Powers v. WB Mobile Servs., Inc.

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               ·FlLE
                          
                  IN CLERKS OFFICE
                                                                           

          ~ COURT, STATE OF WASHING"'IN

           DA'i'E_DEC 1 11!JJ4
          ~~ lu161tt) C} .
          ~ CHIIiF JUSTICE

                                                                                                         ······.r\
                      IN THE SUPREME COURT OF THE STATE OF WASHINGTON


              JESSE POWERS,                          )
                                                     )
                                 Respondent,         )               No. 90133-3
                                                     )
                    v.                               )
                                                     )
              W.B. MOBILE SERVICES, INC., A          )
              Washington Corporation,                )               EnBanc
                                                     )
                                 Petitioner,         )
              and                                    )
                                                     )
              PREMIER COMMUNITIES, INC., a           )
              Washington Corporation; PACIFIC MOBILE )
              STRUCTURES, INC., a Washington         )
              Corporation d/b/a PACIFIC MOBILE;      )
              and JOHN DOE TWO,                      )               Filed       DEC 1 1 2014
                                                                             _ _ _ _ __ _ . . c _ _


                                                     )
                                 Defendants.         )
                                                   ___
                                                     )

                    GONZALEZ, J.--Lawsuits must be initiated within the relevant statute of

              limitations. Generally, plaintiffs need to timely serve only one defendant to toll the

              statute of limitations on their claims. Today, we are asked whether service of process

              on one defendant tolls the statute of limitations as to an unserved and unnamed

              defendant that the plaintiff identified with a placeholder such as "John Doe." We find

              that service of process on one defendant tolls the statute of limitations as to an
                                             
          Powers v. WB. Mobile Services, Inc.; No. 90133-3


          unserved and unnamed defendant if the plaintiff identifies the unnamed defendant

          with reasonable particularity. Here, plaintiff Jesse Powers identified defendant W.B.

          Mobile Services Inc. with such reasonable particularity. We affirm the Court of

              Appeals and remand to the superior court for further proceedings consistent with this

              opmwn.

                                                       FACTS

                      On June 2, 2006, a handicap access ramp platform at a residential construction

              site in Spanaway, Washington, collapsed when Powers used it Powers fell and was

              injured when the platform collapsed.

                      Powers fell while working for Awning Solutions, a company hired by Premier

              Communities Inc. to install an awning on a modular building. Premier also contracted

              with Pacific Mobile Structures Inc. to supply the ramp that collapsed. Unknown to

              Powers, Awning Solutions, or Premier, Pacific had subcontracted with W.B. Mobile

              to install the ramp that collapsed. After falling, Powers "tried to find out exactly who

              put the ramp the together," including making inquiries to Awning Solutions, but

              Awning Solutions thought that Pacific installed the ramp. Clerk's Papers (CP) at 256.

              Premier's sign was displayed at the site.

                      On May 28, 2009, Powers filed a personal injury suit against Premier, Pacific,

              and John Doe One and John Doe Two, identifying "John Doe One" as the "builder of

              the handicap access ramp where the incident occurred." Id. at 186. The statute of

              limitations for Powers's suit expired on June 2, 2009. RCW 4.16.080. Powers timely


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    Powers
               v.                                            
                     WE. Mobile Services, Inc.: No. 90133-3


          served Pacific on June 5, 2009, and Premier on June 12, 2009. 1 Powers, of course, did

          not serve the John Does or W.B. Mobile at thattime.

                 In its answer to Powers's complaint, in July 2009, Pacific indicated that

          Powers's injuries may have been caused "by the negligence or fault of persons or

           entities presently unknown and not a party herein" and that Powers "may have failed

           to join indispensable parties." CP at 331. At that time, Pacific did not disclose that

           W.B. Mobile installed the ramp, but a few days later, on July 28, 2009, Pacific sent

           W.B. Mobile a letter detailing Powers's complaint, including copies of Powers's

           complaint and Pacific's invoices reflecting that W.B. Mobile installed the ramp. The

           owner and sole employee ofW.B. Mobile confirmed that he received the letter

           '"probably a few days"' after July 28, 2009. Id. at 170 (emphasis omitted).

                  In December 2009, Pacific submitted to the trial court a list of "possible

           primary witnesses," which included "Employees of WB Mobile," with the description

           that "[o]ne or more employees ofWB Mobile may be called to testify about the terms

           of the contract between WB Mobile and Pacific Mobile as well as about who installed

           the ramp where the plaintiff alleges failed." Id. at 335 (capitalization omitted), 337.

           Later, during a January 2010 deposition, Powers was informed that Pacific was

           attempting to ascertain who installed the ramp and considering whether W.B. Mobile

           installed the ramp.



           1Although the statute of limitations ran on June 2, 2009, parties have 90 days to serve their
           complaint after filing suit. RCW 4.16.170.


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   Powers
              v.                                           
                    WB. Mobile Services, Inc.; No. 90133-3


                 Finally, over a year after filing his complaint, Powers obtained a discovery

          response from Pacific in October 2010 identifying W.B. Mobile as the installer of the

          ramp. As noted by W.B. Mobile, Powers did not make his discovery requests or

          Pacific's responses part of the record in the trial court, thus we do not know how

          diligent Powers was in pursuing discovery or whether he could have discovered W.B.

          Mobile earlier from Pacific's responses. Suppl. Br. ofPet'r at 13 n.4. Four months

           after Pacific's discovery response, in February 2011, Powers moved to amend his

           pleading to replace John Doe One with "W.B. Mobile." CP at 378.

                  The trial court granted W.B. Mobile's motion to dismiss for failure to bring

           claims within the statute of limitations. 2

                  The Court of Appeals reversed, finding Powers's serving Pacific and Premier

           within ninety days of filing his complaint tolled the statute of limitations on Powers's

           claim against W.B. Mobile, and remanded for a trial on the merits. Powers v. W.B.

           Mobile Servs., Inc., 177 Wn. App. 208, 215, 311 P.3d 58 (2013). The Court of

           Appeals did not reach whether Powers's amended complaint related back to the date

           of his initial complaint under CR 15(c). !d. We granted W.B. Mobile's petition for

           review and now affirm. Powers v. W.B. Mobile Servs., Inc., 180 Wn.2d 1022, 328

           P.Jd 902 (2014).



           2Powers, Premier, and Pacific stipulated that they had reached a settlement, and the trial court
           dismissed Powers's claims against both Premier and Pacific. Neither Premier nor Pacific
           appealed to the Court of Appeals or this court. Powers v. WB. Mobile Servs., Inc., 177 Wn.
           App. 208,212 n.2, 311 P.3d 58 (2013).


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   Powers
               v.                                    
                     WB. Mobile Services, Inc.', No. '90133-3


                                                  ANALYSIS

          A. Standard of review


                 "The standard of review of an order of smmnary judgment is de novo, and the

           appellate court performs the same inquiry as the trial court." Jones v. Allstate Ins.

           Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002) (citing Lybbert v. Grant County, 141

           Wn.2d 29 34, 1 P.3d 1124 (2000)). The court considers facts and inferences in a light
                        3




           most favorable to the nomnoving parties, here Powers. Berrocal v. Fernandez, 155

           Wn.2d 585, 590, 121 P.3d 82 (2005) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437,

           656 P.2d 1030 (1982)).

           B. Reasonable particularity


                  Under RCW 4.16.170, service of process on one defendant tolls the statute of

           limitations as to unserved defendants. Sidis v. Brodie/Dohrmann, Inc., 1J 7 Wn.2d

           325, 329, 815 P.2d 781 (1991). In Sidis, this court observed "that in some cases, if

           identified with reasonable particularity, 'John Doe' defendants may be appropriately

           'named' for purposes of RCW 4.16.170." !d. at 331. This case gives us an

           opportunity to explore our observation in Sidis, and we find it sound and authoritative

           in the case at bar.

                  While we have not had occasion to discuss our observation in Sidis previously,

           our Courts of Appeals have, and we build on the holdings of the Courts of Appeals.

           See, e.g. Bresina v. Ace Paving Co., 89 Wn. App. 277,282,948 P.2d 870 (1997). In
                    3




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    Powers
             '
               v.         .                         
                    WB. Mobile Services, Inc.', No. ·90133-3


            order for a plaintiff to show that an um1amed defendant is identified with reasonable

            particularity, the plaintiff must establish ( 1) (a) from the commencement of the

            statute of limitations, the plaintiff made a diligent effort to identify the actual

            defendant given the information reasonably available to the plaintiff and (b) the

            plaintiff provided information about the unnamed defendant in the complaint to the

            greatest extent possible, including describing the unnamed defendant's acts and

            appearance and (2) the defendant had or should have received such notice of the

            action that it will not be prejudiced in maintaining a defense on the merits at the time

            when the placeholder for the defendant, such as "John Doe" or "ABC Corporation," is

            replaced with the defendant's actual name. The first prong of the reasonable

            particularity standard is satisfied only when the plaintiff shows that it made a

            reasonable effort to identify an unnamed defendant and that actua]ly naming the

            defendant was unreasonably difficult given the information available.

                   If a plaintiff is able to show that the plaintiff identified an unnamed defendant

            with reasonable particularity and tolled the statute of limitations by timely serving at

            least one named defendant, the statute of limitations will be tolled as to claims against

            such unnamed defendant. In that case, the plaintiff may amend its pleading under CR

          - 10(a)(2) to substitute the actual name of the defendant in place of the placeholder for

            such defendant, such as "John Doe" or "ABC Corporation," even after the expiration




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    .         
                                              .                                         
           Powers v. W.B. Mobile Services, Inc.; No. ·90133-3


           of the statute of limitations, without needing to show that such amendment relates

           back to the date of the plaintiffs .original pleading under CR 15(c). 3

                   We find that Powers identified W.B. ]\1obil~ with reasonable particularity and,

           therefore, tolled the statute of limitations by serving Pacific on June 5, 2009, and

           properly substituted W.B; Mobile's name for "John Doe One ... builder of the

           handicap access ramp where the incident occurred" in February 2011. 4

                   Viewing facts and inferences in a light most favorable to Powers, as we must,

           we find that Powers satisfied the first prong of the reasonable particularity standard.

           Powers made a diligent effort to identify and name W.B. Mobile from the

           commencement of the statute of limitations given the information reasonably

           available because from when Powers fell, Powers "tried to find out exactly who put




           3
             We recognize that our holding today is contrary to Kiehn v. Nelsen's Tire Co., 45 Wn. App.
           291, 294-96, 724 P.2d 434 (1986). Kiehn was decided before Sidis and found that a plaintiff
           must satisfy CR 15(c) to amend a pleading to replace a placeholder for an unnamed defendant
           with the defendant's actual name after the expiration of the statute of limitations. I d. Following
           Sidis, as we hold today, if a plaintiff satisfies the reasonable particularity standard and timely
           served at least one named·defendant, the statute of limitations has been tolled as to the unnamed
           defendant and the plaintiff may amend its pleading to replace a placeholder for the unnamed
           defendant with the defendant's actual name without consideration of CR 15(c). Given that CR
           15(c)(2) requires that the defendant "knew or should have known that, but for a mistake
           concerning the identity of the proper party, the action would have been brought against him"
           (emphasis added) and in cases such as this one the plaintiff was "ignorant of the name of the
           defendant" under CR 10( a)(2) (emphasis added), not mistaken, CR 15(c) does not apply to a
           plaintiff's amending a pleading to replace a placeholder for an mmamed defendant with the
           defendant's actual name after the expiration of the statute of limitations. Whether the plaintiff
           has satisfied the reasonable particularity standard is the exclusive inquiry in such cases.
           4
             Powers also argues that he may amend his pleading to name W.B. Mobile in place of John Doe
           One under CR 15(c) and asks us to abandon the "inexcusable neglect" prong of the CR 15(c)
           analysis. W.B. Mobile filed a motion to strike a portion of Powers's brief devoted to that
           argument. Given our holding today, we deny the motion as moot.


                                                            7
                                                   
              Powers v. WB. Mobile Services, Inc.; No. 90133-3


              the ramp the together" and Powers filed a complaint and initiated discovery to

              ascertain more information about the installer of the ramp. CP at 256; RCW 4.16.080.

              Powers provided information about W.B. Mobile in his complaint to the greatest

              extent possible by describing W.B. Mobile as "John Doe One ... builder of the

              handicap access ramp where the incident occurred." CP at 186. Powers's actually

              naming W.B. Mobile in his complaint was unreasonably difficult given the

              information available because Powers's attempts to ascertain the identity ofW.B.

              Mobile were stymied by inaccurate information from his employer and the lack of an

              available record showing who installed the ramp. Given the record available and

              viewing facts and inferences in a light most favorable to Powers, Powers satisfied the

              first prong of the reasonable particularity standard, but this is a close call, and such

              finding is the outer extreme of what may satisfY the first prong of the reasonable

              particularity standard.

                      W.B. Mobile received sufficient notice to ensure that it is not prejudiced in

              maintaining its defense on the merits, satisfying the second prong of the reasonable

              particularity standard. The owner and sole employee ofW.B. Mobile received a copy

              of Powers's complaint andPacific's invoices reflecting that W.B. Mobile installed the

              ramp at issue a few days after July 28, 2009, well within the ninety days required for

              service after Powers filed his complaint on May 28, 2009. See RCW 4.16.170. W.B.

              Mobile received actual notice of Powers's claim in a timely manner, which satisfies

              the second prong of the reasonable particularity standard.


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    .                               .
                                                
          Powers v. W.B. Mobile Services, Inc.; No.'90133~3


                                                 CONCLUSION

                   We affirm the Court of Appeals and find that Powers identified W.B. Mobile

          with reasonable particularity. We remand to the superior court for further proceedings

           consistent with this opinion.




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    .        
                                             .                          
          Powers v. WB. Mobile Services, Ino.,'No. 90133--3




          WE CONCUR:




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