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3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 HAILEY LOVE, 8 Plaintiff, C23-0146 TSZ 9 v. ORDER 10 WILLIAM TYTUS, et al., 11 Defendants. 12 THIS MATTER comes before the Court on Defendants’ motion for summary 13 judgment, docket no. 18. Having reviewed all papers filed in support of, and in 14 opposition to, the motion, the Court enters the following order. 15 Background 16 This action arises from a May 15, 2019, motor vehicle accident between Hailey 17 Love (“Plaintiff”) and William Tytus (“Defendant”) in Edmonds, Washington. Compl. ¶¶ 18 1–7 (docket no. 1). The Complaint identifies Plaintiff as a “citizen and resident of 19 Flathead County, Montana,” id. at ¶ 1, and identifies Defendant as a “citizen and resident 20 of Snohomish County, Washington” residing at an address in Mukilteo, Washington, id. 21 at ¶ 2. 22 1 On May 11, 2022, Plaintiff commenced this action in the United States District 2 Court for the District of Montana (the “Montana Court”). Docket no. 1. Plaintiff filed this
3 lawsuit four days before the applicable statute of limitations ran—the collision was on 4 May 15, 2019, and Plaintiff filed on May 11, 2022. But after Plaintiff filed her lawsuit, 5 the case languished on the docket for months. Plaintiff did not request the Montana Court 6 issue a summons to Defendant until September 28, 2022. Docket no. 2. And Plaintiff did 7 not serve Defendant until October 3, 2022, 145 days after Plaintiff filed her case. Docket 8 no. 3.
9 On January 30, 2023, the Montana Court denied Defendants’ motion to dismiss for 10 lack of personal jurisdiction and instead transferred the case to this Court. See Docket 11 no. 10 at 7. Defendants now move for summary judgment on the theory that the statute of 12 limitations on Plaintiff’s claim has run because Plaintiff failed to affect timely service on 13 Defendant in compliance with RCW 4.16.080(2) and RCW 4.16.170.
14 Discussion 15 The Court shall grant summary judgment if no genuine issue of material fact 16 exists, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 17 56(a). The moving party bears the initial burden of demonstrating the absence of a 18 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact
19 is material if it might affect the outcome of the suit under the governing law. Anderson v. 20 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary 21 judgment, the adverse party must present affirmative evidence, which “is to be believed” 22 and from which all “justifiable inferences” are to be favorably drawn. Id. at 255, 257. 1 When the record, however, taken as a whole, could not lead a rational trier of fact to find 2 for the non-moving party, summary judgment is warranted. See Beard v. Banks, 548 U.S.
3 521, 529 (2006) (“Rule 56 ‘mandates the entry of summary judgment, after adequate time 4 for discovery and upon motion, against a party who fails to make a showing sufficient to 5 establish the existence of an element essential to that party’s case, and on which that 6 party will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)). 7 Plaintiff’s claim is subject to a three-year statute of limitations. See RCW 8 4.16.080(2); RCW 4.16.170. Washington courts have repeatedly held that the filing of a
9 complaint does not constitute the commencement of an action for purposes of tolling the 10 statute of limitations. O’Neill v. Farmers Ins. Co. of Wash., 124 Wash. App. 516, 125 11 P.3d 134, 137 (2004). The plaintiff must still serve a defendant within ninety days of the 12 date of filing in order for the commencement to be complete. Id.; see also RCW 4.16.170 13 (providing that an action is “commenced” for purposes of tolling the statute of limitations
14 only if the plaintiff serves process upon “one or more of the defendants” within 90 days 15 of the date of filing the complaint). 16 Plaintiff concedes that she did not serve Defendant within the 90-day window. 17 Instead, Plaintiff argues (A) that Defendant’s Rule 56 motion is procedurally improper, 18 and (B) that Defendant is judicially estopped from raising the statute of limitations
19 defense.1 Both arguments fail. 20
21 1 In connection with the estoppel argument, Plaintiff has moved to strike certain statements offered by Defendant as hearsay. Docket no. 26. The Court does not reach the issue of Defendant’s offered 22 statements in its ruling. The Court therefore STRIKES the objection as moot. 1 A. Plaintiff’s Procedural Argument 2 Plaintiff first argues that Defendant is barred from raising the statute of limitations
3 defense because Defendant failed to raise it in their first motion to dismiss. Plaintiff 4 misapprehends the law. Statute of limitations is an affirmative defense pursuant to 5 Federal Rule of Civil Procedure 8(c)(1). This defense is separate from the defenses 6 identified in Rule 12(b). Thus, Defendant did not have to raise the defense in his earlier 7 motion to dismiss to preserve it. Instead, Defendant had to raise the defense in his answer 8 to use it, which he did. See Aff. Def. ¶ 1 (docket no. 17). Plaintiff’s first argument thus
9 fails. 10 B. Plaintiff’s Judicial Estoppel Argument 11 Plaintiff’s second argument fares no better. Plaintiff argues that the Court should 12 estop Defendant from raising the statute of limitations defense because of Defendant’s 13 previous statements to the Montana Court. Plaintiff asserts that Defendant’s statements to
14 the Montana Court “implicitly waived any service of process defense resulting in non- 15 compliance with a statute of limitations.” Pl.’s Resp. at 8 (docket no. 21). 16 Federal law governs the application of judicial estoppel. See generally Milton H. 17 Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012) (holding, 18 among other things, that regional circuit law guides the judicial estoppel analysis). The
19 Ninth Circuit has described the equitable doctrine of judicial estoppel as preventing a 20 party from relying on an argument to prevail in one phase of the case and then offering a 21 contradictory argument to succeed in another phase of the litigation. See id. at 993. 22 Although the Ninth Circuit previously held that judicial estoppel applied only when a 1 party’s position was “tantamount to a knowing misrepresentation to or even fraud on the 2 court,” in light of an intervening Supreme Court decision, the Ninth Circuit now
3 considers “chicanery or knowing misrepresentation” to be only one factor in the judicial 4 estoppel analysis and not an “inflexible prerequisite” to its application. Id. at 994–95 5 (citing New Hampshire v. Maine, 532 U.S. 742 (2001)).
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3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 HAILEY LOVE, 8 Plaintiff, C23-0146 TSZ 9 v. ORDER 10 WILLIAM TYTUS, et al., 11 Defendants. 12 THIS MATTER comes before the Court on Defendants’ motion for summary 13 judgment, docket no. 18. Having reviewed all papers filed in support of, and in 14 opposition to, the motion, the Court enters the following order. 15 Background 16 This action arises from a May 15, 2019, motor vehicle accident between Hailey 17 Love (“Plaintiff”) and William Tytus (“Defendant”) in Edmonds, Washington. Compl. ¶¶ 18 1–7 (docket no. 1). The Complaint identifies Plaintiff as a “citizen and resident of 19 Flathead County, Montana,” id. at ¶ 1, and identifies Defendant as a “citizen and resident 20 of Snohomish County, Washington” residing at an address in Mukilteo, Washington, id. 21 at ¶ 2. 22 1 On May 11, 2022, Plaintiff commenced this action in the United States District 2 Court for the District of Montana (the “Montana Court”). Docket no. 1. Plaintiff filed this
3 lawsuit four days before the applicable statute of limitations ran—the collision was on 4 May 15, 2019, and Plaintiff filed on May 11, 2022. But after Plaintiff filed her lawsuit, 5 the case languished on the docket for months. Plaintiff did not request the Montana Court 6 issue a summons to Defendant until September 28, 2022. Docket no. 2. And Plaintiff did 7 not serve Defendant until October 3, 2022, 145 days after Plaintiff filed her case. Docket 8 no. 3.
9 On January 30, 2023, the Montana Court denied Defendants’ motion to dismiss for 10 lack of personal jurisdiction and instead transferred the case to this Court. See Docket 11 no. 10 at 7. Defendants now move for summary judgment on the theory that the statute of 12 limitations on Plaintiff’s claim has run because Plaintiff failed to affect timely service on 13 Defendant in compliance with RCW 4.16.080(2) and RCW 4.16.170.
14 Discussion 15 The Court shall grant summary judgment if no genuine issue of material fact 16 exists, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 17 56(a). The moving party bears the initial burden of demonstrating the absence of a 18 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact
19 is material if it might affect the outcome of the suit under the governing law. Anderson v. 20 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary 21 judgment, the adverse party must present affirmative evidence, which “is to be believed” 22 and from which all “justifiable inferences” are to be favorably drawn. Id. at 255, 257. 1 When the record, however, taken as a whole, could not lead a rational trier of fact to find 2 for the non-moving party, summary judgment is warranted. See Beard v. Banks, 548 U.S.
3 521, 529 (2006) (“Rule 56 ‘mandates the entry of summary judgment, after adequate time 4 for discovery and upon motion, against a party who fails to make a showing sufficient to 5 establish the existence of an element essential to that party’s case, and on which that 6 party will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)). 7 Plaintiff’s claim is subject to a three-year statute of limitations. See RCW 8 4.16.080(2); RCW 4.16.170. Washington courts have repeatedly held that the filing of a
9 complaint does not constitute the commencement of an action for purposes of tolling the 10 statute of limitations. O’Neill v. Farmers Ins. Co. of Wash., 124 Wash. App. 516, 125 11 P.3d 134, 137 (2004). The plaintiff must still serve a defendant within ninety days of the 12 date of filing in order for the commencement to be complete. Id.; see also RCW 4.16.170 13 (providing that an action is “commenced” for purposes of tolling the statute of limitations
14 only if the plaintiff serves process upon “one or more of the defendants” within 90 days 15 of the date of filing the complaint). 16 Plaintiff concedes that she did not serve Defendant within the 90-day window. 17 Instead, Plaintiff argues (A) that Defendant’s Rule 56 motion is procedurally improper, 18 and (B) that Defendant is judicially estopped from raising the statute of limitations
19 defense.1 Both arguments fail. 20
21 1 In connection with the estoppel argument, Plaintiff has moved to strike certain statements offered by Defendant as hearsay. Docket no. 26. The Court does not reach the issue of Defendant’s offered 22 statements in its ruling. The Court therefore STRIKES the objection as moot. 1 A. Plaintiff’s Procedural Argument 2 Plaintiff first argues that Defendant is barred from raising the statute of limitations
3 defense because Defendant failed to raise it in their first motion to dismiss. Plaintiff 4 misapprehends the law. Statute of limitations is an affirmative defense pursuant to 5 Federal Rule of Civil Procedure 8(c)(1). This defense is separate from the defenses 6 identified in Rule 12(b). Thus, Defendant did not have to raise the defense in his earlier 7 motion to dismiss to preserve it. Instead, Defendant had to raise the defense in his answer 8 to use it, which he did. See Aff. Def. ¶ 1 (docket no. 17). Plaintiff’s first argument thus
9 fails. 10 B. Plaintiff’s Judicial Estoppel Argument 11 Plaintiff’s second argument fares no better. Plaintiff argues that the Court should 12 estop Defendant from raising the statute of limitations defense because of Defendant’s 13 previous statements to the Montana Court. Plaintiff asserts that Defendant’s statements to
14 the Montana Court “implicitly waived any service of process defense resulting in non- 15 compliance with a statute of limitations.” Pl.’s Resp. at 8 (docket no. 21). 16 Federal law governs the application of judicial estoppel. See generally Milton H. 17 Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012) (holding, 18 among other things, that regional circuit law guides the judicial estoppel analysis). The
19 Ninth Circuit has described the equitable doctrine of judicial estoppel as preventing a 20 party from relying on an argument to prevail in one phase of the case and then offering a 21 contradictory argument to succeed in another phase of the litigation. See id. at 993. 22 Although the Ninth Circuit previously held that judicial estoppel applied only when a 1 party’s position was “tantamount to a knowing misrepresentation to or even fraud on the 2 court,” in light of an intervening Supreme Court decision, the Ninth Circuit now
3 considers “chicanery or knowing misrepresentation” to be only one factor in the judicial 4 estoppel analysis and not an “inflexible prerequisite” to its application. Id. at 994–95 5 (citing New Hampshire v. Maine, 532 U.S. 742 (2001)). 6 In New Hampshire, the only case cited by Plaintiff in opposition, the Supreme 7 Court indicated that “several factors typically inform the decision whether to apply the 8 doctrine in a particular case.” 532 U.S. at 750. These considerations include (i) whether
9 the later position is “clearly inconsistent” with the earlier position, (ii) whether 10 acceptance of both the previous and subsequent positions would create a perception that 11 the court was misled on one or the other occasion; and (iii) whether the party asserting an 12 inconsistent position would derive an unfair advantage or impose an unfair detriment on 13 the opposing party. Id. at 750–51. The Supreme Court cautioned that it was not offering
14 an “exhaustive formula” for determining when judicial estoppel should be invoked, and it 15 acknowledged that additional considerations might weigh in favor of the doctrine’s 16 application in “specific factual contexts.” Id. at 751. 17 Regarding the first New Hampshire factor, Defendant’s position in this Court is 18 not clearly inconsistent with his position in the Montana Court. In fact, in Plaintiff’s
19 response to this motion, docket no. 21 at 8, Plaintiff seems to concede this point. Plaintiff 20 argues only that Defendant “implicitly waived any service of process defense.” This 21 position is far different than the “clearly inconsistent position” required by New 22 Hampshire. Citing that “implicit” waiver, Plaintiff argues that Defendant’s statements 1 before the Montana Court prevent him from raising the defense now. Plaintiff points to 2 Defendant’s statement that he “agree[d] with the Plaintiff that dismissal rather than
3 transfer could create a statute of limitations problem for the Plaintiff which would 4 entirely foreclose the Plaintiff from pursuing her claims against Mr. Tytus” and that “it is 5 not Mr. Tytus’ intent to take advantage of that mistake by entirely foreclosing the 6 Plaintiff from pursuing her claims against him.” Docket no. 9 at 5. In opposing the 7 current motion, Plaintiff is now able to pursue her claim in this Court. That opportunity 8 does not obviate the statute of limitations issue presented here.
9 “Judicial estoppel is not appropriate merely because a litigant takes inconsistent 10 positions; rather, the inconsistency must be so blatant as to demonstrate that a claimant is 11 playing fast and loose with the courts.” GT Beverage Co. LLC v. Coca Cola Co., 12 No. SACV 10-00209, 2010 WL 11595832, at *3 (C.D. Cal. Aug. 2, 2010). Defendant is 13 not playing “fast and loose with the courts” here. The Montana Court did not have
14 jurisdiction over the case. Any argument that the parties’ made to the Montana Court 15 about the statute of limitations defense could not factor into the Montana Court’s 16 analysis.2 As such, the Court does not perceive any substantive inconsistency between 17
18 2 In addition to the litigant’s assumption of inconsistent positions, a court must accept the litigant’s previous position for judicial estoppel to apply. New Hampshire, 532 U.S. at 750. There is a circuit split 19 on the issue of whether a court must actually adopt an inconsistent position for judicial estoppel to apply: “The majority of circuits recognizing the doctrine hold that it is inapplicable unless the inconsistent 20 statement was actually adopted by the court in the earlier litigation . . . . The minority view, in contrast, holds that the doctrine applies even if the Litigant was unsuccessful in asserting the inconsistent 21 position.” Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 601 (9th Cir. 1996) (citing Yanez v. United States, 989 F.2d 323, 326 (9th Cir. 1993)). Although the Ninth Circuit has yet to expressly adopt either position, id., it has “restricted the application of judicial estoppel to cases where the court 22 1 Defendant’s positions. The first New Hampshire factor therefore weighs against judicial 2 estoppel.
3 Regarding the second New Hampshire factor, Defendant did not have the 4 opportunity to mislead the Montana Court regarding the statute of limitations defense 5 because that question was not before the Montana Court. The Montana Court did not 6 have personal jurisdiction over Defendant. As a result, it could not, and did not, reach 7 statute of limitations issue. Defendant’s position now does not whipsaw the courts. The 8 second factor weighs against judicial estoppel.
9 Finally, as to the third New Hampshire factor, Defendant does not gain an “unfair 10 advantage” over, or impose an “unfair detriment” on, Plaintiff. Defendant’s statements to 11 the Montana Court could not, and did not, change the substantive outcome of the motion 12 before the Montana Court. Because the Montana Court did not have jurisdiction, it either 13 had to (i) dismiss the case, or (ii) transfer the case here. Defendant’s statements to the
14 Montana Court put him in no better of a position there, and Defendant’s statements to the 15 Montana Court put Plaintiff in no worse of a position here. The third factor weighs 16 against judicial estoppel. 17 Plaintiff’s counsel failed to timely serve Defendant. That failure has consequences. 18 Attorneys have a duty to investigate and timely serve process so that this result does not
19 occur. Defendant’s motion for summary judgment must be GRANTED. 20
21 relied on, or ‘accepted,’ the party’s previous inconsistent position.” Hamilton v. State Farm Fire & Cas. 22 Co., 270 F.3d 778, 783 (9th Cir. 2001). 1 Conclusion 2 For the foregoing reasons, the Court ORDERS:
3 (1) Defendant’s motion for summary judgment is GRANTED, and this case is 4 DISMISSED with prejudice. 5 (2) The Clerk is directed to send a copy of this Order to all counsel of record. 6 IT IS SO ORDERED. 7 Dated this 17th day of April, 2023. 8 A 9 Thomas S. Zilly 10 United States District Judge 11 12 13 14 15 16 17 18
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