Whidbee v. Pierce County

If the statute of limitations expires before a case is removed to federal court, the plaintiff is not given additional time to serve the summons after removal.  Under 28 USC 1448 and FRCivP 4(m), in a case removed to federal court, a plaintiff has a new 120 day period after removal in which to serve the summons and complaint on previously unserved defendants.  However, if the statute of limitations period has expired before removal due to a failure to timely serve a defendant, service of the summons after removal does not revive the suit.  Washington state law governed the limitations period in this case alleging federal Civil Rights Act and negligence claims.  Under state law, if the plaintiff did not serve the complaint within 90 days of filing the complaint and the statute of limitations expired during that period, the suit was time-barred.  Here plaintiff made ineffective attempts at service, then after the 90 day period had expired, the defendant removed the suit to federal court.  Held, plaintiff’s post-removal service of the summons and complaint did not revive his suit which had become time-barred before removal.

Ninth Circuit Court of Appeals (Ikuta, J.); May 26, 2017; 2017 WL 2294761


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