Cook Productions, LLC v. Doe 1 et al

Filing 62

MINUTE ORDER re Plaintiff's 57 Response to Order to Show Cause construed as Motion for Extension of Time to Serve Amended Complaint on Steve Austin ; The Court is satisfied an additional extension of time to serve is warranted and EXTENDS the deadline to effect service to 9/25/2017 ; Plaintiff's renewed motion for alternative service by mail is DENIED. Authorized by Judge Thomas S. Zilly. (SWT) (cc: Thomas Swanicke and Yookyng Pak via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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COOK PRODUCTIONS, LLC,

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Plaintiff,
C16-1884 TSZ
v.
MINUTE ORDER
THOMAS SWANICKE, et al.,

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Defendants.

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The following Minute Order is made by direction of the Court, the Honorable
13 Thomas S. Zilly, United States District Judge:
(1)
Having reviewed plaintiff’s Response to the Order to Show Cause, docket
no. 57, the Court construes plaintiff’s response as a motion for extension of time to serve
the Amended Complaint on defendant Steven Austin and a renewed motion for leave to
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permit service by mail. The Court is satisfied an additional extension of time to serve is
warranted and EXTENDS the deadline to effect service to September 25, 2017.
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(2)
With regard to plaintiff’s request to serve by mail, the Court rules as
17 follows. The Federal Rules of Civil Procedure authorize service in any manner provided
by the law of the state in which the court sits. Fed. R. Civ. P. 4(e)(1). RCW 4.28.080
18 sets forth the methods by which personal service can be effected under Washington law.
Washington permits substitute service by mail where the plaintiff “sets forth the
19 following facts: (1) that the defendant could not be found in Washington after a diligent
search, (2) that the defendant was a resident of Washington, and (3) that the defendant
20 had either left the state or concealed himself within it, with the intent to defraud creditors
or avoid service of process. Pascua v. Heil, 126 Wn. App. 520, 526 (2005) (citing RCW
21 4.28.100(2)); see also Washington Civil Rule 4(d)(4) (authorizing substitute service by
mail “[i]n circumstances justifying service by publication”). Proof of intent to avoid
22 service is not required, but a plaintiff must set forth facts sufficient for the court to infer
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MINUTE ORDER - 1

1 that plaintiff has been unable to effect service because the defendant is intentionally
avoiding it. See Boes v. Bisiar, 122 Wn. App. 569, 577 (2004). RCW 4.28.100(2) does
2 not authorize substitute service merely because the plaintiff has been unable to locate the
defendant despite diligent efforts. Id. (quoting Bruff v. Main, 87 Wn. App. 609, 611
3 (1997)). Although plaintiff has unsuccessfully attempted to serve defendant Austin on
14 occasions—six times between April 27, 2017, and May 8, 2017, and 8 times between
4 June 1, 2017 and June 10, 2017—the facts set forth in the Affidavits of Service, docket
nos. 33, 42, are insufficient to give rise to an inference that plaintiff’s inability to effect
5 service was due to defendant Austin’s intentional avoidance. Mere failure to come to the
door does not constitute evasion of service. Weiss v. Glemp, 127 Wn.2d 726, 734 (1995).
6 There is no indication that defendant Austin is aware of this lawsuit such that the
unsuccessful attempts at service could be construed as intentional avoidance, nor is there
7 evidence that the process servers were “turned away” or “denied access” as plaintiff
suggests. In fact, there is no evidence that defendant Austin was present at the residence
8 during any of the unsuccessful attempts at service.1 Neither of the process servers
observed anyone on the property and neither heard any noise from inside the house other
9 than barking dogs. Affidavits of Service, docket nos. 33, 42. On this record, the Court
remains unsatisfied that defendant Austin is intentionally avoiding service and
10 accordingly, plaintiff’s renewed motion for alternative service by mail is DENIED.
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(3)
record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 27th day of July, 2017.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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Although on two occasions one of the process servers noted a grey Dodge pickup truck
not previously observed on the property, Affidavit of Service, docket no. 42, there is no evidence
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MINUTE ORDER - 2