Jonathan & Jane Doe Richmond, Apps. v. Gail Diamond, Resp. ( 2014 )


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    20mHAR 10 AK9--52
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    GAIL K. DIAMOND,                                NO. 69400-6-1
    Respondent,                DIVISION ONE
    v.
    JONATHAN RICHMOND,                              UNPUBLISHED OPINION
    Appellant.                  FILED: March 10, 2014
    Lau, J. —This case involves substitute service of process under the nonresident
    motorist statute, RCW 46.64.040. Jonathan Richmond appeals the trial court's denial of
    his motion to dismiss Gail Diamond's personal injury lawsuit for lack of personal
    jurisdiction. He contends Diamond (1) failed to exercise due diligence to identify his
    addresses and to attempt personal service of the summons or process at all those
    addresses as required under the nonresident motorist statute and (2) failed to send to
    him at his last known address the notice of service on the secretary of state and other
    documents required by the statute. Richmond also claims Diamond failed to meet
    several additional statutory requirements. Because no material fact issues exist that
    under RCW 46.64.040's requirements Diamond failed to exercise due diligence to
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    identify Richmond's addresses, to attempt personal service at those addresses, and to
    send notice and other required documents to his last known address, the trial court
    lacked personal jurisdiction as a matter of law. We reverse and remand with
    instructions to dismiss this lawsuit with prejudice.
    FACTS
    On July 15, 2008, Richmond's rental vehicle struck Diamond's vehicle, causing
    property damage and personal injuries. Richmond's passenger, Umesh Phuyal,
    sustained no injuries. Richmond and Diamond exchanged e-mail addresses. A police
    officer witnessed the accident, investigated, issued a traffic infraction notice to
    Richmond for improper lane travel and driving without vehicle insurance, and later
    prepared a traffic accident collision report. Richmond presented a California driver's
    license bearing a California address to the police officer. The officer recorded the
    California address on the accident report and traffic infraction notice.1
    Richmond is a citizen of the United Kingdom. At the time of the accident, he
    lived and worked in the Republic of Mauritius, an island country in the Indian Ocean.
    He has never been a Washington resident. He stayed with friends living at the
    California address from time to time. The accident report lists Richmond's
    Massachusetts telephone number with a 617 area code, date of birth, and the rental
    1 In his July 31, 2012 declaration, Richmond explained why the police report
    contained the California address:
    I did not give false information to the police investigating the July 16, 2008
    collision. I did not tell the police or anyone else that I resided in California at the
    time of that collision. I assume the California address appears on the police
    report because it was on my driver's license, and that the reporting officer simply
    copied the address. The officer did not ask me where I resided at the time.
    Diamond submitted no evidence to rebut this explanation.
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    vehicle company, Fox Rent-A-Car in SeaTac. The accident report also identifies
    Umesh Phuyal, by name, address, telephone number, and date of birth.
    At the accident scene, Richmond told Diamond that he lived in Mauritius, not at
    the address listed on his California driver's license. When he called her later to see how
    she was doing, he told her again that he lived in Mauritius. He also told her he was
    returning to Mauritius and gave her his telephone number. Diamond acknowledged
    talking with Richmond at the accident scene and on the telephone in 2008. She
    testified in her declaration, "From my conversations with Mr. Richmond, I understood
    that Mr. Richmond did not live within the United States but that he lived in a foreign
    country at the time of the collision" and "I seem to remember that he had a job in
    Mauritius . . . ." In an e-mail exchange with Richmond soon after the accident, she
    acknowledged that Mauritius was Richmond's "home" and that he gave her a telephone
    number where he could be reached, "(617) 395-4360."2 She knew the number "is
    associated with telephones located in the Boston, Massachusetts area." This is the
    same telephone number listed on the accident report.
    In responding to the traffic infraction notice, Richmond requested a mitigation
    hearing. He wrote on the back of the notice his full name, including middle initials,
    Mauritius residence address, two telephone numbers (the 617 Massachusetts area
    code number noted above and a 230 Mauritius country code number), and his e-mail
    address.3 Next to the Massachusetts number he wrote "US msg" indicating a United
    2This United States telephone number "rings at [Richmond's] home."
    3 Richmond wrote in this contact information under the preprinted section
    entitled, "My mailing address is . . .."
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    69400-6-1/4
    States message contact number. Next to the Mauritius number he wrote "cell." He
    mailed the hearing request to SeaTac Municipal Court. In subsequent correspondence
    with the court about the mitigation hearing, Richmond provided his job title and
    Mauritius address, telephone numbers, and his e-mail address.
    Richmond also corresponded by e-mail with Diamond's insurer, Progressive
    Insurance, and Fox Rent-A-Car over liability and coverage issues while he lived in
    Mauritius. He advised both companies of his residence in Mauritius, employer, job title,
    employment address, Massachusetts and Mauritius telephone numbers, e-mail
    address, and business web site address4 Diamond's attorney, Mark Anderson, had a
    copy of Richmond's Fox Rent-A-Car contract. The contract identified the renter as
    "Jonathan Richmond" with California driver's license number C2632939 and expiration
    date of January 19, 2012.
    Richmond's resume was available on the Internet during the limitations period. It
    is currently the third item that appears when his name is entered into the Google search
    engine.5 Richmond's resume lists a Massachusetts address where he received mail
    and a Bangladesh address where he lived when the lawsuit commenced. It also lists
    the same Massachusetts telephone number and e-mail he used and provided to
    Diamond, Progressive, Fox Rent-A-Car, SeaTac Municipal Court, and the investigating
    police officer (telephone only). The resume also shows his business web site
    4According to his biographical note (searchable on Google), Richmond is a
    noted national urban transportation expert.
    5As noted above, his complete name, including middle initials and date of birth,
    are contained in the traffic infraction notice and accident report.
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    address—the same web address he provided to Progressive and Fox Rent-A-Car
    representatives.
    Three years after the accident, on July 11, 2011, Diamond filed this personal
    injury lawsuit, alleging negligence and seeking damages for medical expenses and lost
    wages. By that time, Richmond was living in Bangladesh. Under RCW 4.16.170's
    90-day tolling period, Diamond had until October 9, 2011, to effect proper service of
    process without violating the three-year statute of limitations.
    On September 9, 2011, attorney Anderson sought and obtained an order from
    the superior court permitting service of process by publication under RCW 4.28.100
    and .110. To the motion for publication, Anderson attached his declaration stating that
    he "researched internet telephone directories," "conducted online search using the
    Accurint legal databases," and "contacted the Department of Homeland Security" in an
    effort to locate Richmond for personal service or service by mail, but he was
    unsuccessful. Anderson's declaration also stated:
    The police report that was generated in this personal injury matter in July 2008
    did contain an address and other contact information for defendant Jonathan
    Richmond. However, the results of my research indicate that defendant probably
    provided a falsified address and other contact information, in that I could not
    confirm that a Jonathan Richmond ever used that address in the past or was
    associated with the telephone number given. As such, I do not know defendants'
    address.
    The declaration lacks any factual details to support Anderson's conclusion that
    Richmond likely provided a false address and contact information. Diamond never
    published the required notice.
    Diamond hired a professional process server to serve Richmond at the California
    address listed on the accident report. When the process server attempted service on
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    September 17, someone at the house told him that Richmond was not in "and will not
    be there for weeks." (Capitalization omitted.) Between September 24 and October 2,
    the process server attempted to serve Richmond at the California address five more
    times without success.
    On October 5, 4 days before the 90-day tolling period's expiration, attorney
    Anderson talked to Richmond by telephone. Richmond declined to disclose his location
    but indicated that he had lived in Mauritius, Bangladesh, and Vietnam since the
    accident.6 He told Anderson that he planned to be in California "sometime in the
    upcoming weeks" and then visit family in London for the holidays "and then return to
    Vietnam in January or February of 2012." After the telephone conversation ended,
    Anderson dialed *69 and learned that Richmond had called him from a Boston,
    Massachusetts number with a 617 area code. No evidence in the record indicates
    Anderson followed up on that information.
    On October 6, Diamond served the Washington secretary of state under
    Washington's nonresident motorist statute, RCW 46.64.040, asserting that after a
    diligent search, she was unable to locate Richmond for personal service. In the affidavit
    of attempted service, attorney Anderson stated that he tried to locate Richmond by
    researching Internet telephone directories, conducting an on-line search using the
    Accurintlegal databases, and contacting the Department of Homeland Security. In the
    6 In his declaration, Anderson stated specifically: "Mr. Richmond told me that,
    after his job in Mauritius ended in 2008, he tried to get work in the United States, but
    was unsuccessful. Mr. Richmond was out of work for eight months before he moved to
    Bangladesh, where he lived and worked until leaving in December 2010. He told me
    that he then went on a lecture tour in the United States in March and April of 2011 and
    then went back to Asia, and was negotiating a contract for work in Vietnam."
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    affidavit of compliance, Anderson stated that he "served a true and correct copy of the
    Summons & Complaint in this action, accompanied by the appropriate fee, upon the
    Washington Secretary of State
    On July 31, 2012, Richmond moved to dismiss Diamond's lawsuit for lack of
    personal jurisdiction under CR 12(h) and CR 56(c). He argued that Diamond failed to
    comply with RCW 46.64.040's requirements because (1) she failed to send two copies
    of the required documentation to the secretary of state and did not prove by affidavit
    that such copies were sent, (2) she failed to prove payment of the required fee to the
    secretary of state, and (3) she failed to use due diligence to personally serve Richmond
    or locate his last known address. In response, attorney Anderson provided a statement
    from the secretary of state indicating that the secretary received "Summons/Complaint
    and other legal documents" and then sent a "duplicated copy" by certified mail to
    Richmond at an unspecified "last known address as supplied by the plaintiff." Anderson
    also filed with the trial court, and allegedly mailed to the California address, a notice of
    service to nonresident motorist stating that counsel left two copies of the summons and
    complaint with the secretary. Also in response to Richmond's motion to dismiss,
    Anderson served an amended affidavit of compliance stating that he left "two true and
    correct copies of the Summons & Complaint in this action, accompanied by a check in
    the amount of $50.00 as the appropriate fee established by the Washington Secretary
    of State by rule . . . ," with the secretary.
    The matter was initially heard on August 31, 2012. The court ordered
    supplemental briefing regarding whether filing an amended affidavit of compliance cures
    alleged defects in the original affidavit. The parties submitted additional briefing. On
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    September 14, the trial court denied Richmond's motion to dismiss. We granted his
    petition for discretionary review.
    ANALYSIS
    Richmond contends the trial court erred when it denied his motion because
    Diamond failed to effect substitute service under RCW 46.64.040, the nonresident
    motorist statute.
    Personal Jurisdiction and the Nonresident Motorist Statute (RCW 46.64.040)
    "First and basic to personal jurisdiction is service of process."7 Pascua v. Heil.
    
    126 Wash. App. 520
    , 526, 
    108 P.3d 1253
    (2005); see also Woodruff v. Spence. 76 Wn.
    App. 207, 209-10, 
    883 P.2d 936
    (1994). Plaintiff carries the initial burden to make a
    prima facie showing of proper service of process. Witt v. Port of Olympia, 
    126 Wash. App. 752
    , 757, 
    109 P.3d 489
    (2005). Though personal service of a summons is preferred,
    the nonresident motorist statute permits substitute service on the secretary of state
    where the defendant is a nonresident or a resident who has left the state. RCW
    46.64.040 provides in relevant part:
    Service of such summons or process shall be made by leaving two copies
    thereof with a fee established by the secretary of state by rule with the secretary
    of state of the state of Washington, or at the secretary of state's office, and such
    service shall be sufficient and valid personal service upon said resident or
    nonresident: PROVIDED. That notice of such service and a copy of the
    summons or process is forthwith sent by registered mail with return receipt
    reguested. by plaintiff to the defendant at the last known address of the said
    defendant, and the plaintiffs affidavit of compliance herewith are appended to the
    7 Due process requires "'notice reasonably calculated, under all the
    circumstances, to apprise interested parties of the pendency of the action and afford
    them an opportunity to present their objections.'" Martin v. Meier. 
    111 Wash. 2d 471
    , 477-
    78, 
    760 P.2d 925
    (1988) (quoting Mullane v. Cent. Hanover Bank & Trust Co.. 
    339 U.S. 306
    , 314, 
    70 S. Ct. 652
    , 
    94 L. Ed. 865
    (1950)).
    -8-
    69400-6-1/9
    process, together with the affidavit of the plaintiff's attorney that the attorney has
    with due diligence attempted to serve personal process upon the defendant at all
    addresses known to him or her of defendant and further listing in his or her
    affidavit the addresses at which he or she attempted to have process served.
    However, if process is forwarded by registered mail and defendant's endorsed
    receipt is received and entered as a part of the return of process then the
    foregoing affidavit of plaintiff's attorney need only show that the defendant
    received personal delivery by mail: PROVIDED FURTHER, That personal
    service outside of this state in accordance with the provisions of law relating to
    personal service of summons outside of this state shall relieve the plaintiff from
    mailing a copy of the summons or process by registered mail as hereinbefore
    provided. The secretary of state shall forthwith send one of such copies by mail,
    postage prepaid, addressed to the defendant at the defendant's address, if
    known to the secretary of state.
    (Emphasis added.) A plaintiff's failure to adhere to the statute's procedures for notifying
    the defendant that process has been served on the secretary renders service on the
    secretary a nullity. Omaits v. Raber. 
    56 Wash. App. 668
    , 670, 
    785 P.2d 462
    (1990).
    Washington courts require a plaintiff to comply with the statute's four-step
    requirements:
    (1) deliver two copies of the summons to the Secretary of State with the required
    fee; (2) either personally serve the defendant with a copy of the summons and
    notice of service on the Secretary or send the same documents by registered
    mail, return receipt requested, to the defendant's last known address; (3) file an
    affidavit of compliance with the court; and (4) if the defendant was served by
    registered mail, file an affidavit of due diligence with the court.
    Clay v. Portik. 
    84 Wash. App. 553
    , 559, 
    929 P.2d 1132
    (1997). Although Clay's
    formulation references only filing the required affidavits with the court, the statute also
    expressly requires the plaintiff to mail the defendant copies of the affidavits of
    compliance and due diligence. RCW 46.64.040; Keithlv v. Sanders. 
    170 Wash. App. 683
    ,
    688-90, 
    285 P.3d 225
    (2012). "As a general rule, statutes providing for constructive or
    substituted service must be strictly construed as in derogation of the common law."
    Martin v. Meier, 
    111 Wash. 2d 471
    , 479, 
    760 P.2d 925
    (1988). RCW 46.64.040 is such a
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    69400-6-1/10
    statute and "its procedures must be strictly adhered to, otherwise jurisdiction is not
    obtained under this statute." 
    Meier. 111 Wash. 2d at 479
    . The procedures under the
    statute satisfy due process requirements. 
    Meier. 111 Wash. 2d at 476
    .
    In sum, service under the statute is effected by leaving two copies of the
    summons or process, with the appropriate fee, with the secretary of state accompanied
    by (1) plaintiff's affidavit that notice of service and a copy of the summons or process
    have been sent by registered mail with return receipt requested to defendant at the last
    known address of the defendant and (2) an affidavit of the plaintiff's attorney that the
    attorney with due diligence attempted to serve personal process on the defendant at all
    known addresses and list them or attach defendant's signed return receipt. Richmond
    contends the trial court lacked personal jurisdiction over him because service on the
    secretary was defective as a matter of law. He challenges personal jurisdiction on two
    grounds: (1) Diamond failed to exercise due diligence as required under the statute to
    attempt personal service at all known addresses and further failed to send the required
    documents to his last known address because the California address was not a "last
    known address" and (2) the affidavit of compliance was deficient because it failed to
    state that two copies of the summons or process were delivered to the secretary of state
    and failed to indicate the amount of the fee Diamond paid.8
    Due Diligence
    While failure to strictly comply with any of RCW 46.64.040's requirements divests
    the court of personal jurisdiction over a defendant, the dispositive question here is
    8 Diamond does not contend she effected service of process on Richmond by
    any method other than substitute service on the secretary of state under RCW
    46.64.040.
    -10-
    69400-6-1/11
    whether Diamond exercised due diligence to locate Richmond's addresses and attempt
    personal service of the summons or process at all those addresses and, finally, to send
    by registered mail to the last known address the mandatory documents specified in the
    statute before the 90-day tolling period expired. Richmond contends that Diamond
    failed to exercise due diligence to identify Mr. Richmond's addresses and to
    attempt personal service of the summons or process at all those addresses, and
    failed to send him at all those addresses by registered mail the notice of service
    on the Secretary, the summons or process, the affidavit of compliance, and the
    affidavit of due diligence.
    Br. of Pet'rat19.
    Due diligence is required prior to service under the nonresident motorist statute.
    
    Meier. 111 Wash. 2d at 481
    . We focus on what reasonable steps the plaintiff took in light
    of what he or she knew, not on what other steps were possible. Carras v. Johnson. 
    77 Wash. App. 588
    , 593, 
    892 P.2d 780
    (1995). Due diligence requires that the plaintiff make
    "honest and reasonable efforts to locate the defendant," but it does not require the
    plaintiff to use "all conceivable means" to find him or her. 
    Meier. 111 Wash. 2d at 482
    .
    Nevertheless, a plaintiff must follow up on information that might reasonably assist him
    or her in finding the defendant. For example, if an accident report is made, it must be
    examined and the information therein investigated. 
    Meier. 111 Wash. 2d at 482
    . Further,
    "[rjeasonable diligence requires contacting known third parties who may have
    knowledge of the defendant's whereabouts." 
    Pascua. 126 Wash. App. at 529
    (despite the
    fact that plaintiff had the contact information of an individual who likely knew the
    defendants' addresses, plaintiff failed to seek the addresses before applying for service
    by publication; court concluded plaintiff failed to make the honest and reasonable efforts
    required for such service).
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    69400-6-1/12
    Although due diligence is normally a fact question reserved for the trier of fact, if
    the factual issues are undisputed, the question is one of law for the court. 
    Carras. 77 Wash. App. at 593
    ; Martin v. Triol. 
    121 Wash. 2d 135
    , 151, 
    847 P.2d 471
    (1993). Here, the
    facts are undisputed. We thus determine whether the undisputed facts justify the
    conclusion of due diligence as a matter of law. Several Washington cases control.
    In Meier, the plaintiff attempted to serve the defendant at a Washington address
    listed on the accident report, but "[ujnknown to plaintiff, that address was, in fact,
    defendant's parents' address." 
    Meier. 111 Wash. 2d at 473
    . Affidavits supporting plaintiffs
    motion for substitute service under RCW 46.64.040 established that plaintiff's attorney
    asked defendant's former neighbors and his former university about his whereabouts.
    
    Meier. 111 Wash. 2d at 474-75
    . Neighbors told the attorney that defendant had moved to
    California. 
    Meier. 111 Wash. 2d at 474-75
    . Affidavits also established that plaintiff's
    process server checked with the police department, questioned neighbors, and checked
    the King County directory in an attempt to locate defendant, but found no listing in
    telephone and police records. 
    Meier, 111 Wash. 2d at 475
    . The court found that Meier's
    efforts constituted due diligence. 
    Meier. 111 Wash. 2d at 482
    -83. Accordingly, the court
    found service under the nonresident motorist statute appropriate. 
    Meier. 111 Wash. 2d at 483
    . Importantly, the court noted, "Nothing in the record suggests that plaintiff had
    other information available which should have been investigated with reasonable effort."
    
    Meier. 111 Wash. 2d at 483
    (emphasis added).
    In Triol. the court addressed whether plaintiffs acted in good faith and exercised
    due diligence in attempting to personally serve defendants before resorting to
    substituted service under RCW 46.64.040. 
    Triol. 121 Wash. 2d at 150
    . There, plaintiffs
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    69400-6-1/13
    began a series of personal service attempts five days before the service of process
    period expired. 
    Triol. 121 Wash. 2d at 150
    . The plaintiffs' process server located the
    defendants' Seattle residence, but could not locate the defendants.9 
    Triol, 121 Wash. 2d at 150
    . Neighbors provided no information on the defendants' whereabouts. 
    Triol. 121 Wash. 2d at 150
    . The plaintiff accordingly served the secretary of state under RCW
    46.64.040. 
    Triol, 121 Wash. 2d at 150
    . Our Supreme Court concluded that the statute
    applied based on defendants' temporary absence from the state while on vacation. It
    further concluded plaintiff exercised due diligence in searching for them: "[Plaintiffs']
    inability to personally serve [defendants] was not because of a lack of diligence, but was
    because the [defendants] were away from home on a boat sailing into Canadian
    waters." 
    Triol, 121 Wash. 2d at 150
    .
    In Carras. the plaintiff's efforts, which consisted of hiring a professional process
    server and relying on the accident report for defendants' addresses in the absence of
    other information, "while certainly not exhaustive, were both honest and reasonable,"
    and satisfied the statute. 
    Carras, 77 Wash. App. at 594
    .
    Cases analyzing due diligence in the context of service by publication under
    RCW 4.28.100 are also persuasive.10 In Parkash v. Perry, 
    40 Wash. App. 849
    , 
    700 P.2d 9While
    RCW 46.64.040 originally applied only to nonresident motorists, the
    statute applies to Washington residents who are involved in a motor vehicle accident
    and thereafter leave the state. 
    Meier. 111 Wash. 2d at 476
    .
    10 Washington courts have applied case authority describing due diligence in the
    service by publication context to the nonresident motorist statute context, and vice
    versa. 
    Meier. 111 Wash. 2d at 481
    -82 (using due diligence analysis from publication
    context when describing plaintiff's duty under nonresident motorist statute); 
    Pascua. 126 Wash. App. at 529
    (using due diligence analysis from nonresident motorist case when
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    1201 (1985), Parkash filed a complaint against Perry for personal injuries suffered in
    Kennewick, Washington. 
    Parkash. 40 Wash. App. at 850
    . Parkash's process server
    stated in his return of service that he was unable to find Perry after due and diligent
    search and inquiry. 
    Parkash. 40 Wash. App. at 850
    . The return of service also contained
    the process server's note indicating he questioned a neighbor who thought Perry "'had
    moved to somewhere in the vicinity [sic] of 4th and Olympia in Kennewick.'" 
    Parkash. 40 Wash. App. at 850
    (alteration in original). The court authorized service by publication
    under RCW 4.28.100 based on Parkash's attorney's affidavit stating that Perry was not
    a resident of the state and after due diligence could not be found within the state.
    
    Parkash, 40 Wash. App. at 850-51
    . "Due diligence, as stated in the affidavit, consisted of
    a search of the telephone information listing for the Tri-Cities and the not found return of
    the process server." 
    Parkash. 40 Wash. App. at 851
    .
    Perry moved to dismiss for lack of jurisdiction based on improper service of
    process. 
    Parkash. 40 Wash. App. at 851
    . She submitted an affidavit stating:
    [A]t the time of the accident, she resided at 1101 East Seventh Avenue in
    Kennewick; her driver's license listed her parents' Kennewick address; several
    months after the accident she moved to her parents' home and lived with them
    until she was married on November 14, 1981; and after her marriage she moved
    to an apartment at 200 South Union in Kennewick where she presently resides.
    Miss Perry further stated she had been employed as a hairdresser at Pacesetters
    in Kennewick from 1974 until August 1982 when she became employed by
    Images in Kennewick; also her parents' address was on her bank checking
    account. Finally, Miss Perry stated that no one representing Mr. Parkash had
    ever attempted to contact her either at home or at her place of work nor had she
    ever received any correspondence from Mr. Parkash, his attorney or anyone else
    representing him.
    describing plaintiff's duty under service by publication statute). The standard for due
    diligence is identical for these two statutes.
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    Parkash. 40 Wash. App. at 851
    -52. Perry alleged that Parkash's attorney's affidavit was
    fatally deficient under RCW 4.28.100 for failing to state that (1) Perry departed from the
    state with intent to avoid service of a summons or kept herself concealed with the same
    intent and (2) a copy of the summons and complaint had been mailed to her at her
    place of residence as required by statute. 
    Parkash. 40 Wash. App. at 852
    .
    Parkash's attorney moved to amend his original affidavit to add that Perry's
    insurance adjuster informed him that Perry may have left the state and that Perry had
    departed the state or kept herself concealed to avoid service of summons. 
    Parkash. 40 Wash. App. at 852
    . The trial court denied his motion and dismissed Parkash's complaint.
    
    Parkash, 40 Wash. App. at 852
    . Division Two of this court affirmed on several grounds
    relevant to the present case:
    Here, the affidavit on which the court authorized service by publication did not
    comply with RCW 4.28.100. Mr. Parkash's attempt to amend the affidavit nunc
    pro tunc must fail because the record at the time of the proposed amendment
    shows Miss Perry resided in Kennewick and at no time sought to conceal her
    residence. Consequently, the motion was properly denied. The original affidavit
    being defective, the service by publication was likewise defective.
    Mr. Parkash's contention Miss Perry is estopped from asserting the statute
    of limitation because of the misleading statements of the insurance adjuster
    likewise is rejected. Mr. Parkash's affidavit Quotes the adjuster as saving Miss
    Perry "may" have departed the state. This statement was only an indication the
    adjuster did not know the whereabouts of Miss Perry. Conseguently. Mr.
    Parkash's reliance on the adjuster's statement, was misplaced.
    Moreover, the affidavits in the record raise a Question concerning the
    diligence with which the process server and Mr. Parkash sought to locate Miss
    Perry. None of the affidavits indicate the accident report was checked by the
    process server or Mr. Parkash. The report disclosed where Miss Perry was
    working at the time of the accident and inquiry there may have shown her current
    employment. The affidavits do not show an effort was made to contact any
    hairdressing establishment in Kennewick to locate Miss Perry—yet the accident
    report shows she was a hairdresser at Pacesetters in Kennewick. Nor is there
    any showing the neighbor's statement Miss Perry had moved to the vicinity of
    Fourth and Olympia streets, appended as a note to the return of service, was
    investigated. A mere search of the telephone listings and an attempt to serve
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    69400-6-1/16
    Miss Perry at her old residence, in light of the facts revealed by this record, is an
    inadeguate showing of due diligence to support service by publication in any
    event; dismissal was proper.
    
    Parkash. 40 Wash. App. at 853-54
    (emphasis added).
    In Pascua. before serving the defendant by publication under RCW 4.28.100, the
    plaintiff attempted to locate the defendant via the telephone number and address listed
    in the police report, contacted the apartment manager at that address, and conducted
    searches using a public records index, a phone directory, and Internet search engines.
    
    Pascua, 126 Wash. App. at 529
    . Despite these efforts, Division Two of this court
    concluded the plaintiff failed to exercise due diligence in locating the defendant:
    While these efforts might generally be considered sufficient, they are not here.
    What [plaintiff] did not do was attempt to locate [defendant] through contacting
    Charles, the registered owner of the vehicle [defendant] was driving at the time of
    the accident. Charles's contact information was in the police report. While "Mot
    all conceivable means need be employed. ... the accident report, if made, must
    be examined and the information therein investigated with reasonable effort."
    Reasonable diligence reguires contacting known third parties who may have
    knowledge of the defendant's whereabouts. ... Once [plaintiffs] other efforts
    were unsuccessful, it was unreasonable not to contact Charles to see whether he
    knew and would provide [defendant's] current location ....
    
    Pascua. 126 Wash. App. at 529
    -30 (emphasis added) (internal citations omitted).
    In Boes v. Bisiar. 
    122 Wash. App. 569
    , 
    94 P.3d 975
    (2004), the plaintiff
    unsuccessfully attempted service through a process server at the address listed for the
    defendant on the accident report. 
    Boes. 122 Wash. App. at 572
    . Plaintiff's attorney then
    checked telephone directories, did an internet search, and hired a private investigator to
    check police, utility, and voting records, all to no avail. 
    Boes. 122 Wash. App. at 572
    .
    Plaintiff's attorney also attempted service at the home of defendant's distant relative and
    at the address listed on the registration for the vehicle the defendant was driving at the
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    time of the accident. 
    Boes. 122 Wash. App. at 572
    -73. Defendant argued that plaintiff's
    failure to follow up on information known to her (namely her failure to check the county
    tax rolls) showed lack of due diligence. 
    Boes. 122 Wash. App. at 575-76
    . Division Three
    of this court held, "'[A] mere search of the telephone listings and an attempt to serve
    Miss Perry at her old residence, in light of the facts revealed by this record' was
    insufficient to show due diligence." 
    Boes. 122 Wash. App. at 575
    (quoting Perry. 40 Wn.
    App. at 853-54). Boes distinguished Perry. It explained that the plaintiff in Perry failed
    to follow up on information in the accident report and a tip from a former neighbor,
    whereas in Boes, the plaintiff "used all information reasonably available to her" and
    "exhausted reasonable leads and repeatedly attempted to serve [defendant]." 
    Boes, 122 Wash. App. at 575
    , 576.
    As the case authority discussed above shows, "[a] bare recitation of the statutory
    factors required to obtain jurisdiction is insufficient; the plaintiff must produce the
    specific facts which support the conclusions required by the statute." Pascua. 126 Wn.
    App. at 527. See also 
    Pascua. 126 Wash. App. at 527
    (affidavits stating that plaintiff had
    "'attempted a diligent search'" and that defendants had "'intentionally concealed]
    themselves to avoid service'" were insufficient to authorize service by publication and
    mail); Dobbins v. Mendoza. 
    88 Wash. App. 862
    , 872-74, 
    947 P.2d 1229
    (1997) (alteration
    in original) (affidavit submitted to support service by publication under RCW 4.28.100
    was inadequate to show due diligence when it merely stated the attorney made "diligent
    inquiry" as to the defendants' whereabouts but did not set forth facts showing a
    reasonably diligent search; supplemental affidavit failed to cure the defect where it
    -17-
    69400-6-1/18
    stated the attorney "initiated" calls to various government officials but did not specify
    who made the call or who was contacted).
    The record evidence amply demonstrates that Diamond failed to exercise the
    due diligence required by the statute to locate Richmond and all of his addresses.11
    The undisputed evidence summarized above undermines Diamond's sole reliance on
    the California address listed in the accident report. Both Diamond and her attorney
    admitted they either knew he did not live there or could not confirm he ever lived there.
    Attorney Anderson's affidavit of attempted service states he was "unable with due
    diligence to serve personal process on [Richmond]." It further states that Anderson
    "researched internet telephone directories," "conducted online search using the Accurint
    legal databases," and "contacted the Department of Homeland Security." As in Dobbins
    and Pascua. these statements lack any specific facts to support a due diligence
    conclusion. Richmond argued these deficiencies to the trial court: "Ms. Diamond's
    counsel does not say what information he obtained from the unnamed internet
    telephone directories, Accurint and the Department of Homeland Security."
    Anderson also fails to explain what "initial research" led him to conclude that
    Richmond "may have provided a falsified address and other contact information
    Indeed, nothing in the record supports this bare statement. A defendant has no legal
    duty to assist in service of process. 
    Pascua. 126 Wash. App. at 532
    ("Far from an
    obligation to assist service of process, this court has held that a defendants only duty
    11 A plaintiff relying on the nonresident motorist statute's substitute service
    procedures must prove by affidavit that the attorney with due diligence attempted to
    personally serve process on the defendant at "all addresses known to him or her of
    defendant. . . ." RCW 46.64.040 (emphasis added). This requirement includes the
    "last known" address.
    -18-
    69400-6-1/19
    is to accept service when validly tendered and not to evade service."); Thayer v.
    Edmonds. 
    8 Wash. App. 36
    , 41, 
    503 P.2d 1110
    (1972) (same). No record evidence
    indicates Richmond's travel constitutes intentional concealment to avoid service of
    process.12
    "[I]f plaintiff has information available pertaining to defendant's whereabouts
    other than that contained in the accident report, plaintiff must make reasonable efforts to
    investigate based on that information as well." 
    Meier. 111 Wash. 2d at 482
    . Abundant
    record evidence indicates Diamond and her attorney failed to pursue several
    reasonable and obvious leads. For example, after attorney Anderson spoke to
    Richmond by telephone on October 5, 2011, he knew or should have known the places
    where Richmond had resided—Mauritius, Bangladesh, and Vietnam—as well as
    Richmond's Massachusetts telephone number. Instead of attempting to locate him in
    any of those places, Anderson immediately served the secretary of state. Anderson
    also failed to contact Richmond's passenger—whose address and telephone number
    were listed on the accident report—to ask whether he knew Richmond's address. Nor
    is there any evidence to indicate Anderson contacted Richmond's friends living at the
    California address where Diamond attempted service to determine whether they knew
    Richmond's current address. The record shows no efforts made to contact Progressive,
    Fox Rent-A-Car, or SeaTac Municipal Court for information on Richmond's addresses.
    And Diamond conducted no Internet search for readily available contact information on
    12 Diamond contends Richmond received actual notice of the lawsuit and all due
    process considerations have been met because he was not prejudiced by improper
    service. But as Richmond correctly argues, learning about the suit does not subject him
    to personal jurisdiction.
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    69400-6-1/20
    Richmond. "Reasonable diligence requires contacting known third parties who may
    have knowledge of the defendant's whereabouts." Pascua. 126 Wn. App at 529.
    As to the California address, the record shows Diamond directed personal
    service and mail solely there even though she knew—because Richmond told her at
    least twice—that Richmond did not live there.13 Richmond also provided Diamond
    information that would have readily lead Diamond to locate his addresses in Mauritius
    and Bangladesh within the limitations period. The record also shows he lived in
    Mauritius within the limitations period and lived in Bangladesh within the limitations
    period and when the lawsuit commenced. We conclude Diamond failed to exercise due
    diligence to discover Richmond's addresses.
    CONCLUSION14
    For the reasons discussed above, we conclude that Diamond's attempted
    substitute service under the nonresident motorist statute, RCW 46.64.040, fails for lack
    of due diligence premised on undisputed facts indicating (1) no exercise of due
    diligence in locating Richmond's addresses, (2) no personal service attempts at those
    addresses, and (3) reliance solely on the California address as Richmond's "last known
    address" for mailing by registered mail the notice of service on the secretary, the
    13 As noted above, attorney Anderson acknowledged that he "could not confirm
    that a Jonathan Richmond ever used" the California address listed on the accident
    report.
    14 Given our lack of due diligence resolution, we need not address Richmond's
    remaining contentions. We question but do not address whether Diamond strictly
    complied with every procedural requirement of the statute.
    -20-
    69400-6-1/21
    summons or process, and the affidavits of compliance and due diligence.15 The due
    diligence standard imposed by the substitute service statute requires a plaintiff such as
    Diamond to exercise efforts beyond a mere perfunctory search to locate the defendant.
    We reverse with instructions to dismiss this lawsuit with prejudice for lack of personal
    jurisdiction.
    WE CONCUR:
    A*Jl, €••