Case of the Day: Davis v. Zhou Liang

The case of the day is Davis v. Zhou Liang (W.D. Wash. 2018). Michael Davis was a passenger on a bus in Washington and was injured in an accident in which Zhou Liang, a resident of China, allegedly was at fault. According to an earlier order, Davis first sued Liang in the state court, and Liang defended the case through counsel, seeking dismissal on grounds of insufficient service of process. Davis had tried to serve process via the Chinese central authority, but it had rejected his requests “due to being ‘incomplete in one way or another.’” Davis then voluntarily dismissed the action and brought a second action in the federal court. Davis send a request for waiver of service to Liang’s US counsel, but Liang refused to waive service. More than ninety days after commencement of the action, Davis sent the papers to the Chinese central authority for service, and some months later, the Central Authority acknowledged receipt orally and told Davis that the documents were “on the way to the Defendant,” though the Central Authority later “rescinded its acknowledgment of receipt.” Davis unsuccessfully sought entry of default judgment under Article 15 of the Convention.

After some additional attempts at service, Davis renewed his motion for entry of default judgment. Liang’s insurer, Empire Fire & Marine Insurance Co., moved for leave to intervene to oppose the motion. The court granted the motion to intervene.

Washington has a statute that provides that a statute of limitations is tolled by the filing of a complaint, but only if service is made within ninety days of commencement of the action. If “service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.” The Washington courts have made an exception in Hague Service Convention cases, but only if the papers are transmitted to the foreign central authority within ninety days. That didn’t happen here, and therefore the court denied the motion for default judgment and dismissed the action with prejudice.

You have to wonder what went wrong here. Long-time readers know that I’m generally in favor of lawyers “doing it themselves” when it comes to service, and I’ve pointed to a number of cases where service of process vendors screw things up. Here, though, it seems that the plaintiff’s lawyers did it themselves but still got it wrong. Why not at least transmit the papers to the Chinese central authority immediately upon filing the complaint? Since there was a US lawyer in the picture (who represented Liang in the abortive state court case), why not seek leave to serve by alternate means on the US lawyer, if service via the Central Authority didn’t seem likely to succeed?

3 responses to “Case of the Day: Davis v. Zhou Liang”

  1. An interesting Erie conflict there—FRCP 4(m) would clearly govern whether the initiation of service was timely (i.e., no specific deadline, but a reasonable diligence standard). But if the state statute of limitation requires a hard 90-day deadline, there’s a problem. I see an equal protection argument brewing …

    1. The Ninth Circuit has a recent decision that addresses the state/federal interplay, though not in the terms you suggest. Whidbee v. Pierce County, 857 F.3d 1019 (9th Cir. 2017). Whidbee is a removal case; I am not sure whether there is a Ninth Circuit case that arises when the case was brought in the district court in the first instance.

  2. […] case of the day is Davis v. Zhou (9th Cir. 2019). I covered the case in November 2018. Zhou Liang, a Chinese national, was driving a rental car in Seattle when he collided with a city […]

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