Cliftоn WHIDBEE, individually, Plaintiff-Appellant, v. PIERCE COUNTY, a Washington State Municipal Corporation; Eugene Allen, in his individual capacity, Defendants-Appellees.
No. 14-36094
United States Court of Appeals, Ninth Circuit.
May 26, 2017
1019
Argued and Submitted March 7, 2017 Seattle, Washington
Alicia M. Burton (argued), Deputy Proseсuting Attorney; Mark Lindquist, Prosecuting Attorney; Prosecuting Attorney‘s Office, Tacoma, Washington; for Defendants-Appellees.
Before: SUSAN P. GRABER, SANDRA S. IKUTA, and ANDREW D. HURWITZ, Circuit Judges.
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 County Sheriff‘s Deputy Eugene Allen. We affirm.
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.”
A plaintiff suing a county must serve the county auditor,
If the plaintiff fails to serve process no later than 90 days after the comрlaint 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, 860 P.2d 1009 (1993); Boyle v. Clark, 47 Wash.2d 418, 423-24, 287 P.2d 1006 (1955). But those defenses may be waived if a defendant fails to raise them. See Jones, 122
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 wаs 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, alleging claims under
After timely filing his complaint, Whidbee had 90 days, until January 8, 2014, to serve Pierce County or Allen with process. See
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 distriсt court granted the motion.
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
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).
Thе Federal Rules of Civil Procedure govern service of process in federal court, see
At the time Whidbee‘s case was removed to federal court, Rule 4(m) provided:
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 plаintiff—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.
Although
The Third and Eighth Circuits have likewise concluded that a federal court does nоt 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 thе 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 stаtute 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 States.” (Emphasis added). Moreover, it conflates service of process with the statute of limitations, which servе 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, 70 S.Ct. 652, while statutes of limitations “prevent[] surprises through the revivаl of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared,” Gabelli v. SEC, 568 U.S. 442, 133 S.Ct. 1216, 1221, 185 L.Ed.2d 297 (2013) (quoting R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 88 L.Ed. 788 (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 federаl 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
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 requirеments. 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.
Notes
For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is 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 servеd 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.
In all cases removed from any State court to any district court of the United Statеs 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.