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Sammamish Pointe Homeowners Association v. Sammamish Pointe L.L.C.3/10/2003
The plaintiff in this lawsuit served each of several out-of-state companies with a 20-day summons instead of the 60-day summons required by Washington's long-arm statute, RCW 4.28.180. The trial court erred in concluding that a misstatement of the proper return period is a defect that necessarily invalidates service. Where the defendant appears and answers and does not show prejudice caused by the inaccurate information, the summons can be amended and the trial court should deny a motion to dismiss. We reverse.
The lawsuit began in 1999, when the Sammamish Pointe Homeowners Association filed a construction defect lawsuit against the appellant developers, who are referred to collectively as 'Polygon'. The Association alleged that Polygon had constructed the condominiums with a defective plumbing system. The Association later amended the complaint to allege defective product claims against several manufacturers of plumbing products. All of these companies were part of the LSP Corporation, respondent in this appeal. The Association caused a summons and complaint to be personally served on each LSP company between September 27 and October 9, 2001. Each summons required the defendant to appear and answer the complaint within 20 days pursuant to Civil Rule 4.
LSP filed a notice of appearance dated October 16. By this time, Polygon had settled with the Homeowners Association and had become the assignee of the Association's claims against the LSP defendants. On October 19, Polygon wrote in a letter to LSP, 'This will serve to confirm that the 20-day deadline for your answer to the complaint in the above referenced matter was due Wednesday, October 17, 2001. If we do not receive your answer by Monday, October 22, 2001, we will file a motion for order of default.' Apparently, counsel for LSP responded that no LSP defendant was a Washington resident. Polygon sent a second letter requesting counsel for LSP to provide the name and address 'of your clients' Washington registered agent or any person or entity authorized to receive service of process in the State of Washington'. Counsel for LSP investigated, and advised counsel for Polygon that his clients did not have registered agents for service in Washington. Polygon did not pursue its threat to file a motion for default.
LSP served Polygon with discovery requests on January 4, 2002 and filed its answer on January 7, approximately 90 days after being served. Among the affirmative defenses alleged in the answer were insufficiency of process, insufficiency of service of process, lack of jurisdiction over defendants, and statute of limitations.
Two weeks later -- on January 23, 2002 -- LSP moved for dismissal under CR 12(b)(4) and (5), based on the use of the 20-day summonses. According to CR 12(b), 'the following defenses may at the option of the pleader be made by motion: (4) insufficiency of process, (5) insufficiency of service of process'. Under the analogous federal rule, a motion under rule 12(b)(4) is the correct procedure with which to raise an objection to the form of the process, while a motion under rule 12(b)(5) is the correct procedure with which to raise an objection to the manner or method of service. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, sec. 1353, at 276-280 (1990). Here it is clear that LSP's true objection was under rule 12(b)(4), to the form of process.
LSP's motion to dismiss, if granted, was potentially fatal to the claims against the LSP defendants because, according to LSP, the statute of limitations had expired on September 14, 2001. Polygon responded with a motion under Civil Rule 4(h) to amend each summons to a 60-day summons. The trial court o
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