather that they took trips on the weekends.
The trial court made an oral ruling. It found that Conley was not credible and concluded that, even assuming four service attempts were made, they were not adequate to show due diligence to personally serve Obermeit. It entered written findings of fact and conclusions of law and dismissed the lawsuit on July 7, 2010. It concluded that service on the secretary of state was improper because Obermeit was found within the state but not personally served; Harvey did not make a due and diligent search; Harvey lacked personal jurisdiction over Obermeit; and the statute of limitations had expired.
Specific Issues
Is a due and diligent effort to locate and serve a defendant a prerequisite to using RCW 46.64.040? Yes
Are two to four service attempts adequate to be upheld as a due and diligent effort? No
Is a process server’s credibility dependent upon providing the court with a consistent and thorough history of all efforts made to effect service? Yes
Should all information regarding the location of, or locating of, a defendant be made available to the process server? – Yes
If service is not upheld, does the court have jurisdiction over a defendant? No
Holdings
- The plaintiff, through his attorney and process server, failed to make a due and diligent effort to locate and serve the defendant.
- Since service on the defendant was not valid the trial court appropriately dismissed the case due to a lack of jurisdiction over the defendant.
- The court also concluded that even if Conley made four service attempts, Harvey still did not show due diligence.
Reasoning
The main disputed fact is whether Conley made two or four service attempts. Conley’s September 2009 declaration of attempted service referenced two attempts. But Harvey claims that Conley in fact made four attempts, as stated in Conley’s April 2010 declaration. Both of the additional service attempts described in Conley’s April 2010 declaration would have taken place before September 2009, and thus it is unclear why they were not described in Conley’s September 2009 declaration. The trial court heard Conley’s testimony to clarify this and found him not credible.
NOTE: See page 8 of the decision for information about findings 14, 16, and 17.
Finding 17 is supported by substantial evidence because during his testimony, Conley contradicted what was stated in his declarations by denying that the neighbors said the Obermeits left for weeks at a time. Instead, he testified, the neighbors told him the Obermeits took trips on weekends.
Regarding finding 16, Conley testified that he “wasn’t happy with the service” that he had given his client after the two initial service attempts, so he wanted to make a couple more attempts. Conley also testified that he sometimes made up to ten attempts to serve a defendant. While this testimony did not support the finding that Conley felt that his attempts at service as a whole were inadequate, it supports the finding that he felt his first two attempts were inadequate, and we rely upon the finding only to the latter extent.
Finally, regarding finding 14, we agree with Harvey that there is no evidence that Conley knew four vehicles were registered to the address, but this challenge is not well taken in light of the evidence that Harvey was aware of this fact. Harvey’s skip trace effort revealed that Obermeit had four vehicles registered to him at the Maple Valley address.
C4PSE Comment
It is vital as process servers that our declarations and affidavits report exactly what, where, and when we did something. If 5 attempts were made then our declaration should report all 5 attempts, not 4 because there were no changes between two and not 6 because we want to make it look like we did more than we did. Just report what was done.
No professional process server should be “less than credible” in the eyes of the court.
Special Note
The Non Resident Motorist Statute, RCW 46.64.040, was amended in 2003 and again in 2011.
See the course lesson on this topic. See also Huff vs Budbill.
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.
