Gazarov v. State of Washington et al

Filing 29

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)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ERIK GAZAROV, Plaintiff, 11 12 13 14 CASE NO. C17-1472 MJP ORDER ON MOTION FOR SUMMARY JUDGMENT v. STATE OF WASHINGTON, et al., Defendants. 15 16 The above-entitled Court, having received and reviewed: 17 1. Defendants’ Motion for Summary Judgment (Dkt. No. 11); 18 2. Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (Dkt. No. 17); 19 3. Defendants’ Reply in Support of Motion for Summary Judgment (Dkt. No. 23); 20 all attached declarations and exhibits; and relevant portions of the record, rules as follows: 21 22 IT IS ORDERED that Plaintiff’s case is DISMISSED without prejudice for failure to timely and properly serve the defendants. 23 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 1 1 Background 2 As this matter is being dismissed on procedural grounds, the substantive allegations of 3 the complaint are not at issue here. Plaintiff initiated a lawsuit against the State of Washington 4 and against a Washington State Patrol Trooper named Cody Walter. The matter was removed 5 from state court. 6 Defendants allege (and Plaintiff does not controvert) that service was attempted in the 7 following fashion: Individual service was attempted on Cody Walter, with the process server 8 filing a declaration that, on August 29, 2017, he “provid[ed] service to C. Klein, who confirmed 9 to me that he was a WSP [Washington State Patrol] agent authorized to accept service on behalf 10 of the Defendant named herein, and who did willingly accept service in this matter.” (Dkt. No. 11 2-5.) 12 Service on the WSP was attempted, according to the process server’s declaration, through 13 the Washington State Attorney General’s Office. The document indicates that the process server 14 “provid[ed] service to a staff person therein, who confirmed to me that he was authorized to 15 accept service thereof, and who did willingly accept service in this matter.” (Id.) 16 Discussion 17 Neither service attempt is in accordance with the Federal Rules of Civil Procedure. 18 Individual defendants must be served pursuant to FRCP 4(e), which requires service (1) in 19 accordance with state law, (2) by delivering a copy of the summons and complaint personally to 20 the individual, (3) by leaving a copy at the individual’s residence, or (4) by serving an authorized 21 agent. FRCP 4(e)(1) – (2). Plaintiff’s process server declares that an agent of WSP was 22 authorized to accept service for Walter, but Walter filed a declaration indicating that (as of July 23 2016) he was no longer employed by WSP and no longer in this jurisdiction in August of 2017. 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 2 1 (Dkt. No. 12, Decl. of Walter at ¶ 2.) The WSP was thus not authorized to accept service on his 2 behalf, and service has not properly been effected on him. 3 FRCP 4(j)(2) requires that a state agency be served by either service on the agency’s 4 chief executive officer or in accordance with state law. FRCP 4(j)(2)(A) – (B). The Washington 5 state statute regarding service on a state agency clearly requires service upon the Attorney 6 General or “by leaving the summons and complaint in the office of the attorney general with an 7 assistant attorney general.” RCW 4.92.020 (emphasis supplied). Plaintiff’s declaration of 8 service only indicates that “a staff person” in the AG’s office accepted service. The law is 9 Washington is clear: service on a “staff person” (even one claiming authority to accept service) 10 is insufficient, and the statute is strictly construed. Landreville v. Shoreline Comm’y College 11 Distr. No. 7, 53 Wn.App. 330, 332 (1988). The State of Washington has not been properly 12 served. 13 Where defendants have not been properly served, the court lacks jurisdiction over them. 14 S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). In the face of a challenge to service, the 15 burden is on the plaintiff to establish valid service under FRCP 4. Brockmeyer v. May, 383 F.3d 16 798, 801 (9th Cir. 2004). 17 Conclusion 18 Defendants raised the issue of improper service in their moving papers. Plaintiff made no 19 response to Defendants’ arguments concerning the validity of service and has entirely neglected 20 to carry his burden of proof in this regard. Without proper service, this Court has no jurisdiction 21 to proceed, and accordingly DISMISSES Plaintiff’s claims without prejudice to re-assert them 22 and cure the procedural defects noted above. 23 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 3 1 2 The clerk is ordered to provide copies of this order to all counsel. 3 Dated: February 14, 2018. 5 A 6 Marsha J. Pechman United States District Judge 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ON MOTION FOR SUMMARY JUDGMENT - 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?