Gazarov v. State of Washington et al
Filing
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ORDER on Defendants' 11 Motion for Summary Judgment; Plaintiff's case is DISMISSED without prejudice for failure to timely and properly serve the defendants, signed by Judge Marsha J. Pechman. (SWT)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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ERIK GAZAROV,
Plaintiff,
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CASE NO. C17-1472 MJP
ORDER ON MOTION FOR
SUMMARY JUDGMENT
v.
STATE OF WASHINGTON, et al.,
Defendants.
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The above-entitled Court, having received and reviewed:
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1. Defendants’ Motion for Summary Judgment (Dkt. No. 11);
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2. Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (Dkt. No. 17);
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3. Defendants’ Reply in Support of Motion for Summary Judgment (Dkt. No. 23);
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all attached declarations and exhibits; and relevant portions of the record, rules as follows:
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IT IS ORDERED that Plaintiff’s case is DISMISSED without prejudice for failure to
timely and properly serve the defendants.
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ORDER ON MOTION FOR SUMMARY JUDGMENT - 1
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Background
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As this matter is being dismissed on procedural grounds, the substantive allegations of
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the complaint are not at issue here. Plaintiff initiated a lawsuit against the State of Washington
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and against a Washington State Patrol Trooper named Cody Walter. The matter was removed
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from state court.
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Defendants allege (and Plaintiff does not controvert) that service was attempted in the
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following fashion: Individual service was attempted on Cody Walter, with the process server
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filing a declaration that, on August 29, 2017, he “provid[ed] service to C. Klein, who confirmed
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to me that he was a WSP [Washington State Patrol] agent authorized to accept service on behalf
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of the Defendant named herein, and who did willingly accept service in this matter.” (Dkt. No.
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2-5.)
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Service on the WSP was attempted, according to the process server’s declaration, through
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the Washington State Attorney General’s Office. The document indicates that the process server
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“provid[ed] service to a staff person therein, who confirmed to me that he was authorized to
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accept service thereof, and who did willingly accept service in this matter.” (Id.)
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Discussion
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Neither service attempt is in accordance with the Federal Rules of Civil Procedure.
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Individual defendants must be served pursuant to FRCP 4(e), which requires service (1) in
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accordance with state law, (2) by delivering a copy of the summons and complaint personally to
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the individual, (3) by leaving a copy at the individual’s residence, or (4) by serving an authorized
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agent. FRCP 4(e)(1) – (2). Plaintiff’s process server declares that an agent of WSP was
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authorized to accept service for Walter, but Walter filed a declaration indicating that (as of July
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2016) he was no longer employed by WSP and no longer in this jurisdiction in August of 2017.
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ORDER ON MOTION FOR SUMMARY JUDGMENT - 2
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(Dkt. No. 12, Decl. of Walter at ¶ 2.) The WSP was thus not authorized to accept service on his
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behalf, and service has not properly been effected on him.
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FRCP 4(j)(2) requires that a state agency be served by either service on the agency’s
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chief executive officer or in accordance with state law. FRCP 4(j)(2)(A) – (B). The Washington
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state statute regarding service on a state agency clearly requires service upon the Attorney
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General or “by leaving the summons and complaint in the office of the attorney general with an
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assistant attorney general.” RCW 4.92.020 (emphasis supplied). Plaintiff’s declaration of
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service only indicates that “a staff person” in the AG’s office accepted service. The law is
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Washington is clear: service on a “staff person” (even one claiming authority to accept service)
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is insufficient, and the statute is strictly construed. Landreville v. Shoreline Comm’y College
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Distr. No. 7, 53 Wn.App. 330, 332 (1988). The State of Washington has not been properly
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served.
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Where defendants have not been properly served, the court lacks jurisdiction over them.
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S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). In the face of a challenge to service, the
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burden is on the plaintiff to establish valid service under FRCP 4. Brockmeyer v. May, 383 F.3d
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798, 801 (9th Cir. 2004).
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Conclusion
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Defendants raised the issue of improper service in their moving papers. Plaintiff made no
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response to Defendants’ arguments concerning the validity of service and has entirely neglected
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to carry his burden of proof in this regard. Without proper service, this Court has no jurisdiction
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to proceed, and accordingly DISMISSES Plaintiff’s claims without prejudice to re-assert them
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and cure the procedural defects noted above.
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ORDER ON MOTION FOR SUMMARY JUDGMENT - 3
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The clerk is ordered to provide copies of this order to all counsel.
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Dated: February 14, 2018.
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A
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Marsha J. Pechman
United States District Judge
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ORDER ON MOTION FOR SUMMARY JUDGMENT - 4
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