Clifton Whidbee v. Pierce County, et al

Filing

FILED OPINION (SUSAN P. GRABER, SANDRA S. IKUTA and ANDREW D. HURWITZ) AFFIRMED. Judge: SSI Authoring, FILED AND ENTERED JUDGMENT. [10449601]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLIFTON WHIDBEE, individually,
Plaintiff-Appellant,

No. 14-36094
D.C. No.
2:14-cv-00683-RBL

v.
PIERCE COUNTY, a Washington
State Municipal Corporation;
EUGENE ALLEN, in his individual
capacity,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted March 7, 2017
Seattle, Washington
Filed May 26, 2017
Before: Susan P. Graber, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Ikuta

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WHIDBEE V. PIERCE COUNTY
SUMMARY*

Civil Rights
The panel affirmed the district court’s dismissal on statute
of limitations grounds of a suit brought under 42 U.S.C.
§ 1983 and state law.
The panel held that although 28 U.S.C. § 1448 and
Fed. R. Civ. P. 4(m) give plaintiffs additional time to effect
service of process, these rules do not extend or revive a state
statute of limitations that expired before removal. The panel
held that the period of time during which plaintiff could
commence his claims expired under a state statute of
limitations before defendants removed the action to federal
court, and the federal rules allowing additional time to effect
service of process on defendants following removal did not
extend or revive a state statute of limitations. Accordingly,
the district court properly dismissed plaintiff’s claims on the
ground that they were time barred before his case was
removed.

COUNSEL
Loren A. Cochran (argued) and Darrell L. Cochran, Pfau
Cochran Vertetis Amala PLLC, Tacoma, Washington, for
Plaintiff-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Alicia M. Burton (argued), Deputy Prosecuting Attorney;
Mark Lindquist, Prosecuting Attorney; Prosecuting
Attorney’s Office, Tacoma, Washington; for DefendantsAppellees.

OPINION
IKUTA, Circuit Judge:
Clifton Whidbee challenges the district court’s dismissal
of his federal civil rights and state negligence claims against
defendants Pierce County and Pierce County Sheriff’s Deputy
Eugene Allen. We affirm. The period of time during which
Whidbee could commence these claims expired under a state
statute of limitations before defendants removed the action to
federal court, and the federal rules allowing additional time
to effect service of process on defendants following removal
do not extend or revive a state statute of limitations.
I
Under Washington law, an action for “injury to the person
or rights of another” (with some exceptions not relevant here)
“shall be commenced within three years.” Wash. Rev. Code
§ 4.16.080(2). “For the purpose of tolling any statute of
limitations an action shall be deemed commenced when the
complaint is filed. . . .” Id. § 4.16.170.1 A plaintiff then has

1

Section 4.16.170 of the Revised Code of Washington is titled
“Tolling of statute—Actions, when deemed commenced or not
commenced” and states in full:

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90 days within which to serve process on at least one
defendant. Id. If, “following filing, service is not so made,
the action shall be deemed to not have been commenced for
purposes of tolling the statute of limitations.” Id. Reading
these statutes together, a personal injury action “shall be
deemed commenced” for purposes of tolling the statute of
limitations if the plaintiff files the complaint within three
years from the date of injury and if the plaintiff serves at least
one of the defendants no later than 90 days after filing the
complaint. If the plaintiff fails to do so, the action may be
time barred. Id.; see also Gross v. Sunding, 139 Wash. App.
54, 60 (2007).
A plaintiff suing a county must serve the county auditor,
Wash. Rev. Code § 4.28.080(1), and a plaintiff suing an
individual generally must serve “the defendant personally” or
“leav[e] 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,” id. § 4.28.080(16). Washington courts

For the purpose of tolling any statute of limitations an
action shall be deemed commenced when the complaint
is filed or summons is served whichever occurs first. If
service has not been had on the defendant prior to the
filing of the complaint, the plaintiff shall cause one or
more of the defendants to be served personally, or
commence service by publication within ninety days
from the date of filing the complaint. If the action is
commenced by service on one or more of the
defendants or by publication, the plaintiff shall file the
summons and complaint within ninety days from the
date of service. If following service, the complaint is
not so filed, or following filing, service is not so made,
the action shall be deemed to not have been
commenced for purposes of tolling the statute of
limitations.

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require strict compliance with the state’s service of process
requirements. See Haberman v. Wash. Pub. Power Supply
Sys., 109 Wash. 2d 107, 177 (1987) (as amended) (“[M]ere
receipt of process and actual notice alone do not establish
valid service of process.”); Gross, 139 Wash. App. at 60
(holding that action was time barred despite defendant’s
knowledge of plaintiff’s attempts to serve process). In the
case of a county defendant, “[s]ervice on anyone other than
the Auditor is insufficient.” Nitardy v. Snohomish County,
105 Wash. 2d 133, 135 (1986).
If the plaintiff fails to serve process no later than 90 days
after the complaint is filed, and the time for commencing an
action expires under Washington’s statute of limitations laws,
the defendant may raise the affirmative defenses that service
of process was insufficient and that the suit is time barred.
See, e.g., Jones v. Stebbins, 122 Wash. 2d 471, 480 (1993);
Boyle v. Clark, 47 Wash. 2d 418, 423–24 (1955). But those
defenses may be waived if a defendant fails to raise them.
See Jones, 122 Wash. 2d at 480; Boyle, 47 Wash. 2d at
423–24.
II
We now turn to the facts of this case. On November 19,
2010, the Pierce County Sheriff’s Department executed a
search warrant on Whidbee’s home. In connection with
executing the warrant, Deputy Allen threw a flash-bang
grenade into the house, which burned Whidbee’s right arm
and lower abdomen. Whidbee was arrested and detained at
the Pierce County Jail until November 24, 2010.
On October 10, 2013, Whidbee filed a complaint in
Washington state court against Pierce County and Allen,

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alleging claims under 42 U.S.C. § 1983 and state law. “The
applicable statute of limitations for actions brought pursuant
to 42 U.S.C. § 1983 is the forum state’s statute of limitations
for personal injury actions.” Carpinteria Valley Farms, Ltd.
v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir.
2003). Therefore, Washington’s three-year personal injury
statute of limitations applied to all of Whidbee’s claims.
Under Washington law, the time within which to bring an
action is tolled while a person is in custody. See Wash. Rev.
Code § 4.16.190. Therefore, the parties agree that Whidbee
had until November 24, 2013 to commence his § 1983 and
state-law personal injury claims and that his complaint was
timely. See id. §§ 4.16.080, 4.16.170.
After timely filing his complaint, Whidbee had 90 days,
until January 8, 2014, to serve Pierce County or Allen with
process. See id. § 4.16.170. Whidbee failed to do so.
Whidbee’s process server, ABC Legal Services, Inc., served
the Pierce County Risk Management Office with a copy of
Whidbee’s state court summons and complaint, but failed to
serve the summons on the Pierce County Auditor, as required
by state law. See id. § 4.28.080(1). ABC Legal Services also
failed to serve Allen. See id. § 4.28.080(16). Indeed, ABC
Legal Services did not serve Allen until April 2014 and did
not serve the Pierce County Auditor until August 2014. As
a result, the time for commencing an action against the
County and Allen expired on January 8, 2014. See id.
§§ 4.16.170, 4.16.080.
In May 2014, Allen and Pierce County removed the case
to federal court and moved to dismiss, arguing, among other
things, that Whidbee failed to commence the action within the
statute of limitations period prior to removal. The district
court granted the motion.

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On appeal, Whidbee raises two arguments. First, he
argues that once his case was removed to federal court, he
had an additional 120 days to serve process on the defendants
under 28 U.S.C. § 1448 and Rule 4(m) of the Federal Rules
of Civil Procedure. Because he served process on Allen and
Pierce County within the additional 120 days, Whidbee
contends, his action commenced before the time for bringing
his action had expired. Second, Whidbee argues that, because
he substantially complied with the federal requirements for
service of process when he served the Pierce County Risk
Management Office with a copy of his state court summons,
he should be deemed to have served Pierce County within
90 days after filing his complaint.
III
Our analysis of Whidbee’s arguments requires
consideration of how federal courts address service of process
and statute of limitations defenses in state cases that have
been removed to federal court. We review de novo whether
a case should be dismissed on statute of limitations grounds.
Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003).
When a case is removed from state court to federal court,
the question whether service of process was sufficient prior
to removal is governed by state law. See Lee v. City of
Beaumont, 12 F.3d 933, 936–37 (9th Cir. 1993), overruled on
other grounds by Cal. Dep’t of Water Res. v. Powerex Corp.,
533 F.3d 1087 (9th Cir. 2008). However, in “all cases
removed from any State court to any district court of the
United States,” a plaintiff may serve process upon removal if
service of process was defective or was not attempted before

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removal. 28 U.S.C. § 1448 (emphasis added).2 By allowing
plaintiffs to serve process on defendants after removal, this
statute ensures that all defendants are apprised “of the
pendency of the action” in federal court and are afforded “an
opportunity to present their objections,” so as to meet the
requirements of due process. Mullane v. Cent. Hanover Bank
& Tr. Co., 339 U.S. 306, 314 (1950).
The Federal Rules of Civil Procedure govern service of
process in federal court, see Fed. R. Civ. P. 4, and apply to a
civil action after removal, see Fed. R. Civ. P. 81(c)(1). “Rule
4 is a flexible rule that should be liberally construed so long
as a party receives sufficient notice of the complaint.” Direct
Mail Specialists, Inc. v. Eclat Computerized Techs., Inc.,
840 F.2d 685, 688 (9th Cir. 1988) (quoting United Food &
Commercial Workers Union v. Alpha Beta Co., 736 F.2d
1371, 1382 (9th Cir. 1984)). Thus, unlike Washington law,
federal law does not require strict compliance with service
requirements.
At the time Whidbee’s case was removed to federal court,
Rule 4(m) provided:

2

28 U.S.C. § 1448 states in full:
n all cases removed from any State court to any district
court of the United States in which any one or more of
the defendants has not been served with process or in
which the service has not been perfected prior to
removal, or in which process served proves to be
defective, such process or service may be completed or
new process issued in the same manner as in cases
originally filed in such district court.

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If a defendant is not served within 120 days
after the complaint is filed, the court—on
motion or on its own after notice to the
plaintiff—must dismiss the action without
prejudice against that defendant or order that
service be made within a specified time. But
if the plaintiff shows good cause for the
failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m) (2014).3 Therefore, once a case is
removed to federal court, a plaintiff has a specified number
of days to effect service of process on all defendants,
regardless whether the plaintiff failed to serve process in state
court before the deadline for commencing an action had
passed.
Although § 1448 and Rule 4(m) give plaintiffs additional
time to effect service of process, these rules do not extend or
revive a state statute of limitations that expired before
removal. If the period of time for bringing an action expired
under state law before the action was removed to federal
court, a defendant can raise the state statute of limitations as
an affirmative defense in federal court. See Fed. R. Civ. P.
8(c), 81(c). Moreover, “[t]he length of the limitations period,
and closely related questions of tolling and application, are to
be governed by state law.” Silva v. Crain, 169 F.3d 608, 610
(9th Cir. 1999) (quoting Wilson v. Garcia, 471 U.S. 261, 269
(1985)). Because it must give effect to the state’s statute of
limitations, a federal court has no authority to extend the

3

Effective December 1, 2015, Rule 4(m) was amended to require
service of process within 90 days, rather than 120 days, of the filing of the
complaint.

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state-defined period in which a plaintiff can bring an action,
even though the court must extend the time in which a
plaintiff can serve process on defendants under § 1448.
The Third and Eighth Circuits have likewise concluded
that a federal court does not have the authority to give a
plaintiff additional time to bring an action that expired under
state law prior to removal. See Witherow v. Firestone Tire &
Rubber Co., 530 F.2d 160, 166–68 (3d Cir. 1976); Marshall
v. Warwick, 155 F.3d 1027, 1033 (8th Cir. 1998). While we
agree with the conclusion in these cases, we do not agree with
their reasoning. In Witherow, the plaintiff failed to serve the
defendant properly under Pennsylvania law within the statute
of limitations period before the defendant removed the action
to federal court. 530 F.2d at 168. The Third Circuit affirmed
the dismissal of the action, holding that the plaintiff was not
entitled to serve process on the defendant after removal. In
reaching this conclusion, the Third Circuit referenced, but did
not interpret, the language of § 1448, and instead reasoned
that “[t]o apply [§ 1448] to the circumstances of this case
would constitute that statute a pro tanto abrogation of
Pennsylvania’s statute of limitations.” Id. at 167. Similarly,
in Marshall, the plaintiff failed to serve the defendant under
South Dakota law within the statute of limitations period
before removal to federal court. 155 F.3d at 1033. The
Eighth Circuit followed Witherow and affirmed the district
court’s dismissal based on insufficient service of process. Id.
The conclusion in Witherow and Marshall—that a
plaintiff cannot serve process in federal court if process was
untimely in state court for purposes of a state statute of
limitations—is contrary to the plain language of § 1448,
which allows for service of process in “all cases removed
from any State court to any district court of the United

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States.” (Emphasis added). Moreover, it conflates service of
process with the statute of limitations, which serve quite
different functions: service of process provides defendants
with sufficient notice “to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections,” Mullane, 339 U.S. at 314, while
statutes of limitations “prevent[] surprises through the revival
of claims that have been allowed to slumber until evidence
has been lost, memories have faded, and witnesses have
disappeared,” Gabelli v. SEC, 133 S. Ct. 1216, 1221 (2013)
(quoting R.R. Telegraphers v. Ry. Express Agency, Inc.,
321 U.S. 342, 348–49 (1944)). There is no basis in federal
law for holding that the expiration of a state statute of
limitations bars a plaintiff from notifying all defendants that
they are subject to suit; even if a claim has expired under a
state statute of limitations, a defendant can still waive this
affirmative defense. Therefore, we agree with Witherow and
Marshall only to the extent they hold that removal to federal
court cannot extend or revive a state statute of limitations that
expired prior to removal.
IV
We now turn to Whidbee’s arguments. First, Whidbee
claims that he commenced his action within the time required
under Washington law because he served process on Allen
and Pierce County within the additional 120 days provided by
§ 1448. We reject this argument because, as in Witherow and
Marshall, it conflates federal service of process with the state
statute of limitations. Although § 1448 and Rule 4(m)
allowed Whidbee to serve process on Allen and Pierce
County after removal, these laws do not change the period of
time for commencing an action under the state statute of
limitations. Because that time for commencing the action

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expired before the case was removed to federal court, the
defendants were entitled to raise the state statute of
limitations as an affirmative defense. Whidbee did not assert
any other ground for tolling the statute of limitations to the
district court, and therefore waived any such arguments.
We also reject Whidbee’s argument that his service on the
Pierce County Risk Management Office prior to removal
should be construed as sufficient service on Pierce County
under the more flexible federal service of process
requirements. The sufficiency of Whidbee’s pre-removal
service of process is governed by Washington law, not by
Rule 4 of the Federal Rules of Civil Procedure. See Lee,
12 F.3d at 936–37. Whidbee does not (and cannot) argue that
his pre-removal service of process complied with Washington
law. Accordingly, the district court properly dismissed
Whidbee’s claims on the ground that they were time barred
before his case was removed.4
AFFIRMED.

4
The district court also dismissed the action on the ground that
Whidbee could not perfect service of process under 28 U.S.C. § 1448 after
removal, relying on Witherow and Marshall. Although this reasoning was
incorrect, we may affirm the district court on any basis supported by the
record. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987).