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IN CLERKS OFFICE**~** COURT, STATE OF WASHING"'IN 

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.**~** CHIIiFJUSTICE IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JESSE POWERS, Respondent,

v. W.B. MOBILE SERVICES, INC., A Washington Corporation, Petitioner, and PREMIER COMMUNITIES, INC., a ) ) ) ) ) ) ) ) ) ) ) ) ) Washington Corporation; PACIFIC MOBILE ) STRUCTURES, INC., a Washington ) Corporation d/b/aPACIFIC MOBILE; ) and JOHNDOE TWO, ) ) Defendants. )



# ___ ) No. 90133-3

EnBanc

Filed 

### DEC 1 12014

_____ __..c__

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 oflimitations on their claims. Today, we are asked whether service ofprocess
on one defendant tolls the statute oflimitations as to an unserved and unnamed defendantthat the plaintiffidentified with a placeholder such as "JohnDoe." We find that service ofprocess on one defendant tolls the statute oflimitations as to an ······.r\Powers v. WB. Mobile Services, Inc.; No. 90133-3 unserved and unnamed defendant ifthe plain tiffidentifies the unnamed defendant with reasonable particularity. Here, plaintiffJesse 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 byPremier 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 withW.B. Mobile to install the ramp that collapsed. After falling, Powers "triedto find out exactly who putthe 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 "JohnDoe 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

2Powers v. WE. Mobile Services, Inc.: No. 90133-3 served Pacific on June 5, 2009, and Premier on June 12, 2009. 1 Powers, ofcourse, did not serve the John Does or W.B. Mobile at thattime. Inits answer to Powers's complaint, in July 2009, Pacific indicated that Powers's injuries may have been caused "bythe negligence or fault ofpersons or entities presently unknown and not a partyherein" and that Powers "mayhave failed tojoin 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 ofPowers'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). InDecember 2009, Pacific submitted to the trial court a list of"possible primary witnesses," which included "Employees ofWB Mobile," with the description that "[o]ne or more employees ofWB Mobile may be called to testify about the terms ofthe contract between WB Mobile and Pacific Mobile as well as about who installed the ramp where the plaintiffalleges 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 oflimitations ran on June 2, 2009, parties have 90 days to serve their complaint after filing suit. RCW 4.16.170. 3Powers 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 ofthe ramp. As noted by W.B. Mobile, Powers did not make his discovery requests or Pacific's responses part ofthe 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 oflimitations. 2 

### The Court ofAppeals reversed, finding Powers's serving Pacific and Premier within ninety days offiling his complaint tolled the statute oflimitations on Powers's claim against W.B. Mobile, and remanded for a trial onthe 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 backto the date ofhis initial complaintunder 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).

2 Powers, 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 ofAppeals or this court. Powers v. WB. Mobile Servs., Inc., 177 Wn. App. 208,212 n.2, 311 P.3d 58 (2013). 4Powers v. WB. Mobile Services, Inc.', No. '90133-3
ANALYSIS A. Standard of review "The standard ofreview ofan order ofsmmnaryjudgmentis de novo, and the appellate courtperforms the same inquiry as the trial court." Jones v. AllstateIns. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002) (citingLybbertv. Grant County, 141 Wn.2d 29 3 34, 1P.3d 1124 (2000)). The court considers facts and inferences in a light most favorable to the nomnoving parties, here Powers. Berrocalv. 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. Reasonableparticularity Under RCW4.16.170, service ofprocess on one defendant tolls the statute of limitations as to unserved defendants. Sidis v. Brodie/Dohrmann, Inc., 1 

### J7 Wn.2d 325, 329, 815 P.2d 781 (1991). InSidis, this court observed "thatin some cases, if identified with reasonable particularity, 'JohnDoe' defendants may be appropriately 'named' for purposes ofRCW 4.16.170." 

### !d. at 331. This case gives us an opportunity to explore our observation inSidis, and we find it sound and authoritative in the case at bar. While we have not had occasionto discuss our observation in Sidis previously,
our Courts ofAppeals have, and we build on the holdings ofthe Courts ofAppeals. See, e.g. 3 Bresina v. AcePaving Co., 89 Wn. App. 277,282,948 P.2d 870 (1997). In

5' 

### . Powers v. WB. Mobile Services, Inc.', No. ·90133-3 order for a plaintiffto show that an um1amed defendant is identified with reasonable particularity, the plaintiffmust establish (1) (a) from the commencement ofthe statute oflimitations, the plaintiffmade a diligent effort to identify the actual defendant giventhe informationreasonably available to the plaintiffand (b) the plaintiffprovided information about the unnamed defendant inthe complaint to the greatest extentpossible, including describing the unnamed defendant's acts and appearance and (2) the defendant had or should have received such notice ofthe action that it will not be prejudiced in maintaining a defense onthe merits at the time when the placeholder for the defendant, such as "JohnDoe" or "ABC Corporation," is replaced with the defendant's actual name. The first prong ofthe reasonable particularity standard is satisfied only when the plaintiffshows that 

### itmade a reasonable effortto identify an unnamed defendant and that actua]ly naming the defendant was unreasonably difficult given the information available. Ifaplaintiffis able to show that the plaintiffidentified an unnamed defendant withreasonable particularity and tolled the statute oflimitations by timely serving at least one named defendant, the statute oflimitations will be tolled as to claims against suchunnamed defendant. In that case, the plaintiffmay amend its pleading under CR

- 10(a)(2) to substitute the actual name ofthe defendant in place ofthe placeholder for such defendant, such as "JohnDoe" or "ABC Corporation," even after the expiration

6

### . . Powers v. W.B. Mobile Services, Inc.; No. ·90133-3 ofthe statute oflimitations, without needing to show that such amendment relates backto the dateofthe plaintiffs .original pleading under CR 15(c).3 We find that Powers identified W.B.**]\1obil~** with reasonableparticularity and, therefore, tolled the statute oflimitations by serving Pacific on June 5, 2009, and properly substituted W.B; Mobile's name for "John Doe One
... builder ofthe 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 ofthe reasonable particularity standard. Powers made a diligent effort to identify and name W.B. Mobile from the commencement ofthe statute oflimitations given the informationreasonably 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 ofthe statute oflimitations. Id. Following Sidis, as we hold today, ifa plaintiffsatisfies the reasonable particularity standard and timely served at least one named·defendant, the statute oflimitations has been tolled as to the unnamed defendant and the plaintiffmay amend its pleading to replace a placeholder for the unnamed defendant with the defendant's actual name without consideration ofCR 15(c). Given that CR 15(c)(2) requires that the defendant "knewor should have known that, but for a mistake concerning the identity ofthe proper party, the action would have been brought against him" (emphasis added) and in cases such as this one the plaintiffwas "ignorant ofthe name ofthe 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 ofthe statute oflimitations. 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 ofJohn Doe One under CR 15(c) and asks us to abandon the "inexcusable neglect" prong ofthe CR 15(c) analysis. W.B. Mobile filed a motion to strike a portion ofPowers's briefdevoted to that argument. Given our holding today, we deny the motion as moot. 7Powers 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 ofthe ramp. CP at 256; RCW 4.16.080. Powers provided information about W.B. Mobile in his complaintto the greatest extent possible by describing W.B. Mobile as "JohnDoe One
... builder ofthe 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 ofan 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 ofthe reasonable particularity standard, but this is a close call, and such finding is the outer extreme ofwhat may satisfY the first prong ofthe reasonable particularity standard. W.B. Mobile received sufficient notice to ensure that 

### itis not prejudiced in maintaining its defense onthe merits, satisfying the secondprong ofthe reasonable particularity standard. The owner and sole employee ofW.B. Mobile received a copy ofPowers'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 ofPowers's claim in a timely manner, which satisfies the second prong ofthe reasonable particularity standard.

8

### . 

### . Powers v. W.B. Mobile Services, Inc.;**No.'90133~3** CONCLUSION We affirm the Court ofAppeals and find that Powers identified W.B. Mobile withreasonable particularity. We remand tothe superior court for further proceedings consistent with this opinion.

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

WE CONCUR:

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