F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C L I F T O N W H I D B E E , individually
,

Plaintiff-Appellant
,

v.

P I E R C E C O U N T Y , a W ashing ton State Municipal Corporation; E U G E N E A L L E

N , in his individual capacity
, D efendants-Appellees. No. 14-36094

D.C. No. 2:14-cv-00683-RB L

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton Ronald B . L eig hton, District J udg e, Presiding

Arg ued and Submitted March 7, 2017 Seattle, W a shing ton

F iled May

26, 2017

B efore: Susan P. Graber, Sandra S. I k uta, and Andrew D. Hurwitz
, Circuit J udg es.

Opinion by J udg e I k

utaW H I D B E E V

. P I E R C E C O U N T Y 2

SUMMARY *

Civil Rights

The p anel affirmed the district court’s dismissal on statute of limitat ions g rounds of a suit broug ht under 42 U .S.C. § 1983 and state law.

The p a n el held that althoug h 2 8 U.S.C. § 1448 a nd F ed. R. Civ. P. 4( m ) give plaintiffs additional time to effect service of p rocess, these rules do not ex tend or revive a state statute of limitations that ex pired before removal. The panel held that the period of time during whic h p l aintiff could

commence his claims ex pire d u nder a state statute o f l i m i t a tions before defendants removed the action to federa l court, and the federal rules allowing additional time to effect service of process o n defendants following remo val did not

ex tend o r r evive a state statute o f limitations. A c cording ly
, the district court properly d ismissed plaintiff’s claims on the
g round that they were time barred before his case was removed.

COUNSEL

L oren A. C ochran (arg

u ed) and Darrell L

. Cochran, Pfau Cochran Vertetis A mal a P L L C, Tacoma, W a shing ton, for Plaintiff-Appellant.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.W H I D B E E V

. P I E R C E C O U N T Y 3

Alicia M

. B urton (arg

ued), Deputy Prosecuting Attorney ; M a r k L i n d q u i s t , P ro s e c u t i n g A t t o r n e y ; P r o s e c u t i n g Attorney ’s Office, Tacoma, W ashing ton; for D efendantsAppellees.

OP INION

I KUTA, Circuit J udg e:

Clifton W hidbee challeng es the d istrict court’s d ismissal of his federal civil rig hts and state neg lig ence claims ag ainst defendan t s Pierce County a

nd Pierce County Sheriff’s Deputy Eug ene Allen. W e affirm. The period of time during which W h idbee could commence these claims e x pired u nder a state statute of limitations before defendants removed the action to federal c ourt, an d t he federal rules allowing additional time
to e ffect service of process on defendants following removal do not ex tend or revive a state statu te of limitations.

I

Under W ashing ton law, an action for “injury to the person

or r ig hts of a

nother” (with some ex ceptions not relevant here) “shall be c ommenced within three y ears.” W ash. Rev. Code § 4.16.080(2). “F or the purpose o f tolling any statute o f limitations an a c tion shall be d eemed commenced when the complaint is filed.

. . .” I

d. § 4.16.170. 1 A plaintiff then has

1 Sectio n 4 .1 6 .1 7 0 o f th e Rev ised Co d e of W ash in g to n is t i t led

“ T o llin g o f s tatu te—A ctio n s, w h en d eem ed co m

m en ced o r n o t

co m m en ced ” an d states in

f u ll:W H I D B E E V

. P I E R C E C O U N T Y 4

9 0 day s within which to serve process on at least o n e defendant

. Id

. I f, “ f

ollowing filing
, service is not so made, the action shall be d e emed to n ot have been commenced for
purposes of t o l l i n g the statute of limitations.” Id. Reading these statutes tog ether, a personal injury action “shall be d e emed commenced” f

or purposes of tolling the statute of limitations if t h e p laintiff files the complaint w ithin three
y ears from the date of injury and if the plaintiff serves at least

one of the d efendants no later than 9 0 d a y s after filing the complaint. I f the p l aintiff f ails to d o so, the a ction may be time barred. Id. ; see also Gross v. Sunding
, 1 39 W ash. App. 54, 60 (2007).

A plaintiff suing a county must serve the county

auditor, W a sh. Rev. Code § 4.28

. 080(1), and a plaintiff suing an individual g enerally must serve “the defendant personally ” o r “leav[ e] a copy o f the summons at th e h o u s e of his or her usual abode with some person of suitable ag e and discretion then resident therein,” id. § 4.28.080(16). W ashing ton courts

Fo r th e p u r p o s e o f t o llin g an y statu te o f lim i tatio n s an actio n s h all b e d eem ed co m m en ced w h en th e co m

p lain t is f iled o r su m m o n s i s serv ed w

h ich ev er o ccu rs f

irst. If

serv ice h as n o t b een h ad o n th e d ef en dan t p rio r to th e fi l i n g o f th e co m

p lain t, th e plain tif

f s h all cau se o n e o r

m o re o f th e d ef

en d an t s to b e serv ed p erso n ally
, or

co m m en ce serv i ce b y p u

b licatio n w ith in n i n ety d ay s f ro m th e d ate o f f

ilin g th e co m

plain t. If th e actio n is

co m m en ced b y se r v ice o n o n e o r m o re o f th e d ef en d an ts o r b y p u

b licatio n , th e plain tif

f s h all f ile th e

su m m o n s a n d co m

plain t w ith in n in ety d ay s f ro m th e d ate o f serv ice. If f

o llo w in g serv ice, th e co m p lain t is

n o t so f i led
, o r f ollo w in g f

i lin g , serv ice is n o t so m ad e, th e actio n sh all be d eem ed to n o t h a v e been

co m m en c ed f

o r p u rp oses o f to l lin g th e statu te of lim itatio n s.W H I D B E E V

. P I E R C E C O U N T Y 5

r e q u ire strict compliance with the state’s service of proc e s s requirements. See Haberman v. W a sh. Pub. Power Supply Sys.
, 109 W ash. 2d 107, 177 (1987) (as amended) ( “ [ M ] e re receipt of process and actua l notice alone do not establish valid service o f process.”); Gross
, 139 W ash. App. at 60 ( h o lding that action was time barred despite defendant’s knowledg e o f plaintiff’s attempts to serve proc e ss). I n the

case of a county d e f

e n dant, “[ s] e r

vice on any one other than the Auditor is insufficient.” Nitardy v. Snohomish County
, 105 W a sh. 2d 133, 135 (1986).

I f the plaintiff f

ails to serve p rocess no later than 90 day s after the complaint is filed, and the time for commencing an action ex pires u nder W ashing ton’s statute of l imitations laws, the defendant may raise the affirmative defenses that service of process was i nsufficient and that the suit is time barred. See, e.g. , Jones v. Stebbins
, 122 W ash. 2d 471, 4 8 0 (1993); Boyle v. Clark , 47 W ash. 2d 418, 423–24 (1955). B ut those defenses may be waived if a d efendant f a i l s to raise them. See Jones
, 1 2 2 W ash. 2d at 480; Boyle
, 47 W ash. 2d at 423–24.

I I

W e now turn to the facts of this case. On November 19, 2010, the Pierce Count y S h e r iff’s Department ex e cuted a search warrant on W h i d b e e’s h ome. I n connection with

ex e c uting the warrant, Deputy A llen threw a f lash-bang
g renade into t h e house, which burned W hidbee’s rig ht arm and lower abdome n. W hidbee w as arrested and detained at the Pierce County

J ail until November 24, 2010.

O n O ctober 10, 2013, W hidbee filed a complaint i n W a shing ton state court ag ainst Pierce County and A llen,W H I D B E E V

. P I E R C E C O U N T Y 6

alleg ing c laims under 42 U.S.C. § 1983 and state law. “The applicable statute of limitations f or actions broug ht 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
, 3 44 F .3d 822, 828 (9th Cir. 2003). Therefore, W ashing ton’s three-y ear personal i n

j ury statute of limitations applied to a ll of W hidbee’s claims. Under W a shing ton law, the time within whic h to bring an action is tolled while a person is in custody

. See W ash. Rev. Code § 4.16.190. Therefore, the parties ag ree that W hidbee had until November 24, 2013 to c ommence his § 1 9 8 3 a nd
stat e

- l a w personal injury claims and that his complaint was timely

. See id. §§ 4.16.080, 4.16.170.

After timely filing hi s complaint, W hidbee had 9 0 day s, until J anuary 8, 2014, to serve Pierce County or Al l e n w ith
process. S

e e id. § 4.16.170. W h idbee failed to do so. W h idbee’s process server, AB C L eg al Services, I nc., served the Pierce County Risk Manag ement Office w i t h a copy o f W h idbee’s state court summons and complaint, but failed to

serve the summons on the Pierce County Auditor, a s r equired by state law. S

ee id. § 4.28.080(1). AB C L eg al Services also failed to serve Allen. See i d

. § 4

. 28.080(16). I ndeed, AB C L eg al Services did not serv e Allen u ntil April 2014 and did
not serve the Pierce County Auditor until Aug ust 2014. A s

a r esult, the time for c o mmencing an action ag a inst the County and Allen ex p i r ed on J a nu ary 8, 2014. See id

. §§ 4.16.170, 4.16.080.

I n May 2014, Allen and Pierce County removed the case to federal court and moved to dismiss, arg uing
, among other thing s, that W hidbee failed to commence the action within the
statute of limitations period prior to removal. The district court g ranted the motion.W H I D B E E V

. P I E R C E C O U N T Y 7

On appeal, W hidbee r aises two arg uments. F i r s t, he

a rg ues that o nce his case w as removed to federal c ourt, h e had an additional 120 day s to serve p r ocess on the defendants under 28 U .S.C. § 1 448 an d R u l e 4(m) of the F ederal Rules of Civil Procedure. B ecause he served process on Allen a nd Pierce County within the additional 120 day s, W hidbee contends, his action commenced before the time for bring ing his action had ex pired. Second, W h idbee arg ues that, because he substantia lly complied with the federal requirements for service of p r o c ess when he served the Pierce County Risk Manag ement Office with a copy of h is state court summons, he shou l d b e d eemed to have served Pierce County within 90 day s after filing his complaint.

I I I

Our analy sis of W h idb e e ’ s arg uments requires consideration of h ow federal courts address service of process and statute of limitations defenses in state ca s e s t h at have been removed to federal court. W e review de novo whether

a case should b e dismissed on statute o f limitations g rounds. Mann v. Am. Airlines , 324 F .3d 1088, 1090 (9th Cir. 2003).

W h en a c ase is removed f rom state court to federal court, the question w het h e r service of process was sufficient prior
to r em o v a l i s g overned by state law. See Lee v. City of Beaumont
, 1 2 F .3d 933, 936–37 (9th Cir. 1993), overruled on other grounds by Cal. D ep’t of W ater R es. v. Powerex Corp.
, 533 F .3d 1087 (9th Cir. 2008). However, in “ all cases removed from any State c ourt to a ny district c our t o f the United States,” a plaintiff may serve process upon removal if service of process was defective or was n ot attempted beforeW H I D B E E V

. P I E R C E C O U N T Y 8

removal. 28 U .S.C. § 1448 (emphasis added). 2 B y allowing plaintiffs to serve process on defendants after rem oval, this
statute ensures that all d efendants are apprise d “of the pendency of the a ction” in federal court and are afforded “an opportunity to present th e i r o b j ections,” so as to meet the requirements of due process. Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 314 (1950).

The F ederal Rules of Civil Procedure g overn service o f
process in federal court, see F ed. R. Civ. P. 4, a nd apply to a civil action after removal, see F ed. R. Civ. P. 81(c)(1). “ Rule 4 is a flex ible rule that should be liberally construed so long

as a party receives sufficient notice of the complaint.” Direct Mail Specialists, I

nc. v. Eclat Computerized T echs., Inc.
, 840 F .2d 685, 688 (9th Cir. 1 988) (quoting United Food & Commercial W

orkers Union v

. Al

p h a Beta Co.
, 736 F .2d 1371, 1382 (9th Cir. 1984)). Thus, unlike W ashing ton law, federal law does not require strict complianc e with service requirements.

At the time W hidbee’s case was removed to federal court, Rule 4(m) provided:

2 2 8 U.S.C. § 1 4 4 8 states in f u ll:

n all cases rem o v ed f

ro m an y State co u

rt to an y d istrict

co u rt o f th e Un ited States in w

h ich an y o n e o r m o re o f th e d ef en d an ts h as n ot b een s e r ve d w i th p ro cess o r in

w h i ch t h e serv i ce h as n o t b een p erf ected p rio r to

rem o v al, o r i n w

h ich p ro cess serv ed p ro v es to b e d ef ectiv e, su ch pro cess o r serv ice m ay b e co m p leted or

n ew p ro cess issu ed in th e sam e m an n er as in c a ses

o rig in ally f iled in su ch d i strict co u rt.W H I D B E E V

. P I E R C E C O U N T Y 9

I f a defendant is not served w ithin 120 day s after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must d i s miss the action without
p r e j udice ag ainst that defendant or order tha t service be made within a specified time. B ut if the plaintiff shows g ood cause f or the f ailure, the court must ex tend the time for service for an appropriate period.

F ed. R. Civ. P. 4(m) (2014). 3 Therefore, o n c e a ca s e is removed to federal cou r t , a plaintiff has a specified number of d a y s to e f f e c t s ervice of p rocess on all d e fendants,
reg ardless whether the plaintiff failed to serve process in state court b efore the deadline for commencing an a ction h ad passed.

Althoug h § 1448 a

n d Rule 4(m) g ive plaintiffs additional time to effect service of process, these rules d o not e x tend o r revive a state statute o f limitations t h a t e x pired before removal. I f the period o f time for bring ing an action ex pired under state law before the action w as removed to f e d e ra l court, a defendant can raise the state statute of limitations a s

an affirmative defe nse in federal court. See F ed. R. Civ. P. 8(c), 81(c). Moreover, “[ t] he leng th of the limitations period, and closely related questions of tolling and application, are to be g overned by state law.” Silva v. Crain
, 169 F

. 3d 608, 610 (9th Cir. 1999) (quoting W ilson v. Garcia
, 471 U.S. 2 61, 269 (1985)). B ecause it must give e ffect to the state’s statute o f limitatio n s , a federal court has n o authority to ex tend the

3 Ef f ectiv e Decem

b er 1, 2 0 1 5
, Ru le 4 (m ) w as am en d ed to r e q u i re

serv ice o f pro cess w ith in 9 0 d ay s, rath er t h an 1 2 0 d ay s, o f th e f

ilin g o f th e

co m plain t.W H I D B E E V

. P I E R C E C O U N T Y 10

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

even thoug h the court must ex tend the time in w hich a plaintiff can serve process on defendants under § 1448.

The Third and Eig hth Circuits have l i k ewise concluded that a federal court does not have the authority to g ive a plaintiff additional time to bring an a ction that ex pired under
state law prior to removal. See W itherow v. Firestone Tire & Rubber Co. , 530 F .2d 160, 166–68 (3d Cir. 1976); Marshall

v. W arwick
, 1 5 5 F .3d 1027, 1033 ( 8th Cir. 1998). W hile we ag ree with the conclusion in these c ases, we do not ag ree with their reasoning

. I n W

itherow
, the plaintiff failed to serve the defendant properly under Pennsy lvania law within the statute of limitations period before the defendant removed the action
to f ederal court. 530 F

. 2d at 168. The Third Circuit affirmed the dismissal of the action, holding that the plaintiff was not entitle d to serve process on the defendant after removal. I n reaching this conclusion, the Third Circuit referenced, but did
not interpret, the lang uag e of § 1448, and instead reasoned that “[ t] o apply [ § 1448] to the circum s t a n c e s of this case would constitute that statute a pro tanto abrog ation o f Pennsy lvania’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 b e fore r emoval to federal court. 155 F .3d at 1033. The Eig hth Circuit followed W itherow a nd affirmed the district court’s dismissal based on insufficient service of process. Id.

The c onclusion in W

it herow and Marshall— that a plaintiff cannot serve process in federal court if process was untimely in state court for p u rp oses of a state statute o f limitations—is c ontrar y t o t he plain lang uag e of § 1448, which allows for service of process in “ all cases re m o v ed from any State court to a n y district court of the UnitedW H I D B E E V

. P I E R C E C O U N T Y 11

States.” (Emphasis added). Moreover, it conflates service o f
p r o cess w ith the statute of limitations, which serve qui t e different functions: service of process provides defendants wi t h sufficient notice “to apprise interested parties of the
p e n d ency of the action and afford them an o pportunity t o present their objections,” Mullane
, 339 U.S. at 314, w h i l e statutes of limitations “prevent[ ] surprises throug h the revival of claims that have b een allowed to slumber until ev i d e nce has been lost, memories h ave fa d e d
, and witnesses have disappeared,” Gabelli v. SEC
, 133 S. Ct. 1216, 1 2 2 1 ( 2 013) (q u o t ing 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 ex p irat i o n of a state statute o f limitations bars a plaintiff from notify ing all defendants that they are subject to s u i t ; e v e n if a c laim has ex pired under a state statute of limitations
, a defendant can still waive this affirmative defense. Therefore, we ag ree with W itherow a nd Marshall only to the ex tent they hold that removal to federal
court c annot ex tend or revive a state statute of limitations that

ex p ired prior to removal.

I V

W e now turn to Whidbee’s arg u ments. First, W hidbee claims that h e commenced his a ction within the time r equired under W ashing ton law because he served process on Allen and Pierce County within the additional 120 day s provided b y § 1448. We reject this a

rg ument b ecause, as in W

itherow a nd Marshall
, it conflates federal service of process w ith the state statute of limit a t i o n s

. Althoug h § 1448 and Rule 4(m) allowed W hidbee to serve process on All en a nd Pierce County after r emoval, these laws do not chang e the period o f time for commencing an ac t i o n u n der the state statute o f limitations. B ecause that time for commencing the ac t ionW H I D B E E V

. P I E R C E C O U N T Y 12

ex p ired b efore the case was removed to federal court, the defendants were e n titled to r aise the state statute o f limitations as an affirmative defense. W hidbee did not assert any other g round for tolling the statute of limitations to the district court, and therefore waived any such arg uments.

W e also r eject W hidbee’s arg ument that h is service on the Pierce C ounty Risk Manag ement Office prior to removal should be construed as sufficient service on Pier c e County

un d e r the more f

lex ible federal service of process

re q u i rements. T he sufficiency of W hidbee’s pre-removal service of process is g overned by W ashing ton law, n ot b y Rule 4 of the F ederal Rules of C i v il Procedure. See Lee
, 12 F .3d at 936–37. W hidbee does not (and c annot) arg ue that h is pre-removal service of process complied with W a shi n g t o n law. According ly
, the distric t c o urt properly dismissed W h idbee’s claims on the g round that t h e y were time barred before his case was removed. 4

AF F IRMED.

4 T h e d istrict co u rt also d ism i ssed th e actio n o n th e g ro u n d th at W h id b ee co u ld n o t perf

ect serv ice of p ro cess u n der 2 8 U.S.C. § 1 4 4 8 af ter

rem o v al, rely in g o n W

ith ero w an d M

a rsh a ll

. A lth o u g h th is reaso n i n g w as in co rrect, w e m ay af

f i rm th e d istrict co u rt o n an y b asis su p p o rted b y th e

reco rd

. S ee Ma rin o v. Va sq u ez , 8 12 F.2 d 4 9 9 , 5 0 8 (9 th Cir. 1 9 87 ).