In Washington, a party does not have to actually file a complaint in Superior Court to start a lawsuit and trigger the time period within which the defendant must respond.[1] Instead, a party can commence a lawsuit by serving a complaint and summons on the defendant.[2] This process is commonly called “pocket service.” It is different from the procedure in federal court and most state courts, where a party must file a complaint in court to commence a lawsuit.[3]
Pocket service can be a useful tool for plaintiffs. Because the complaint is not filed, it is not in the public record. Thus, plaintiffs seeking an early resolution to their dispute while keeping the matter private may want to utilize pocket service and engage in early settlement discussions.
For defendants represented by counsel or otherwise familiar with local legal procedural rules, pocket service does not raise potential due process concerns.[4] For other defendants, however, pocket service can cause confusion. The complaint does not have any court-file stamp on it or case number. A defendant therefore may think the complaint is “unofficial” and has not triggered the running of any deadline to respond. However, the 20-day response deadline applies even if the complaint has not been filed in court.[5] Thus, defendants, believing the documents are a sham or are preliminary and thus do not need a response, might fail to respond within 20 days—and thus missing the deadline by which plaintiff can seek entry of a default upon filing of the complaint.
While Washington’s Civil Rules suggest that pocket service is available in all civil proceedings in Washington Superior Court except for certain domestic relations actions, this is no longer the case. Last year, the Washington State Legislature determined that pocket service could unfairly impact defendants who may be subject to legal proceedings by collection agencies seeking to collect on an alleged debt.[6] As a result, the Legislature amended RCW 19.16.250 to prohibit pocket service of a summons and complaint by a collection agency.[7] Not only is pocket service unavailable to collection agencies licensed under RCW 19.16 et seq., but collection agencies who attempt to do so could face potential liability for a statutory violation.
Whether the Washington Legislature will continue to carve back the scope of pocket service based upon the type of plaintiff or proceeding at issue remains to be seen. What the amendment to RCW 19.16.250 does show, however, is the importance of being attuned to the statutory schemes that govern your client. What may be a productive strategy for one client may invite risk for another.
[1] See CR 3.
[2] Id.
[3] See e.g. Fed. R. Civ. P. R. 3.
[4] RCW 19.16.250, Findings—Intent—2019 c 201 (1).
[5] See CR 4(a)(2) (note: the defendant gets 60-days to respond if they are out of state per RCW 4.28.185); CR 55(a).
[6] Id.
[7] RCW 19.16.250(27).
Brandi B. Balanda
Brandi has wide-ranging experience successfully litigating large, complex cases, from defending a senior executive against the largest trade secret claim asserted in Washington to prosecuting fraud, contract, and fiduciary duty claims related to the financing of major real estate development projects.