IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE NICHOLAS WALKER, a married man, 

### ) No. 77954-1-I

Respondent,
v. 

### ) PUBLISHED OPINION ORKIN, LLC, a Delaware limited liability company, Appellant. 

### ) FILED: September 16, 2019 SCHINDLER, J.

— Under CR 3, an action is commenced by serving a copy ofthe summons and a copy ofthe complaint as provided in CR4. CR 4(a)(1) states, “The summons must be signed and dated bythe plaintiff orthe plaintiff’s attorney.” There is no dispute that Nicholas Walkerserved Orkin LLC with a copy ofa summons thatwas not signed. Orkin filed an answer, asserting insufficient service of process. We granted discretionary review ofthe superior court order denying the motion to dismiss the lawsuitfor insufficientservice of process. Because Walkerdid not correctthe defect by serving a signed copy ofthe summons on Orkin before the expiration ofthe statute of limitations ortimelyfile a motion to amend the summons to correctthe defect, we reverse and remand forentry ofan order dismissing the lawsuit.No. 77954-1-112

The procedural facts are not in dispute. On July 28, 2017, Nicholas Walkerfiled a summons and a complaintfor personal injury damages against Orkin LLC. The summons is signed by his attorney and dated July 27, 2017. The complaint is signed by the attorney and dated July 28, 2017. The personal injury complaint alleged that on August 8, 2014, Walkerwas injured in a vehicle collision. Walker alleged the Orkin driverwas negligent and his negligence was the proximate cause ofWalker’s damages. The statute of limitations for a personal injury action is three years. RCW4.16.080(2). Ifa plaintifffiles a complaintwithin the three-year period, the statute of limitations is tolled for 90 days to allowthe plaintiffto serve the defendant. RCW4.16.170 provides: Forthe purpose oftolling any statute of limitations an action shall be deemed commenced when the complaint is filed orsummons is served whichever occurs first, Ifservice has not been had on the defendant prior to the filing ofthe complaint, the plaintiffshall cause one or more ofthe defendants to be served personally, or commence service by publication within ninety days from the date offiling the complaint. Ifthe action is commenced by service on one or more ofthe defendants or by publication, the plaintiffshall file the summons and complaintwithin ninety days from the date ofservice. Iffollowing service, the complaint is not so filed, orfollowing filing, service is not so made, the action shall be deemed to not have been commenced for purposes oftolling the statute of limitations. The complaintWalkerfiled on July 28, 2017 toIled the three-year statute of limitations for 90 days or until October 26, 2017 to serve Orkin. On August 1, Walker served the Orkin registered agent with a copy ofa summons and a copy ofthe complaint. The copy ofthe summons is dated July 27, 2017 but is not signed. The copy ofthe complaint is not dated orsigned. The next day, Walker’s attorney sent a fax to Orkin attaching the “copy ofthe Summons and Complaintwhich were served on Orkin.”

2No. 77954-1-1/3

On September 7, Orkin filed an answerto the complaint. Orkin denied the allegations. Orkin asserted as an affirmative defense that “Plaintiff has failed to serve Defendant with process underWashington law.” Walkerdid not correctthe defect and serve Orkin with a copy ofthe signed summons before the expiration ofthe statute of limitations on October26, 2017. On November6, Orkin filed a CR 12(b) motion to dismiss the lawsuitfor insufficient service of process within the statute of limitations. Orkin argued Walkerdid not complywith the court rules forservice of process before the expiration ofthe statute of limitations on October 26, 2017. Orkin asserted that contrary to CR 4(a)(1), Walker did not serve itwith a copy ofa signed summons. Walker argued he complied with CR 4 by signing the summons and complaint filed on July 28, 2017. Walkeralso argued serving Orkin with an unsigned copy ofthe
summons did not result in prejudice to Orkin. The court denied the motion to dismiss. We granted the motion fordiscretionary review under RAP 2.3(b)(1). Orkin contends the superior court erred in denying the motion to dismiss the lawsuitforfailure to complywith the requirements of CR 4. Properservice ofthe summons and complaint is an essential prerequisite to obtaining personaljurisdiction. Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014). Service of process must complywith constitutional, statutory, and court rule requirements. Scanlan, 181 Wn.2d at 847. The plaintiff bears the initial burden to prove sufficient service. Scanlan, 181 Wn.2d at 847. The party challenging service of process must demonstrate by clear and convincing evidence that service was improper.

3No. 77954-1-114

Scanlan, 181 Wn.2d at 847. We reviewwhetherservice was properde novo. Scanlan, 181 Wn.2d at 847. We reviewthe interpretation of court rules de novo. Jafarv. Webb, 177 Wn.2d 520, 526, 303 P.3d 1042 (2013). Court rules are interpreted in the same manneras statutes. Jafar, 177 Wn.2d at 526. Ifthe rule’s meaning is plain on its face, we must give effectto that meaning as an expression ofthe drafter’s intent. Jafar, 177 Wn.2d at 526. We discern plain meaning from the plain language ofthe court rules. Columbia Riverkeeperv. Port ofVancouver, 188 Wn.2d 421, 432, 395 P.3d 1031 (2017). We read the rule “‘as a whole, harmonizing its provisions, and using related rules to help identifythe legislative intent embodied in the rule.’

“ Jafar, 177 Wn.2d at 526-27 (quoting State v. Chhom, 162 Wn.2d 451, 458, 173 P.3d 234 (2007)). Ifthe plain language ofthe rule is subject to only one interpretation, the court’s inquiry is at an end. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). CR 3 governs commencement of an action. CR 3(a) states, in pertinent part, “[A] civil action is commenced by service ofa copy of a summons togetherwith a copy ofa complaint, as provided in rule 4 or byfiling a complaint” as provided in RCW4.16.170.1 Orkin concedes that under ROW4.16.170, Walkertentatively commenced the action byfiling the complaint on July 28, 2017 and the statute of limitations was tolled for 90 days to serve Orkin. Walkerserved the registered agentfor Orkin on August 1. Orkin does not challenge the mannerofservice or claim prejudice. Orkin asserts Walker did not commence the lawsuitwithin the statute of limitations because Walker did not complywith the mandatory requirement under CR 4 to serve Orkin with a signed copy ofthe summons.

1 Emphasis added. 4No. 77954-1-115

CR 4(a) governs issuance ofthe summons. CR 4(a)(1) states: The summons must be signed and dated bythe plaintifforthe plaintiff’s attorney, and directed to the defendant requiring the defendantto defend the action and to serve a copy ofthe defendant’s appearance or defense on the person whose name is signed on the summons.~2] CR 4(b) governs the content and the form ofthe summons. CR 4(b)(1) states: Contents. The summons for personal service shall contain: (i) The title ofthe cause, specifying the name ofthe court in which the action is brought, the name ofthe countydesignated bythe plaintiff as the place oftrial, and the names ofthe parties to the action, plaintiff and defendant; (ii) A direction to the defendant summoning the defendant to serve a copy ofthe defendant’s defense within a time stated in the summons; (iii) A notice that, in case offailure so to do, judgmentwill be rendered againstthe defendant by default. It shall be signed and dated by the plaintiff, orthe plaintiff’s attorney, with the addition ofthe plaintiff’s post office address, atwhich the papers in the action may be served on the plaintiff by mail.~3~ CR 4(b)(2) states the summons for personal service shall substantially comply with ‘the following form”:
SUPERIOR COURT OF WASHINGTON FOR[ ]COUNTY
Plaintiff, 

### ) No.

__________________ Summons [20 days]

Defendant. TO THE DEFENDANT: A lawsuit has been started againstyou in the above entitled court by

_________________, plaintiff. Plaintiff’s claim is stated in the written complaint, a copy ofwhich is served upon you with this summons.

2 Emphasis added.

~ Second emphasis added.
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In orderto defend againstthis lawsuit, you must respond to the complaint by stating your defense in writing, and by serving a copy upon the person signing this summons within 20 days afterthe service ofthis summons, excluding the day ofservice, or a defaultjudgment may be entered against you without notice. A defaultjudgment is one where plaintiff is entitled to what she or he asks for because you have not responded. If you serve a notice ofappearance on the undersigned person, you are entitled to notice before a defaultjudgment may be entered. You may demand thatthe plaintifffile this lawsuitwith the court. Ifyou do so, the demand must be in writing and must be served upon the person signing this summons. Within 14 days afteryou serve the demand, the plaintiff mustfile this lawsuitwith the court, orthe service on you ofthis summons and complaintwill be void. Ifyou wish to seekthe advice of an attorney in this matter, you should do so promptly so thatyourwritten response, ifany, may be served on time. This summons is issued pursuant to rule 4 ofthe Superior Court Civil Rules ofthe State ofWashington. [signed]

_____________________ Print orType Name 

### () Plaintiff 

### () Plaintiffs Attorney P.O. Address

_______________________________________________ Dated

______________ Telephone Number

___________________________________________ [4] The plain and unambiguous language ofCR 3(a) states that a civil action is commenced by service of a copy ofa summons and a complaint “as provided in rule 4.” The plain and unambiguous language of CR 4(a)(1) states, “The summons must be signed and dated by the plaintiff orthe plaintiff’s attorney.” CR 4(b)(1 )(iii) also states the
summons “shall be signed and dated bythe plaintiff, orthe plaintiff’s attorney.”5 The word “must” and the word “shall” impose a mandatory requirement. Ohio Sec. Ins. Co.
v. Axis Ins. Co., 190 Wn.2d 348, 352, 413 P.3d 1028 (2018); Erection Co. v. Dep’t of Labor& Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993). The form setforth in CR

~ Boldface added.

~We note the General Rules allow attorneys and nonattorneys to sign electronic documents with a digital signature or an si.” GR 30(d)(2). ROW 19.360.030 defines “electronic signature.” 6No. 77954-1-1/7

4(b)(2) shows the plaintiffor plaintiff’s attorney must sign the summons and print ortype the name belowthe signature line. Contraryto the assertion ofOrkin, a defect in the form ofthe summons is not always fatal. The purpose ofa summons is to give notice ofthe time to answer prescribed by law and advise the defendant ofthe consequences offailing to do so. Quality Rock Prods., Inc. v. Thurston County, 126Wn. App. 250, 264, 108 P.3d 805 (2005).The failure to accomplish personal service of process is not a defectthat can be cured by amendment. Sammamish Pointe Homeowners Ass’n v. Sammamish Pointe LLC, 116 Wn. App. 117, 124,64 P.3d 656 (2003). By contrast, errors in the form of original process are ‘generallyviewed as amendable defects, so long as the defendant is not prejudiced.” Sammamish Pointe, 116 Wn. App. at 124. “‘Dismissal should not be granted on a mere technicality easily remedied’

“ by either correcting the defect and serving the defendant orfiling a timely motion to amend under CR 4(h). Sammamish Pointe, ll6Wn. App. at 125 (quoting In re Marriage of Morrison, 26Wn. App. 571, 573, 613 P.2d 557 (1980)). CR 4(h) allows a plaintiffto file a motion to amend a defective summons that substantially complies with the purpose ofa summons. CR 4(h) provides: Amendment of Process. At anytime in its discretion and upon such terms as it deemsjust, the court may allow any process or proofofservice thereofto be amended, unless it clearly appears that material prejudice would resultto the substantial rights ofthe party againstwhom the process issued. However, a plaintiff must “make a timely motion to amend the summons.” Sammamish Pointe, 116 Wn. App. at 125. “‘[T]he plaintiff must make some motion to

7No. 77954-1-1/8

amend

. . . . Without such a motion, the proper action forthe trial court is to determine whetherto dismiss the cause for lack ofjurisdiction.’

“ Sammamish Pointe 116 Wn. App. at 125 (quoting Morrison, 26 Wn. App. at 575). The uncontroverted record establishes thatWalkerdid not sign the copy ofthe summons served on Orkin. After Orkin asserted the affirmative defense of insufficient service of process, Walker did not correctthe defect by either serving Orkin with a signed summons before expiration ofthe statute of limitations orfiling a timely motion to amend the summons. We reverse denial ofthe motion to dismiss and remand for entry ofan order ofdismissal.

WE CONCUR: 

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