RCW 4.28.080(16)
In all other cases, 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.
In the previous article we discussed personal (in hand) service in some detail. If you have not read that article then please do so now as it lays out considerable ground work for this article on abode service.
Here we are going to probe and discuss the third and final clause in paragraph 16: “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.”
Of the entire body of case law surrounding the topic and concept of service of legal process this clause has received the most attention by our courts. This means, since the courts would not notice it if cases hinging on its interpretation were not in dispute, it is the subject of considerable scrutiny, especially by defense attorneys.
As noted elsewhere in this course, service of process is fact specific and a minor change in the facts can overturn a server’s Proof of Service and create a liability nightmare for the server and his client. It can also be reasonably stated that this mode of service (referred to variously as abode service, substitute service, or residence service) is used more than any other mode described in RCW 4.28.080.
The provision for abode service places the process server in a bit of a quandary. As evidenced by the body of case law surrounding it, the method is dangerous to use. At the same time, it is available for use when the servee is not available for in hand service. Therefore, two obvious situations exist, neither of which is favorable to the server.
First, if the server uses abode service there is an increased risk of the service being over turned. Second, if the server doesn’t use abode service when it is available, and a statute of limitations passes or some other irreconcilable event occurs (for instance, the servee leaves the country), the server is again facing an increase in his own liability because he or she had a service rule available but failed to use it.
To say the least, this leaves the process server in a tenuous situation.
Let’s take a close look at “by leaving a copy of the summons at the house of his or her usual abode.”
The case law on this phrase is considerable and one of the defining cases is SHELDON v. FETTIG which the student will find in the Case Law section of this course. Note should be taken when reviewing Sheldon that it was a 4-3 split decision. A minor change in the facts of the case and the ruling may well have gone the other way.
Issues often revolve around the words “usual abode” and “then resident therein.”
Black’s Law Dictionary refers to a “place of abode” as “A person’s residence or domicile” and an “abode” as “A home; a fixed place of residence” and “domicile” as “The place at which a person is physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere” and “resident” as “A person who has a residence in a particular place.”
Continuing on a search for the meaning of these important words ultimately leads one in a circular pattern as the words begin to define each other. This is no trifling matter. As seen in Sheldon this concept was of considerable disagreement between the Justices.
To add more confusion and risk to the situation there is the possibility that the person with whom you are about to leave the summons may have lied to you when you asked the pertinent questions to establish 1) does the servee live there and 2) does this person in front of you live there? The statute requires both questions to be IN FACT “yes.” Not just that you were told “yes” but the answer must be “yes” in actual fact.
So where does this leave the process server? Imagine yourself, standing at a door, asking the young man who answered your knock if Ms. Doe lives there. He says “Yes, she’s my sister.” You then ask if he lives there. Again he says “Yes.” Do you leave the summons? If your client has not placed any limitations on the method of service you may use then the answer is “yes” you leave the documents and perform an abode service. But what if he lied about his own residency? Or his sister’s residency? The service would fail in either situation. Unfortunately such circumstances are not unknown and are the reason professional servers carry errors and omissions insurance.
Now let’s have a look at “with some person of suitable age and discretion then resident therein.”
“…with some person…” This means exactly what it says. The summons and associated documents must be presented to a person. If no one answers the door the documents can’t just be left on the door step or posted on the premises or put in the mail box or left with the cat.
“…of suitable age…” Unfortunately the RCW’s don’t define what this means. However, there is case law which looks back to 1889 when Washington Territory became Washington State. At that time the law specified age 14 as suitable age and the courts have followed that ever since.
“…and discretion…” The safe approach here is to look at the law’s requirements for who may be a witness. RCW 5.60.020 provides:
Every person of sound mind and discretion, except as hereinafter provided, may be a witness in any action, or proceeding.
And RCW 5.60.050 defines who is not competent to be a witness:
RCW 5.60.050
The following persons shall not be competent to testify:
1. Those who are of unsound mind, or intoxicated at the time of their production for examination, and
2. Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.
Although it may be difficult to determine with certainty whether or not a person is of suitable discretion in a 1 minute conversation it is best practice to avoid presenting the documents to a person who may be intoxicated or gives any other indication they are not of sound mind or not in full control of their faculties.
“…then resident therein…” This is one of the most dangerous (from a liability point of view) parts of this rule of service. When is a person a resident and when aren’t they? From a lay person’s position, the state Supreme Court has ruled in a somewhat contradictory fashion over the years. This can be explained by the way facts are different from case to case and by changes in the members of the court
Abode service is a double edged sword. It allows a method of service which can be used to great advantage but does so by increasing the liability risk for the process server.
Another dangerous situation (in terms of liability) can occur when the name of the servee is used by more than one person. This is not an unusual situation.
For example, the name John Smith will be held by multiple people in a community of almost any size. Juan Gonzalez, Phan Nuygen, etc. Common names exist in every ethnic group. There is also the problem created in families which have a propensity to name sons after their father which can result in Jr/Sr situations or even 1st, 2nd, 3rd, and (sometimes) 4th situations. It is vital to serve the correct person.
The law requires that a specific set of circumstances be met in order to say that service has been obtained and jurisdiction has been established. Failing any part of those requirements the courts will overturn the service. If a statute of limitations is involved a failed service is likely to have enormous implications for the server. Professional servers will document as much as possible concerning the assignment. For example:
| (A) | What, exactly, were the instructions from the client? |
| (B) | Who supplied the information used to locate the servee? |
| (C) | When and where was each attempt made? |
| (D) | Who did the server speak with and what was said? |
| (E) | Did the server conduct any trace work or diligence in locating the servee and, if so, of what did it consist? |
| (F) | Were there vehicles present where the service took place and what were the license numbers? |
| (G) | At the time of service, what did the person with whom the documents were left look like? What was said? |
The importance of good documentation cannot be over emphasized and is covered elsewhere in this course.
Service Instructions Summary
Present the documents to:
| Who | When & Where | |
| 1. | The servee personally | Anytime Anywhere |
| 2. | To a person of suitable age and discretion who resides with the servee | Anytime but only at the servee’s usual place of abode |
NOTE: Extreme caution should be used if someone, not fitting these descriptions, says they have been “authorized” to accept service.
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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.
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