Clifton Whidbee v. Pierce County, 857 F.3d 1019

In November 2010 Deputy Eugene Allen executed a search warrant at Clifton Whidbee’s home; a flash-bang grenade burned Whidbee and he was detained until November 24, 2010.
Whidbee filed a complaint in Washington state court on October 10, 2013 asserting § 1983 and state-law personal injury claims; Washington’s three-year limitations period (tolled while in custody) made the filing timely through November 24, 2013.
Under Washington law a plaintiff who files a complaint must serve at least one defendant within 90 days for tolling to continue; otherwise the action is deemed not commenced for statute-of-limitations purposes.
Whidbee failed to serve Pierce County’s Auditor and Deputy Allen within 90 days; service on the County Risk Management Office and later service on Allen occurred after the 90-day window (Allen served April 2014; Auditor served August 2014).
Defendants removed to federal court in May 2014 and moved to dismiss as time-barred; the district court granted dismissal. Whidbee appealed, arguing federal post-removal service rules saved his claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether federal post-removal service rules extend or revive an expired state statute of limitations	Whidbee: § 1448 and Fed. R. Civ. P. 4(m) gave an additional 120 days after removal to serve, so his service after removal cured the pre-removal failure and preserved tolling	Defs: State statute of limitations and state service rules control commencement; post-removal federal service cannot extend or revive an expired state limitations period	Federal post-removal service rules may permit service but do not extend or revive a state statute of limitations that expired before removal; dismissal affirmed
Whether pre-removal service on the County Risk Management Office satisfied state law service requirements	Whidbee: his pre-removal service on Risk Management substantially complied and should count for tolling	Defs: Washington law requires strict compliance (service on the Auditor for county); service on other officials is insufficient	Pre-removal service did not comply with Washington law; it was insufficient to toll the statute

Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822 (9th Cir. 2003) (forum state statute of limitations applies to § 1983 claims)
Lee v. City of Beaumont, 12 F.3d 933 (9th Cir. 1993) (pre-removal service sufficiency governed by state law)
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (service provides notice and opportunity to be heard)
Silva v. Crain, 169 F.3d 608 (9th Cir. 1999) (limitations period and tolling governed by state law)
Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3d Cir. 1976) (federal court cannot revive an expired state limitations period)
Marshall v. Warwick, 155 F.3d 1027 (8th Cir. 1998) (same conclusion reached regarding post-removal service and expired state limitations)
Mann v. American Airlines, 324 F.3d 1088 (9th Cir. 2003) (de novo review of statute-of-limitations dismissal)