Appeals court tosses suit based on insufficient
service of process
by Andrew Bergh
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
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
The plaintiff has the initial burden of proof to establish a prima facie
case of sufficient service.
An affidavit of service is presumptively correct.
The defendant must show service was improper by clear and convincing
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
[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.
WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his
practice to plaintiff's personal injury cases, including professional
liability and insurance bad faith.
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