If We Ignore it, Will It Go Away? – A Cautionary Tale of Timeliness

Under Washington State law, failing to act in a timely manner at any stage of a lawsuit, from pre-suit initiation through active litigation to post-judgment proceedings, can carry severe procedural and substantive consequences. These consequences range from the absolute bar of a claim or defense to monetary sanctions, evidentiary exclusions, dismissal of the action, and the loss of the right to appeal or collect on a judgment.  As can be seen by the paragraphs below, the best chance of a good outcome for your case is to assist your attorney by timely providing necessary information and/or documentation when needed at each step of the litigation process.

Failure to Timely Initiate an Action

Failing to timely initiate a lawsuit or comply with preliminary filing and service deadlines in Washington can result in the permanent loss of the right to pursue a claim.

• Expiration of the Statute of Limitations: If a plaintiff fails to commence an action within the applicable statutory timeframe, the claim is permanently barred. Under Washington law, various actions must be commenced within three years, including actions for waste or trespass upon real property, personal injury, injury to personal property, oral contracts, and relief based on fraud.[1] Construction-related claims must accrue within a six-year statute of repose after substantial completion of construction or termination of services, or they are barred.[2]
• Failure to Toll the Statute of Limitations: Under Washington law, an action is commenced, for the purpose of tolling the statute of limitations, when the complaint is filed or the summons is served, whichever occurs first.[3] If a plaintiff files the complaint first but fails to personally serve at least one defendant (or commence service by publication) within 90 days of filing, the action is deemed not to have been commenced, and the statute of limitations is not tolled.[4]  Conversely, if an action is commenced by service, the plaintiff must file the summons and complaint within 90 days of service; failure to do so likewise invalidates the tolling of the statute.[5]
• Notice of Appearance Does Not Waive Untimely Service: Filing a complaint on the last day of the limitations period without achieving proper service within the 90-day tolling window renders the action time-barred.[6]  A defendant’s voluntary filing of a notice of appearance within those 90 days does not waive the statute of limitations defense or cure the failure to timely serve process.[7] Untimely service of process is legally insufficient.[8]
• Will Contests: An interested party contesting the validity of a probated or rejected will must file a petition within four months.[9]  To toll this period, the petitioner must personally serve the personal representative within 90 days of filing.[10] Failing to file and serve within these precise windows makes the probate or rejection of the will final and binding.[11]
• Untimely Administrative Appeals: In workers’ compensation cases under the Industrial Insurance Act, a party aggrieved by a Department of Labor and Industries order must file a notice of appeal within 60 days of communication of the order.[12]  Failing to appeal within this 60-day limit makes the order res judicata, precluding any further argument or challenge.[13]  Similarly, failing to file a written petition for review of an industrial appeals judge’s proposed decision with the Board of Industrial Insurance Appeals within 20 days results in the automatic adoption of the decision, which then becomes non-appealable.[14]

Failure to Act Timely Within an Active Lawsuit

Delays and failures to meet deadlines while an action is pending may trigger extensive sanctions, default mechanisms, and procedural bars.

• Failure to File After Demand: If a civil action is commenced by service, any other party may make a written demand that the plaintiff pay the filing fee and file the summons and complaint.[15] If the plaintiff fails to do so within 14 days after service of the demand, the service becomes void.[16]
• Loss of Right to Notice upon Default: A party who fails to timely appear in an action is not entitled to notice of any subsequent proceedings, including the presentation of findings of fact and conclusions of law, or the entry of a default judgment.[17]
• Discovery Violations and Failure to Participate in Discovery Planning: Under Washington Civil Rule (CR) 37, a party’s failure to timely respond to discovery, obey discovery orders, or participate in good faith in framing a discovery plan yields severe penalties:
  • Monetary Sanctions: Courts can order the non-compliant party, their attorney, or both to pay the opposing party’s reasonable expenses, including attorney fees.[18]
  • Evidentiary Bars: The court may refuse to allow the disobedient party to support or oppose designated claims or defenses, or prohibit them from introducing designated matters into evidence.[19]
  • Pleadings and Procedural Sanctions: Courts may strike pleadings or parts thereof, stay further proceedings until orders are obeyed, or treat the failure as contempt of court.[20]
  • Dismissal and Default Judgment: For willful and deliberate discovery failures that cause substantial prejudice, courts may dismiss the action with prejudice or render a default judgment against the disobedient party.[21]
• Failure to Appear for Trial: The failure of a party seeking affirmative relief or asserting an affirmative defense to appear on the scheduled trial date may result in the automatic dismissal of their claims or defenses without further notice.[22]

Failure to Act Timely at the End of a Lawsuit or Post-Judgment

Delays following a trial, settlement, or final judgment restrict enforcement rights and access to post-conviction relief.

• Execution and Collection on Judgments: A judgment creditor generally has only 10 years from the date of the entry of a Washington judgment (or the filing of a foreign judgment) to have an execution, garnishment, or other legal process issued for collection.[23] Subject to narrow statutory exceptions, no judgment remains enforceable for a period exceeding 20 years from the date of its entry in the originating court.[24]
• Notice of Settlement: If a case is settled after being assigned for trial, the attorneys or pro se parties must promptly notify the court.[25] If the settlement occurs within 5 days before the trial date, failure to immediately notify the court by telephone or in person violates procedural requirements.[26]
• Criminal Collateral Attacks: In criminal cases, a defendant is barred from filing a petition or motion for collateral attack (including personal restraint petitions, habeas corpus, motions to vacate, motions to withdraw a guilty plea, or motions for a new trial) more than one year after the judgment and sentence becomes final, provided it is valid on its face and issued by a court of competent jurisdiction.[27]

Qualifications and Limitations on Sanctions

Washington courts apply distinct constitutional and procedural limits before enforcing the most severe consequences of untimely litigation conduct.

Before a trial court can impose the “drastic remedy” of dismissal or default for discovery-related untimeliness or non-compliance under CR 37, it must explicitly evaluate three factors on the record: (1) whether the party’s failure was willful or deliberate; (2) whether the delay substantially prejudiced the opponent’s ability to prepare for trial; and (3) whether the court considered less severe sanctions.[28]   Failure to make these explicit findings on the record constitutes an abuse of discretion.[29]

Additionally, while the civil rules permit courts to relieve a party from a final civil judgment or order due to “excusable neglect” within a reasonable time (not to exceed one year for mistakes or neglect),[30] this rule does not apply to untimely challenges of Dept. of L&I administrative orders.[31]  Furthermore, CR 6(b), which permits courts to enlarge time limits set by civil rules for excusable neglect, cannot be used to enlarge or excuse a failure to meet a strict statutory appeal or filing deadline.

In conclusion, failing to act in a timely manner under Washington law carries progressively severe penalties across all phases of litigation. At the outset, a plaintiff’s delay can permanently bar claims through the expiration of the statute of limitations or the failure to properly toll the limitations period. During active litigation, untimely responses and failure to meet case schedules can result in harsh discovery sanctions, including the striking of pleadings, exclusion of evidence, monetary penalties, or the ultimate dismissal of the case. Finally, after a lawsuit has concluded, strict time boundaries govern the ability to appeal, seek post-conviction relief, or execute and collect on a final judgment.  Therefore, please be vigilant, as good results in your matter may depend upon it.

Our Litigation Team has extensive experience dealing with all types of disputes and litigation. Contact us at info@beresfordlaw.com or by phone at (425) 776-4100 to see how we can help.

BERESFORD BOOTH has made this content available to the general public for informational purposes only. The information on this site is not intended to convey legal opinions or legal advice.

[1] RCW 4.16.080.

[2] RCW 4.16.310.

[3] RCW 4.16.170; CR 3.

[4] RCW 4.16.170; Adkinson v. Digby, Inc., 99 Wn.2d 206, 208, 660 P.2d 756, 757 (1983).

[5] Id.

[6] Adkinson, 99 Wn.2d at 208.

[7] Id.

[8] Gross v. Sunding, 139 Wn. App. 54, 63, 161 P.3d 380, 385 (2007).

[9] RCW 11.24.010.

[10] Id.

[11] Id.

[12] Pearson v. Dep’t of Labor & Indus., 164 Wn. App. 426, 433, 262 P.3d 837, 840 (2011).

[13] Id.

[14] B & J Roofing v. Bd. of Indus. Ins. Appeals, 66 Wn. App. 871, 875, 832 P.2d 1386, 1388 (1992).

[15] Washington Civil Rule (CR) 3.

[16] Id.

[17] CR 55; Allison v. Boondock’S, Sundecker’s & Greenthumb’S, 36 Wn. App. 280, 283, 673 P.2d 634, 636 (1983).

[18] CR 37; Amy v. Kmart of Wash., LLC, 153 Wn. App. 846, 865, 223 P.3d 1247 (2009).

[19] CR 37, Green v. Kootenai Heart Clinics, LLC, 34 Wn. App. 2d 216, 224, 567 P.3d 645, 650 (2025).

[20] Id.

[21] Id.

[22] CR 41; Alexander v. Food Servs. of Am., 76 Wn. App. 425, 430, 886 P.2d 231, 234 (1994).

[23] RCW 6.17.020.

[24] Id.

[25] CR 41.

[26] Id.

[27] RCW 10.73.090.

[28] Burnet v. Spokane Ambulance, 131 Wn.2d 484, 511-12, 933 P.2d 1036, 1049 (1997).

[29] Id.

[30] CR 60(b).

[31] Pearson, 164 Wn. App. at 433.