Nguyen v. City of Vancouver

7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE HAI NGUYEN, No. 3:22-cv-5077-JHC 10 Plaintiff, ORDER DENYING DEFENDANT CITY 11 vs. OF VANCOUVER’S MOTION FOR SUMMARY JUDGMENT CITY OF VANCOUVER, VANCOUVER POLICE DEPARTMENT, and JOHN DOE, Vancouver Police Officer, 14 Defendants.

16 I.

INTRODUCTION 19 THIS MATTER comes before the Court on Defendant City of Vancouver’s Motion for Summary Judgment (“Motion”). The Court has considered the pleadings filed in support of and in opposition to the Motion and the file herein. Being fully advised, the Court DENIES the Motion.

ORDER DENYING DEFENDANT CITY OF 1 II.

BACKGROUND 4 Plaintiff filed this lawsuit on February 4, 2022, asserting a cause of action under 42 5 U.S.C. § 1983 against (1) the Vancouver Police Department (“VPD”), (2) the City of Vancouver (“City”), and (3) a “John Doe.” Dkt. #1.1 On February 11, 2022, a process server delivered a copy of the summons and complaint to Logan Cannon, a records supervisor at the Vancouver Police Department’s West Precinct. Dkt. #4. On February 22, 2022, a process server delivered a copy of the summo ns and complaint to Brent Waddle, who at the time was the City of Vancouver’s Interim Risk Manager. Dkt. #6. The parties do not dispute that neither Cannon nor Waddle have ever been designees of the City of Vancouver’s mayor or city manager, meaning neither have ever been authorized to accept service of process on behalf of the City of Vancouver. See RCW 4.28.080(2) (Municipalities in Washington may be served only by delivery of the summons and complaint “to the mayor, city manager, or, during normal office hours, to the mayor’s or city manager’s designated agent or the city clerk thereof.”).

16 On April 15, 2022, the City filed an answer in which it did not assert the affirmative defense of insufficient service of process. Dkt. # 9. On May 5, 2022, exactly 90 days after Plaintiff filed his complaint, the City filed an amended answer under Federal Rule of Civil Procedure (“FRCP”) 15(a)(1)(A), asserting the defense for the first time. Dkt. # 11.

20 The City now moves for summary judgment, arguing that Plaintiff did not commence the action within the limitations period due to his failure to effectuate proper service of process.

22 Dkt. # 13.

25 1 The Court dismissed the Vancouver Police Department from this action on May 16, 2022, because it is not a legal entity that can be sued. Dkt. # 18.

ORDER DENYING DEFENDANT CITY OF 1 III.

ANALYSIS 4 “Section 1983 does not contain its own statute of limitations.” Butler v. Nat’l Cmty.

Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). “Without a federal limitations period, the federal courts apply the forum state’s statute of limitations for personal injury actions, along with the forum state’s law regarding tolling, including equitable tolling, except to the extent any of these laws is inconsistent with federal law.” Id. “But, in borrowing a state statute of limitations for a federal cau se of action,” federal courts are “to ‘borrow no more than necessary.’” Id. (quoting West v. Conrail, 481 U.S. 35, 39 (1987)). Because Washington is the forum state, the Court applies Washington’s three-year limitations period for personal injury torts under RCW 4.16.080(2). See Lien Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006) (explaining that the forum will apply its own state’s statute of limitations barring exceptional circumstances and constitutional restrictions); see also Restatement (Second) of Conflicts of Law § 6; § 142 (1988).

16 Under federal law, a claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Lukovsky v. City and Cnty. of San Francisco, 535 18 F.3d 1044, 1048 (9th Cir. 2008). Plaintiff alleges his injuries occurred on February 5, 2019.

19 Dkt # 1. His cause of action thus began to accrue as of that date, triggering the three-year statute of limitations, which ran until February 5, 2022. The City argues that because Plaintiff failed to effectuate proper service within 90 days of filing his complaint on February 4, 2022, he did not commence his lawsuit. Dkt. # 13 at 5. It cites RCW 4.16.170, which states in pertinent part, “the plaintiff shall cause one or more of the defendants to be served … within ninety days from the date of filing the complaint…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 ORDER DENYING DEFENDANT CITY OF limitations.” Id. The City further argues that Plaintiff’s action is now time barred because more than three years have passed since his cause of action accrued and an action was never commenced. Id. at 7–10.2 Contrary to the City’s arguments, the service requirements of FRCP 4(m), instead of RCW 4.16.170, apply here. The Ninth Circuit has held that “a federal court borrowing a state’s time period for filing suit brought under federal law should not also borrow the state’s time limits for serving the complaint.” S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006); see also Dumarce v. Christensen, No. CV-05-419-FVS, 2007 WL 2572315, at *2 (E.D. Wash. Sept. 5, 2007) (“RCW 4.16.170 does not apply to a § 1983 claim commenced in federal court…[a]lthough the statute of limitations is borrowed from state law, service of process is governed by the Federal Rules of Civil Procedure.”).

The City cites Whidbee v. Pierce Cnty., 857 F.3d 1019, 1023 (9th Cir. 2017), in support of its argument that RCW 4.16.170 should apply instead of Fed. R. Civ. P. 4(m). Dkt. # 13 at 6. But in Whidbee, the plaintiff first brought his action in state court, and the defendants removed the action to federal court after the state statute of limitations had expired. The Ninth Circuit held that removal to federal court did not extend or revive the expired three-year limitations period. Id. This case is distinguishable from Whidbee because Plaintiff filed his action in federal court in the first instance. It thus more resembles S.J. and Dumarce.

2 The law does not support Plaintiff’s arguments that his attempts to serve the nonlegal entity of the Vancouver Police Department somehow tolled the limitations period under RCW 4.16.170. Cf. Sidis v. Brodie/Dohrmann, Inc., 117 Wash. 2d 325, 329–30, 815 P.2d 781 (1991) (“A plaintiff who fails to serve each defendant risks losing the right to proceed against unserved defendants if the served defendant is dismissed”). Nor does it support Plaintiff’s argument that the City somehow waived its defense of insufficient service. Plaintiff may be correct that the City strategically omitted its affirmative defense of insufficiency of process from its original answer, only to include it in its amended answer upon expiration of the 90 days. But as far as the Court can tell, no law clearly supports the proposition that such conduct amounts to waiver of the defense.

ORDER DENYING DEFENDANT CITY OF District courts have broad discretion to extend time for service under Rule 44m). In Henderson vy. United States, 517 U.S. 654, 61 (1996), the Supreme Court observed that Rule ° 4’s time period for service “operates not as an outer limit subject to reduction, but as an irreducible allowance.” See also Mann vy. American Airlines, 324 F.3d 1088, 1090 (9th Cir. ° 2003) (“Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint”). In making extension decisions under Rule 4(m), a district court may consider factors such as the statute of limitations bar, prejudice to the defendant, actual notice of the lawsuit, and eventual service. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007).

10 Here, the Court finds good cause under Rule 4(m) for Plaintiff's failure to serve the City with process within 90 days of the filing of this lawsuit. Factors supporting this finding include: (1) the City’s omission of the affirmative defense of insufficiency of process in its original answer; and (2) the City waiting until the expiration of the 90-day period to assert the defense. Factors supporting the extension decision include: (1) the limitations period; (2) the lack of any apparent prejudice to the City; (3) actual notice of the lawsuit by the City; and (4) Plaintiff's apparent good-faith efforts to serve the City within the 90 days.

Accordingly, the Court DENIES the Motion. Plaintiff may have until June 30 to serve the City with process.

19 DATED this 8th day of June, 2022.

21 CJok 4, Chur 7 HONORABLE JOHN H. CHUN UNITED STATES DISTRICT JUDGE ORDER DENYING DEFENDANT CITY OF VANCOUVER’S MOTION FOR SUMMARY JUDGMENT - 5