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·FlLE

  

IN CLERKS OFFICE

      

~ COURT, STATE OF WASHING"'IN

DA'i'E_DEC 1 11!JJ4

~~ lu161tt) C} .

~ CHIIiF JUSTICE

······.r\

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

JESSE POWERS, )

)

Respondent, ) No. 90133-3

)

v. )

)

W.B. MOBILE SERVICES, INC., A )

Washington Corporation, ) EnBanc

)

Petitioner, )

and )

)

PREMIER COMMUNITIES, INC., a )

Washington Corporation; PACIFIC MOBILE )

STRUCTURES, INC., a Washington )

Corporation d/b/a PACIFIC MOBILE; )

and JOHN DOE TWO, ) Filed DEC 1 1 2014

_ _ _ _ __ _ . . c _ _

)

Defendants. )

___

)

GONZALEZ, J.--Lawsuits must be initiated within the relevant statute of

limitations. Generally, plaintiffs need to timely serve only one defendant to toll the

statute of limitations on their claims. Today, we are asked whether service of process

on one defendant tolls the statute of limitations as to an unserved and unnamed

defendant that the plaintiff identified with a placeholder such as "John Doe." We find

that service of process on one defendant tolls the statute of limitations as to an              

Powers v. WB. Mobile Services, Inc.; No. 90133-3

unserved and unnamed defendant if the plaintiff identifies the unnamed defendant

with reasonable particularity. Here, plaintiff Jesse Powers identified defendant W.B.

Mobile Services Inc. with such reasonable particularity. We affirm the Court of

Appeals and remand to the superior court for further proceedings consistent with this

opmwn.

FACTS

On June 2, 2006, a handicap access ramp platform at a residential construction

site in Spanaway, Washington, collapsed when Powers used it Powers fell and was

injured when the platform collapsed.

Powers fell while working for Awning Solutions, a company hired by Premier

Communities Inc. to install an awning on a modular building. Premier also contracted

with Pacific Mobile Structures Inc. to supply the ramp that collapsed. Unknown to

Powers, Awning Solutions, or Premier, Pacific had subcontracted with W.B. Mobile

to install the ramp that collapsed. After falling, Powers "tried to find out exactly who

put the ramp the together," including making inquiries to Awning Solutions, but

Awning Solutions thought that Pacific installed the ramp. Clerk's Papers (CP) at 256.

Premier's sign was displayed at the site.

On May 28, 2009, Powers filed a personal injury suit against Premier, Pacific,

and John Doe One and John Doe Two, identifying "John Doe One" as the "builder of

the handicap access ramp where the incident occurred." Id. at 186. The statute of

limitations for Powers's suit expired on June 2, 2009. RCW 4.16.080. Powers timely

2   Powers

 v.           

WE. Mobile Services, Inc.: No. 90133-3

served Pacific on June 5, 2009, and Premier on June 12, 2009. 1 Powers, of course, did

not serve the John Does or W.B. Mobile at thattime.

In its answer to Powers's complaint, in July 2009, Pacific indicated that

Powers's injuries may have been caused "by the negligence or fault of persons or

entities presently unknown and not a party herein" and that Powers "may have failed

to join indispensable parties." CP at 331. At that time, Pacific did not disclose that

W.B. Mobile installed the ramp, but a few days later, on July 28, 2009, Pacific sent

W.B. Mobile a letter detailing Powers's complaint, including copies of Powers's

complaint and Pacific's invoices reflecting that W.B. Mobile installed the ramp. The

owner and sole employee ofW.B. Mobile confirmed that he received the letter

'"probably a few days"' after July 28, 2009. Id. at 170 (emphasis omitted).

In December 2009, Pacific submitted to the trial court a list of "possible

primary witnesses," which included "Employees of WB Mobile," with the description

that "[o]ne or more employees ofWB Mobile may be called to testify about the terms

of the contract between WB Mobile and Pacific Mobile as well as about who installed

the ramp where the plaintiff alleges failed." Id. at 335 (capitalization omitted), 337.

Later, during a January 2010 deposition, Powers was informed that Pacific was

attempting to ascertain who installed the ramp and considering whether W.B. Mobile

installed the ramp.

1Although the statute of limitations ran on June 2, 2009, parties have 90 days to serve their

complaint after filing suit. RCW 4.16.170.

3  Powers

 v.           

WB. Mobile Services, Inc.; No. 90133-3

Finally, over a year after filing his complaint, Powers obtained a discovery

response from Pacific in October 2010 identifying W.B. Mobile as the installer of the

ramp. As noted by W.B. Mobile, Powers did not make his discovery requests or

Pacific's responses part of the record in the trial court, thus we do not know how

diligent Powers was in pursuing discovery or whether he could have discovered W.B.

Mobile earlier from Pacific's responses. Suppl. Br. ofPet'r at 13 n.4. Four months

after Pacific's discovery response, in February 2011, Powers moved to amend his

pleading to replace John Doe One with "W.B. Mobile." CP at 378.

The trial court granted W.B. Mobile's motion to dismiss for failure to bring

claims within the statute of limitations. 2

The Court of Appeals reversed, finding Powers's serving Pacific and Premier

within ninety days of filing his complaint tolled the statute of limitations on Powers's

claim against W.B. Mobile, and remanded for a trial on the merits. Powers v. W.B.

Mobile Servs., Inc., 177 Wn. App. 208, 215, 311 P.3d 58 (2013). The Court of

Appeals did not reach whether Powers's amended complaint related back to the date

of his initial complaint under CR 15(c). !d. We granted W.B. Mobile's petition for

review and now affirm. Powers v. W.B. Mobile Servs., Inc., 180 Wn.2d 1022, 328

P.Jd 902 (2014).

2Powers, Premier, and Pacific stipulated that they had reached a settlement, and the trial court

dismissed Powers's claims against both Premier and Pacific. Neither Premier nor Pacific

appealed to the Court of Appeals or this court. Powers v. WB. Mobile Servs., Inc., 177 Wn. App. 208,212 n.2, 311 P.3d 58 (2013).

4  Powers

 v.           

WB. Mobile Services, Inc.', No. '90133-3

ANALYSIS

A. Standard of review

"The standard of review of an order of smmnary judgment is de novo, and the

appellate court performs the same inquiry as the trial court." Jones v. Allstate Ins.

Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002) (citing Lybbert v. Grant County, 141 Wn.2d 29 34, 1 P.3d 1124 (2000)). The court considers facts and inferences in a light

3

most favorable to the nomnoving parties, here Powers. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82 (2005) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437,

656 P.2d 1030 (1982)).

B. Reasonable particularity

Under RCW 4.16.170, service of process on one defendant tolls the statute of

limitations as to unserved defendants. Sidis v. Brodie/Dohrmann, Inc., 1J 7 Wn.2d 325, 329, 815 P.2d 781 (1991). In Sidis, this court observed "that in some cases, if

identified with reasonable particularity, 'John Doe' defendants may be appropriately

'named' for purposes of RCW 4.16.170." !d. at 331. This case gives us an

opportunity to explore our observation in Sidis, and we find it sound and authoritative

in the case at bar.

While we have not had occasion to discuss our observation in Sidis previously,

our Courts of Appeals have, and we build on the holdings of the Courts of Appeals.

See, e.g. Bresina v. Ace Paving Co., 89 Wn. App. 277,282,948 P.2d 870 (1997). In

3

5   Powers

'

 v.     .      

WB. Mobile Services, Inc.', No. ·90133-3

order for a plaintiff to show that an um1amed defendant is identified with reasonable

particularity, the plaintiff must establish ( 1) (a) from the commencement of the

statute of limitations, the plaintiff made a diligent effort to identify the actual

defendant given the information reasonably available to the plaintiff and (b) the

plaintiff provided information about the unnamed defendant in the complaint to the

greatest extent possible, including describing the unnamed defendant's acts and

appearance and (2) the defendant had or should have received such notice of the

action that it will not be prejudiced in maintaining a defense on the merits at the time

when the placeholder for the defendant, such as "John Doe" or "ABC Corporation," is

replaced with the defendant's actual name. The first prong of the reasonable

particularity standard is satisfied only when the plaintiff shows that it made a

reasonable effort to identify an unnamed defendant and that actua]ly naming the

defendant was unreasonably difficult given the information available.

If a plaintiff is able to show that the plaintiff identified an unnamed defendant

with reasonable particularity and tolled the statute of limitations by timely serving at

least one named defendant, the statute of limitations will be tolled as to claims against

such unnamed defendant. In that case, the plaintiff may amend its pleading under CR

- 10(a)(2) to substitute the actual name of the defendant in place of the placeholder for

such defendant, such as "John Doe" or "ABC Corporation," even after the expiration

6   .      

.      

Powers v. W.B. Mobile Services, Inc.; No. ·90133-3

of the statute of limitations, without needing to show that such amendment relates

back to the date of the plaintiffs .original pleading under CR 15(c). 3

We find that Powers identified W.B. ]\1obil~ with reasonable particularity and,

therefore, tolled the statute of limitations by serving Pacific on June 5, 2009, and

properly substituted W.B; Mobile's name for "John Doe One ... builder of the

handicap access ramp where the incident occurred" in February 2011. 4

Viewing facts and inferences in a light most favorable to Powers, as we must,

we find that Powers satisfied the first prong of the reasonable particularity standard.

Powers made a diligent effort to identify and name W.B. Mobile from the

commencement of the statute of limitations given the information reasonably

available because from when Powers fell, Powers "tried to find out exactly who put

3

We recognize that our holding today is contrary to Kiehn v. Nelsen's Tire Co., 45 Wn. App. 291, 294-96, 724 P.2d 434 (1986). Kiehn was decided before Sidis and found that a plaintiff

must satisfy CR 15(c) to amend a pleading to replace a placeholder for an unnamed defendant

with the defendant's actual name after the expiration of the statute of limitations. I d. Following

Sidis, as we hold today, if a plaintiff satisfies the reasonable particularity standard and timely

served at least one named·defendant, the statute of limitations has been tolled as to the unnamed

defendant and the plaintiff may amend its pleading to replace a placeholder for the unnamed

defendant with the defendant's actual name without consideration of CR 15(c). Given that CR

15(c)(2) requires that the defendant "knew or should have known that, but for a mistake

concerning the identity of the proper party, the action would have been brought against him"

(emphasis added) and in cases such as this one the plaintiff was "ignorant of the name of the

defendant" under CR 10( a)(2) (emphasis added), not mistaken, CR 15(c) does not apply to a

plaintiff's amending a pleading to replace a placeholder for an mmamed defendant with the

defendant's actual name after the expiration of the statute of limitations. Whether the plaintiff

has satisfied the reasonable particularity standard is the exclusive inquiry in such cases.

4

Powers also argues that he may amend his pleading to name W.B. Mobile in place of John Doe

One under CR 15(c) and asks us to abandon the "inexcusable neglect" prong of the CR 15(c)

analysis. W.B. Mobile filed a motion to strike a portion of Powers's brief devoted to that

argument. Given our holding today, we deny the motion as moot.

7              

Powers v. WB. Mobile Services, Inc.; No. 90133-3

the ramp the together" and Powers filed a complaint and initiated discovery to

ascertain more information about the installer of the ramp. CP at 256; RCW 4.16.080.

Powers provided information about W.B. Mobile in his complaint to the greatest

extent possible by describing W.B. Mobile as "John Doe One ... builder of the

handicap access ramp where the incident occurred." CP at 186. Powers's actually

naming W.B. Mobile in his complaint was unreasonably difficult given the

information available because Powers's attempts to ascertain the identity ofW.B.

Mobile were stymied by inaccurate information from his employer and the lack of an

available record showing who installed the ramp. Given the record available and

viewing facts and inferences in a light most favorable to Powers, Powers satisfied the

first prong of the reasonable particularity standard, but this is a close call, and such

finding is the outer extreme of what may satisfY the first prong of the reasonable

particularity standard.

W.B. Mobile received sufficient notice to ensure that it is not prejudiced in

maintaining its defense on the merits, satisfying the second prong of the reasonable

particularity standard. The owner and sole employee ofW.B. Mobile received a copy

of Powers's complaint andPacific's invoices reflecting that W.B. Mobile installed the

ramp at issue a few days after July 28, 2009, well within the ninety days required for

service after Powers filed his complaint on May 28, 2009. See RCW 4.16.170. W.B.

Mobile received actual notice of Powers's claim in a timely manner, which satisfies

the second prong of the reasonable particularity standard.

8   .  .

          

Powers v. W.B. Mobile Services, Inc.; No.'90133~3

CONCLUSION

We affirm the Court of Appeals and find that Powers identified W.B. Mobile

with reasonable particularity. We remand to the superior court for further proceedings

consistent with this opinion.

9   .      

.      

Powers v. WB. Mobile Services, Ino.,'No. 90133--3

WE CONCUR:

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