FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLIFTON WHIDBEE, individually,

Plaintiff-Appellant,

v.

PIERCE COUNTY, a Washington

State Municipal Corporation;

EUGENE ALLEN, in his individual

capacity,

Defendants-Appellees.

No. 14-36094

D.C. No.

2:14-cv-00683-RBL

OPINION

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted March 7, 2017

Seattle, Washington

Filed May 26, 2017

Before: Susan P. Graber, Sandra S. Ikuta,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Ikuta
2 WHIDBEE V. PIERCE COUNTY

SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal on statute

of limitations grounds of a suit brought under 42 U.S.C.

§ 1983 and state law.

The panel held that although 28 U.S.C. § 1448 and

Fed. R. Civ. P. 4(m) give plaintiffs additional time to effect

service of process, these rules do not extend or revive a state

statute of limitations that expired before removal. The panel

held that the period of time during which plaintiff could

commence his claims expired under a state statute of

limitations before defendants removed the action to federal

court, and the federal rules allowing additional time to effect

service of process on defendants following removal did not

extend or revive a state statute of limitations. Accordingly,

the district court properly dismissed plaintiff’s claims on the

ground that they were time barred before his case was

removed.

COUNSEL

Loren A. Cochran (argued) and Darrell L. Cochran, Pfau

Cochran Vertetis Amala PLLC, Tacoma, Washington, for

Plaintiff-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
WHIDBEE V. PIERCE COUNTY 3

Alicia M. Burton (argued), Deputy Prosecuting Attorney;

Mark Lindquist, Prosecuting Attorney; Prosecuting

Attorney’s Office, Tacoma, Washington; for DefendantsAppellees.

OPINION

IKUTA, Circuit Judge:

Clifton Whidbee challenges the district court’s dismissal

of his federal civil rights and state negligence claims against

defendants Pierce County and Pierce CountySheriff’s Deputy

Eugene Allen. We affirm. The period of time during which

Whidbee could commence these claims expired under a state

statute of limitations before defendants removed the action to

federal court, and the federal rules allowing additional time

to effect service of process on defendants following removal

do not extend or revive a state statute of limitations.

I

Under Washington law, an action for “injury to the person

or rights of another” (with some exceptions not relevant here)

“shall be commenced within three years.” Wash. Rev. Code

§ 4.16.080(2). “For the purpose of tolling any statute of

limitations an action shall be deemed commenced when the

complaint is filed. . . .” Id. § 4.16.170.1 A plaintiff then has

1 Section 4.16.170 of the Revised Code of Washington is titled

“Tolling of statute—Actions, when deemed commenced or not

commenced” and states in full:
4 WHIDBEE V. PIERCE COUNTY

90 days within which to serve process on at least one

defendant. Id. 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 limitations.” Id. Reading

these statutes together, a personal injury action “shall be

deemed commenced” for purposes of tolling the statute of

limitations if the plaintiff files the complaint within three

years from the date of injury and if the plaintiff serves at least

one of the defendants no later than 90 days after filing the

complaint. If the plaintiff fails to do so, the action may be

time barred. Id.; see also Gross v. Sunding, 139 Wash. App.

54, 60 (2007).

A plaintiff suing a county must serve the county auditor,

Wash. Rev. Code § 4.28.080(1), and a plaintiff suing an

individual generallymust serve “the defendant personally” or

“leav[e] a copy of the summons at the house of his or her

usual abode with some person of suitable age and discretion

then resident therein,” id. § 4.28.080(16). Washington courts

For the purpose of tolling any statute of limitations an

action shall be deemed commenced when the complaint

is filed or summonsis served whichever occurs first. If

service has not been had on the defendant prior to the

filing of the complaint, the plaintiff shall cause one or

more of the defendants to be served personally, or

commence service by publication within ninety days

from the date of filing the complaint. If the action is

commenced by service on one or more of the

defendants or by publication, the plaintiff shall file the

summons and complaint within ninety days from the

date of service. If following service, the complaint is

not so filed, or following filing, service is not so made,

the action shall be deemed to not have been

commenced for purposes of tolling the statute of

limitations.
WHIDBEE V. PIERCE COUNTY 5

require strict compliance with the state’s service of process

requirements. See Haberman v. Wash. Pub. Power Supply

Sys., 109 Wash. 2d 107, 177 (1987) (as amended) (“[M]ere

receipt of process and actual notice alone do not establish

valid service of process.”); Gross, 139 Wash. App. at 60

(holding that action was time barred despite defendant’s

knowledge of plaintiff’s attempts to serve process). In the

case of a county defendant, “[s]ervice on anyone other than

the Auditor is insufficient.” Nitardy v. Snohomish County,

105 Wash. 2d 133, 135 (1986).

If the plaintiff fails to serve process no later than 90 days

after the complaint is filed, and the time for commencing an

action expires under Washington’s statute of limitations laws,

the defendant may raise the affirmative defenses that service

of process was insufficient and that the suit is time barred. 

See, e.g., Jones v. Stebbins, 122 Wash. 2d 471, 480 (1993);

Boyle v. Clark, 47 Wash. 2d 418, 423–24 (1955). But those

defenses may be waived if a defendant fails to raise them. 

See Jones, 122 Wash. 2d at 480; Boyle, 47 Wash. 2d at

423–24.

II

We now turn to the facts of this case. On November 19,

2010, the Pierce County Sheriff’s Department executed a

search warrant on Whidbee’s home. In connection with

executing the warrant, Deputy Allen threw a flash-bang

grenade into the house, which burned Whidbee’s right arm

and lower abdomen. Whidbee was arrested and detained at

the Pierce County Jail until November 24, 2010.

On October 10, 2013, Whidbee filed a complaint in

Washington state court against Pierce County and Allen,
6 WHIDBEE V. PIERCE COUNTY

alleging claims under 42 U.S.C. § 1983 and state law. “The

applicable statute of limitations for actions brought pursuant

to 42 U.S.C. § 1983 is the forum state’s statute of limitations

for personal injury actions.” Carpinteria Valley Farms, Ltd.

v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir.

2003). Therefore, Washington’s three-year personal injury

statute of limitations applied to all of Whidbee’s claims. 

Under Washington law, the time within which to bring an

action is tolled while a person is in custody. See Wash. Rev.

Code § 4.16.190. Therefore, the parties agree that Whidbee

had until November 24, 2013 to commence his § 1983 and

state-law personal injury claims and that his complaint was

timely. See id. §§ 4.16.080, 4.16.170.

After timely filing his complaint, Whidbee had 90 days,

until January 8, 2014, to serve Pierce County or Allen with

process. See id. § 4.16.170. Whidbee failed to do so. 

Whidbee’s process server, ABC Legal Services, Inc., served

the Pierce County Risk Management Office with a copy of

Whidbee’s state court summons and complaint, but failed to

serve the summons on the Pierce County Auditor, as required

by state law. See id. § 4.28.080(1). ABC Legal Services also

failed to serve Allen. See id. § 4.28.080(16). Indeed, ABC

Legal Services did not serve Allen until April 2014 and did

not serve the Pierce County Auditor until August 2014. As

a result, the time for commencing an action against the

County and Allen expired on January 8, 2014. See id.

§§ 4.16.170, 4.16.080.

In May 2014, Allen and Pierce County removed the case

to federal court and moved to dismiss, arguing, among other

things, that Whidbee failed to commence the action within the

statute of limitations period prior to removal. The district

court granted the motion.
WHIDBEE V. PIERCE COUNTY 7

On appeal, Whidbee raises two arguments. First, he

argues that once his case was removed to federal court, he

had an additional 120 days to serve process on the defendants

under 28 U.S.C. § 1448 and Rule 4(m) of the Federal Rules

of Civil Procedure. Because he served process on Allen and

Pierce County within the additional 120 days, Whidbee

contends, his action commenced before the time for bringing

his action had expired. Second, Whidbee argues that, because

he substantially complied with the federal requirements for

service of process when he served the Pierce County Risk

Management Office with a copy of his state court summons,

he should be deemed to have served Pierce County within

90 days after filing his complaint.

III

Our analysis of Whidbee’s arguments requires

consideration of how federal courts address service of process

and statute of limitations defenses in state cases that have

been removed to federal court. We review de novo whether

a case should be dismissed on statute of limitations grounds. 

Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003).

When a case is removed from state court to federal court,

the question whether service of process was sufficient prior

to removal is governed by state law. See Lee v. City of

Beaumont, 12 F.3d 933, 936–37 (9th Cir. 1993), overruled on

other grounds by Cal. Dep’t of Water Res. v. Powerex Corp.,

533 F.3d 1087 (9th Cir. 2008). However, in “all cases

removed from any State court to any district court of the

United States,” a plaintiff may serve process upon removal if

service of process was defective or was not attempted before
8 WHIDBEE V. PIERCE COUNTY

removal. 28 U.S.C. § 1448 (emphasis added).2 By allowing

plaintiffs to serve process on defendants after removal, this

statute ensures that all defendants are apprised “of the

pendency of the action” in federal court and are afforded “an

opportunity to present their objections,” so as to meet the

requirements of due process. Mullane v. Cent. Hanover Bank

& Tr. Co., 339 U.S. 306, 314 (1950).

The Federal Rules of Civil Procedure govern service of

process in federal court, see Fed. R. Civ. P. 4, and apply to a

civil action after removal, see Fed. R. Civ. P. 81(c)(1). “Rule

4 is a flexible rule that should be liberally construed so long

as a party receives sufficient notice of the complaint.” Direct

Mail Specialists, Inc. v. Eclat Computerized Techs., Inc.,

840 F.2d 685, 688 (9th Cir. 1988) (quoting United Food &

Commercial Workers Union v. Alpha Beta Co., 736 F.2d

1371, 1382 (9th Cir. 1984)). Thus, unlike Washington law,

federal law does not require strict compliance with service

requirements.

At the time Whidbee’s case was removed to federal court,

Rule 4(m) provided:

2

 28 U.S.C. § 1448 states in full:

n all cases removed from any State court to any district

court of the United States in which any one or more of

the defendants has not been served with process or in

which the service has not been perfected prior to

removal, or in which process served proves to be

defective, such process or service may be completed or

new process issued in the same manner as in cases

originally filed in such district court.
WHIDBEE V. PIERCE COUNTY 9

If a defendant is not served within 120 days

after the complaint is filed, the court—on

motion or on its own after notice to the

plaintiff—must dismiss the action without

prejudice against that defendant or order that

service be made within a specified time. But

if the plaintiff shows good cause for the

failure, the court must extend the time for

service for an appropriate period.

Fed. R. Civ. P. 4(m) (2014).3 Therefore, once a case is

removed to federal court, a plaintiff has a specified number

of days to effect service of process on all defendants,

regardless whether the plaintiff failed to serve process in state

court before the deadline for commencing an action had

passed.

Although § 1448 and Rule 4(m) give plaintiffs additional

time to effect service of process, these rules do not extend or

revive a state statute of limitations that expired before

removal. If the period of time for bringing an action expired

under state law before the action was removed to federal

court, a defendant can raise the state statute of limitations as

an affirmative defense in federal court. See Fed. R. Civ. P.

8(c), 81(c). Moreover, “[t]he length of the limitations period,

and closely related questions of tolling and application, are to

be governed by state law.” Silva v. Crain, 169 F.3d 608, 610

(9th Cir. 1999) (quoting Wilson v. Garcia, 471 U.S. 261, 269

(1985)). Because it must give effect to the state’s statute of

limitations, a federal court has no authority to extend the

3 Effective December 1, 2015, Rule 4(m) was amended to require

service of process within 90 days, rather than 120 days, of the filing of the

complaint.
10 WHIDBEE V. PIERCE COUNTY

state-defined period in which a plaintiff can bring an action,

even though the court must extend the time in which a

plaintiff can serve process on defendants under § 1448.

The Third and Eighth Circuits have likewise concluded

that a federal court does not have the authority to give a

plaintiff additional time to bring an action that expired under

state law prior to removal. See Witherow v. Firestone Tire &

Rubber Co., 530 F.2d 160, 166–68 (3d Cir. 1976); Marshall

v. Warwick, 155 F.3d 1027, 1033 (8th Cir. 1998). While we

agree with the conclusion in these cases, we do not agree with

their reasoning. In Witherow, the plaintiff failed to serve the

defendant properly under Pennsylvania law within the statute

of limitations period before the defendant removed the action

to federal court. 530 F.2d at 168. The Third Circuit affirmed

the dismissal of the action, holding that the plaintiff was not

entitled to serve process on the defendant after removal. In

reaching this conclusion, the Third Circuit referenced, but did

not interpret, the language of § 1448, and instead reasoned

that “[t]o apply [§ 1448] to the circumstances of this case

would constitute that statute a pro tanto abrogation of

Pennsylvania’s statute of limitations.” Id. at 167. Similarly,

in Marshall, the plaintiff failed to serve the defendant under

South Dakota law within the statute of limitations period

before removal to federal court. 155 F.3d at 1033. The

Eighth Circuit followed Witherow and affirmed the district

court’s dismissal based on insufficient service of process. Id.

The conclusion in Witherow and Marshall—that a

plaintiff cannot serve process in federal court if process was

untimely in state court for purposes of a state statute of

limitations—is contrary to the plain language of § 1448,

which allows for service of process in “all cases removed

from any State court to any district court of the United
WHIDBEE V. PIERCE COUNTY 11

States.” (Emphasis added). Moreover, it conflates service of

process with the statute of limitations, which serve quite

different functions: service of process provides defendants

with sufficient notice “to apprise interested parties of the

pendency of the action and afford them an opportunity to

present their objections,” Mullane, 339 U.S. at 314, while

statutes of limitations “prevent[]surprises through the revival

of claims that have been allowed to slumber until evidence

has been lost, memories have faded, and witnesses have

disappeared,” Gabelli v. SEC, 133 S. Ct. 1216, 1221 (2013)

(quoting R.R. Telegraphers v. Ry. Express Agency, Inc.,

321 U.S. 342, 348–49 (1944)). There is no basis in federal

law for holding that the expiration of a state statute of

limitations bars a plaintiff from notifying all defendants that

they are subject to suit; even if a claim has expired under a

state statute of limitations, a defendant can still waive this

affirmative defense. Therefore, we agree with Witherow and

Marshall only to the extent they hold that removal to federal

court cannot extend or revive a state statute of limitations that

expired prior to removal.

IV

We now turn to Whidbee’s arguments. First, Whidbee

claims that he commenced his action within the time required

under Washington law because he served process on Allen

and Pierce County within the additional 120 days provided by

§ 1448. We reject this argument because, as in Witherow and

Marshall, it conflates federal service of process with the state

statute of limitations. Although § 1448 and Rule 4(m)

allowed Whidbee to serve process on Allen and Pierce

County after removal, these laws do not change the period of

time for commencing an action under the state statute of

limitations. Because that time for commencing the action
12 WHIDBEE V. PIERCE COUNTY

expired before the case was removed to federal court, the

defendants were entitled to raise the state statute of

limitations as an affirmative defense. Whidbee did not assert

any other ground for tolling the statute of limitations to the

district court, and therefore waived any such arguments.

We also reject Whidbee’s argument that his service on the

Pierce County Risk Management Office prior to removal

should be construed as sufficient service on Pierce County

under the more flexible federal service of process

requirements. The sufficiency of Whidbee’s pre-removal

service of process is governed by Washington law, not by

Rule 4 of the Federal Rules of Civil Procedure. See Lee,

12 F.3d at 936–37. Whidbee does not (and cannot) argue that

his pre-removal service of process complied with Washington

law. Accordingly, the district court properly dismissed

Whidbee’s claims on the ground that they were time barred

before his case was removed.4

AFFIRMED.

4 The district court also dismissed the action on the ground that

Whidbee could not perfect service of process under 28 U.S.C. § 1448 after

removal, relying on Witherow and Marshall. Although this reasoning was

incorrect, we may affirm the district court on any basis supported by the

record. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987).