Case of the Day: Davis v. Zhou

The 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 bus, injuring Michael Davis. He returned to China. Davis sued Zhou in the District Court three days before the expiration of the three-year statute of limitations. He waited 119 days and then transmitted a request for service to the Chinese central authority under the Service Convention. (Recall that FRCP 4(m), which on its face applies only to service within the United States, gives the plaintiff ninety days to effect service; formerly it gave 120 days, which may account for the plaintiff’s attempt on day 119 rather than, say, day 121).

The question here was the interaction between the statute of limitations, which is part of state law, and Rule 4(m). Under Washington law, the statute of limitations is tolled upon filing of the complaint, but only if the plaintiff then serves process within ninety days. Under Broad v. Mannesmann Anlagenbau, A.G., 10 P.3d 371, 380 (Wash. 2000), the date of transmission to the foreign central authority is deemed to be the date of service. Davis argued that FRCP 4(m) conflicted with and preempted the Washington statute, but the court disagreed. “The Washington statute is not a service-deadline statute. Rather, it establishes when and under what circumstances the statute of limitations is tolled. … Rule 4(m), on the other hand, is a service-deadline rule. Under [the statute of limitations], Washington plaintiffs are not required to serve process within 90 days of filing—if they do not, however, the statute of limitations will not be tolled from the date of filing.”

The moral of the story, of course, is that plaintiffs should make diligent efforts to serve process once they commence actions.

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