5 UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7
8 ALICIA SANCHEZ HOLIWELL, CASE NO. 2:24-cv-00720-RSL 9 Plaintiff, v. 10
11 ANDY CHARLES HIGGINS, et al., ORDER REGARDING SERVICE
12 Defendants. 13
14 This matter comes before the Court on “Defendant City of Seattle’s and Related 15 City Defendants’ Motion to Dismiss or, in the Alternative, Quash Service of Summons 16 Pursuant to FRCP 4(m) and 12(b)(5).” Dkt. # 40. The City of Seattle defendants1 have 17 18 appeared specially to point out the deficiencies in plaintiffs’ attempts to serve the 19 20 21
22 1 As used in this Order, “City of Seattle defendants” means all City-affiliated entities and individuals for whom summons was issued, specifically the City of Seattle (including the Mayor’s Office, the City Attorney’s Office, the 23 Seattle Department of Construction and Inspection, the Seattle Ethics and Elections Commission, the Seattle Civil Service Commission, the Seattle Office of Civil Rights, the Human Resources Investigative Unit, the Seattle 24 Employment Retirement Services, the Seattle Department of Human Resources, and the Seattle Customer Service Bureau), Andy Charles Higgins, Andy Lunde, Al Lunde, Steve Burns, Ede Courtenay, Mike Peli, Danielle Priest, 25 Stephanie Tate, Linda Elwood, Stacie Bonathan, Amy Donlan, Rebecca Scheffer, Brandon Kuykendall, Marc Mayo, Wayne Barnett, Andrea Scheele, Larry Lunde, Jeffrey S. Davis, Tim Rasmussen, Sam Steele, Scott Lau, Bex Randel, 26 Shelbe Kukowski, Peter Fuerbringer, Bruce Harrold, Mike Chin, Kristin Hawes, Derrick Wheeler-Smith, Nathan Torgelson, and Patrick Foss. ORDER REGARDING SERVICE - 1 1 summons and complaint on them, to request that the certificates of service and waivers of 2 service in the record be quashed, and to seek dismissal of the claims asserted against them. 3 Plaintiff has filed a series of complaints, Dkt. # 4, 7, 9, and 12, only the first two of 4 5 which are authorized by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 15(a)(1) 6 (authorizing a single amendment as of right and requiring leave of court or agreement of 7 opposing parties for any subsequent amendment). Plaintiff separately directed the Clerk of 8 Court through praecipes and requests for summons to add and delete defendants, Dkt. # 15, 9 10 19, 24, and 37. In response to these various submissions, the Clerk issued summons 11 regarding the City of Seattle defendants on June 3, 2024, and August 27, 2024. Dkt. # 5 12 and 16. As discussed below, those summons were never properly served. 13 A federal court cannot exercise jurisdiction over a defendant unless the defendant 14 15 has been served with the summons and complaint under Fed. R. Civ. P. 4. Direct Mail 16 Specialists, Inc. v. Eclat Computerized Tech., 840 F.2d 685, 688 (9th Cir. 1988). Without 17 substantial compliance with Rule 4, “neither actual notice nor simply naming the 18 defendant in the complaint will provide personal jurisdiction.” Id. (quoting Benny v. Pipes, 19 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. 1987)). Once service 20 21 is challenged, the plaintiff bears the burden of establishing that service was valid. 22 Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). Plaintiff’s only response to the 23 City’s challenge to the sufficiency of service is a complaint regarding property damage 24 with no relationship to or mention of the service issues before the Court. Dkt. # 43. 25 26 ORDER REGARDING SERVICE - 2 1 A municipal corporation and its departments, offices, agencies, boards, and 2 commissions is properly served by (a) delivering a copy of the summons and complaint to 3 the chief executive officer of the municipality or (b) serving the documents in the manner 4 5 prescribed by state law. Fed. R. Civ. P. 4(j)(2). There is no indication that plaintiff 6 delivered the summons and complaint to Mayor Bruce Harrell personally. Her initial 7 attempts at service, described in Dkt. # 11, were by email and were not directed to Mayor 8 Harrell. State law also allows personal service, during normal office hours, on the Mayor’s 9 10 designated agent or city clerk. RCW 4.28.080. The City of Seattle generally requires 11 service to be made in person at the Office of the City Clerk, but has agreed to a limited 12 waiver of the personal service requirement if summons and the complaint are served via 13 email to MOS_Legalservice@seattle.gov or CityClerkFIling@seattle.gov (specific 14 15 instructions can be found at https://seattle.gov/mayor/service-of-legal-documents). Plaintiff 16 did none of these things, instead having a third party email the documents to 17 Law_CityAttorney_Crim_NOA@seattle.gov, an email box in the criminal division of the 18 City Attorney’s Office. The City Attorney is not authorized to accept service of process on 19 behalf of the City. 20 21 When the City’s attorney contacted plaintiff to let her know that her attempts at 22 service were insufficient and that the certificates of service were misleading,2 plaintiff 23 indicated that she had mailed requests for waivers of service pursuant to Rule 4(d) and 24 25
26 2 The proofs of service state, inter alia, that “Karina Veliz[] personally served” the documents by email and incurred travel costs in doing so. Dkt. # 11. ORDER REGARDING SERVICE - 3 1 would amend the proofs of service accordingly. Regardless whether those waivers of 2 service satisfy the requirements of Rule 4(d),3 the City of Seattle did not return the waivers 3 on behalf of itself or any of its departments, offices, agencies, boards, or commissions. 4 5 When a defendant declines to sign and return a waiver, plaintiff must personally serve the 6 complaint and summons and may then seek to recover the expense of doing so from the 7 defendant. Fed. R. Civ. P. 4(d)(2). There is no indication that plaintiff attempted personal 8 service on the City or the City-affiliated entities after the waiver period expired. 9 10 With regards to the City-affiliated individual defendants, Rule 4(e)(2) specifies that 11 service is to be accomplished by (a) delivering a copy to the individual personally, 12 (b) leaving a copy at the individual’s house with a person who resides there and is of 13 suitable age and discretion, or (c) delivering a copy to an agent authorized to accept service 14 15 of process. See also RCW 4.28.080(16). Plaintiff chose to have the process server email 16 copies of the complaint and summons to the individual defendants, which is clearly 17 insufficient under Rule 4(e)(2).
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5 UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7
8 ALICIA SANCHEZ HOLIWELL, CASE NO. 2:24-cv-00720-RSL 9 Plaintiff, v. 10
11 ANDY CHARLES HIGGINS, et al., ORDER REGARDING SERVICE
12 Defendants. 13
14 This matter comes before the Court on “Defendant City of Seattle’s and Related 15 City Defendants’ Motion to Dismiss or, in the Alternative, Quash Service of Summons 16 Pursuant to FRCP 4(m) and 12(b)(5).” Dkt. # 40. The City of Seattle defendants1 have 17 18 appeared specially to point out the deficiencies in plaintiffs’ attempts to serve the 19 20 21
22 1 As used in this Order, “City of Seattle defendants” means all City-affiliated entities and individuals for whom summons was issued, specifically the City of Seattle (including the Mayor’s Office, the City Attorney’s Office, the 23 Seattle Department of Construction and Inspection, the Seattle Ethics and Elections Commission, the Seattle Civil Service Commission, the Seattle Office of Civil Rights, the Human Resources Investigative Unit, the Seattle 24 Employment Retirement Services, the Seattle Department of Human Resources, and the Seattle Customer Service Bureau), Andy Charles Higgins, Andy Lunde, Al Lunde, Steve Burns, Ede Courtenay, Mike Peli, Danielle Priest, 25 Stephanie Tate, Linda Elwood, Stacie Bonathan, Amy Donlan, Rebecca Scheffer, Brandon Kuykendall, Marc Mayo, Wayne Barnett, Andrea Scheele, Larry Lunde, Jeffrey S. Davis, Tim Rasmussen, Sam Steele, Scott Lau, Bex Randel, 26 Shelbe Kukowski, Peter Fuerbringer, Bruce Harrold, Mike Chin, Kristin Hawes, Derrick Wheeler-Smith, Nathan Torgelson, and Patrick Foss. ORDER REGARDING SERVICE - 1 1 summons and complaint on them, to request that the certificates of service and waivers of 2 service in the record be quashed, and to seek dismissal of the claims asserted against them. 3 Plaintiff has filed a series of complaints, Dkt. # 4, 7, 9, and 12, only the first two of 4 5 which are authorized by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 15(a)(1) 6 (authorizing a single amendment as of right and requiring leave of court or agreement of 7 opposing parties for any subsequent amendment). Plaintiff separately directed the Clerk of 8 Court through praecipes and requests for summons to add and delete defendants, Dkt. # 15, 9 10 19, 24, and 37. In response to these various submissions, the Clerk issued summons 11 regarding the City of Seattle defendants on June 3, 2024, and August 27, 2024. Dkt. # 5 12 and 16. As discussed below, those summons were never properly served. 13 A federal court cannot exercise jurisdiction over a defendant unless the defendant 14 15 has been served with the summons and complaint under Fed. R. Civ. P. 4. Direct Mail 16 Specialists, Inc. v. Eclat Computerized Tech., 840 F.2d 685, 688 (9th Cir. 1988). Without 17 substantial compliance with Rule 4, “neither actual notice nor simply naming the 18 defendant in the complaint will provide personal jurisdiction.” Id. (quoting Benny v. Pipes, 19 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. 1987)). Once service 20 21 is challenged, the plaintiff bears the burden of establishing that service was valid. 22 Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). Plaintiff’s only response to the 23 City’s challenge to the sufficiency of service is a complaint regarding property damage 24 with no relationship to or mention of the service issues before the Court. Dkt. # 43. 25 26 ORDER REGARDING SERVICE - 2 1 A municipal corporation and its departments, offices, agencies, boards, and 2 commissions is properly served by (a) delivering a copy of the summons and complaint to 3 the chief executive officer of the municipality or (b) serving the documents in the manner 4 5 prescribed by state law. Fed. R. Civ. P. 4(j)(2). There is no indication that plaintiff 6 delivered the summons and complaint to Mayor Bruce Harrell personally. Her initial 7 attempts at service, described in Dkt. # 11, were by email and were not directed to Mayor 8 Harrell. State law also allows personal service, during normal office hours, on the Mayor’s 9 10 designated agent or city clerk. RCW 4.28.080. The City of Seattle generally requires 11 service to be made in person at the Office of the City Clerk, but has agreed to a limited 12 waiver of the personal service requirement if summons and the complaint are served via 13 email to MOS_Legalservice@seattle.gov or CityClerkFIling@seattle.gov (specific 14 15 instructions can be found at https://seattle.gov/mayor/service-of-legal-documents). Plaintiff 16 did none of these things, instead having a third party email the documents to 17 Law_CityAttorney_Crim_NOA@seattle.gov, an email box in the criminal division of the 18 City Attorney’s Office. The City Attorney is not authorized to accept service of process on 19 behalf of the City. 20 21 When the City’s attorney contacted plaintiff to let her know that her attempts at 22 service were insufficient and that the certificates of service were misleading,2 plaintiff 23 indicated that she had mailed requests for waivers of service pursuant to Rule 4(d) and 24 25
26 2 The proofs of service state, inter alia, that “Karina Veliz[] personally served” the documents by email and incurred travel costs in doing so. Dkt. # 11. ORDER REGARDING SERVICE - 3 1 would amend the proofs of service accordingly. Regardless whether those waivers of 2 service satisfy the requirements of Rule 4(d),3 the City of Seattle did not return the waivers 3 on behalf of itself or any of its departments, offices, agencies, boards, or commissions. 4 5 When a defendant declines to sign and return a waiver, plaintiff must personally serve the 6 complaint and summons and may then seek to recover the expense of doing so from the 7 defendant. Fed. R. Civ. P. 4(d)(2). There is no indication that plaintiff attempted personal 8 service on the City or the City-affiliated entities after the waiver period expired. 9 10 With regards to the City-affiliated individual defendants, Rule 4(e)(2) specifies that 11 service is to be accomplished by (a) delivering a copy to the individual personally, 12 (b) leaving a copy at the individual’s house with a person who resides there and is of 13 suitable age and discretion, or (c) delivering a copy to an agent authorized to accept service 14 15 of process. See also RCW 4.28.080(16). Plaintiff chose to have the process server email 16 copies of the complaint and summons to the individual defendants, which is clearly 17 insufficient under Rule 4(e)(2). Her subsequent attempts to obtain waivers of service were 18 unsuccessful.4 There is no indication that plaintiff attempted personal service on the City- 19 affiliated individuals after the waiver period expired. 20 21 Pursuant to Rule 4(m), “[i]f a defendant is not served within 90 days after the 22 complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 23
24 3 It appears that some waiver requests were directed at persons or entities for whom summons had not been issued, lacked 2 copies of the waiver form and/or a prepaid means for returning the form, misstated the date on which they 25 were sent, and/or were not sent by first-class mail or other reliable means. 26 4 In addition to the defects in the waiver of service packets sent to the City entities, the packets mailed or delivered to the individual defendants went to their work addresses rather than their homes. ORDER REGARDING SERVICE - 4 1 dismiss the action without prejudice against that defendant or order that service be made 2 within a specified time.” The original complaint in this action was filed more than six 3 months ago. Plaintiff has not shown good cause for her failure to timely serve, so the Court 4 5 must determine whether to exercise its discretion to grant an extension of the service 6 period. “In making extension decisions under Rule 4(m) a district court may consider 7 factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a 8 lawsuit, and eventual service.’” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) 9 10 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)). Having 11 considered those factors, the length of the delay, plaintiff’s efforts to achieve service, and 12 her pro se status, the Court finds that an extension of time is appropriate. 13
14 15 For all of the foregoing reasons, the City of Seattle defendants’ motion to dismiss is 16 GRANTED in part. Plaintiff has not successfully served the City of Seattle (including the 17 Mayor’s Office, the City Attorney’s Office, the Seattle Department of Construction and 18 Inspection, the Seattle Ethics and Elections Commission, the Seattle Civil Service 19 Commission, the Seattle Office of Civil Rights, the Human Resources Investigative Unit, 20 21 the Seattle Employment Retirement Services, the Seattle Department of Human Resources, 22 and the Seattle Customer Service Bureau), Andy Charles Higgins, Andy Lunde, Al Lunde, 23 Steve Burns, Ede Courtenay, Mike Peli, Danielle Priest, Stephanie Tate, Linda Elwood, 24 Stacie Bonathan, Amy Donlan, Rebecca Scheffer, Brandon Kuykendall, Marc Mayo, 25 26 Wayne Barnett, Andrea Scheele, Larry Lunde, Jeffrey S. Davis, Tim Rasmussen, Sam ORDER REGARDING SERVICE - 5 1 Steele, Scott Lau, Bex Randel, Shelbe Kukowski, Peter Fuerbringer, Bruce Harrold, Mike 2 Chin, Kristin Hawes, Derrick Wheeler-Smith, Nathan Torgelson, or Patrick Foss. To the 3 extent plaintiff has filed affidavits or other proof of service on these entities and 4 5 individuals, they are hereby STRICKEN. Plaintiff shall have forty-five days from the date 6 of this Order to file proof of personal service and/or a signed waiver of service for the City 7 of Seattle defendants. Failure to do so will result in the dismissal of the claims asserted 8 against defendants who have not been served. 9 10 11 Dated this 9th day of December, 2024.
12 13 Robert S. Lasnik United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER REGARDING SERVICE - 6