Think Plaintiff Blew the Deadline for Service? Think Again.
by Michael Kelley
Since 2017, the Arizona Rules of Civil Procedure have required that plaintiffs serve a copy of the summons and complaint upon each defendant within 90 days. “If a defendant is not served with process within 90 days after the complaint is filed, the court - on motion, or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Ariz R. Civ P. 4(i). While the rule states that the court “must dismiss the action,” the rule also gives each judge discretion to extend the time for service within a specified time. This discretionary decision must be based on facts presented to the court, but the Arizona Supreme Court has recently confirmed that very little is required to affirm a trial court’s decision to extend the time for service. Additionally, if there is good cause for the failure to serve the summons and complaint within the 90-day period, the Court must extent the time for service.
The scope of a trial court’s discretion to extend the time for service of process was recently examined by the Arizona Supreme Court in Sholem v. Langevin. In that case the plaintiff sued a hospital and doctors for being exposed to radiation in 1996 when she was still a fetus. She filed her Complaint on June 9, 2017 and thus had until September 7, 2017 (90 days) to serve the defendants. One of the doctors proved to be difficult to serve as the process server attempted service at his house six times between July 27, 2017 and August 11, 2017. While the house appeared unoccupied during each visit, someone had removed a package from the doctor’s porch between the service attempts. The doctor executed an affidavit avowing that he was out of town for one week “in early August 2017” and was not evading service. In May of 2018 – 11 months after the complaint was filed - the plaintiff filed a motion to extend the time for service of process. The trial court granted the motion without explanation and extended the deadline until August 31, 2018. The defendant was ultimately served on July 17, 2018, and shortly thereafter filed a motion to dismiss. In his motion defendant argued that there was no good cause to extend the deadline for service of process. The trial court denied the motion to dismiss and a subsequent motion for reconsideration. The Arizona Court of Appeals also denied the defendant’s petition for special action, but the Arizona Supreme Court ultimately accepted the petition for review.
The Arizona Supreme Court confirmed in its opinion that the Arizona Rules of Civil Procedure do not require a finding of good cause for a trial court to extend the deadline to complete service of process. The Court also confirmed that trial courts must extend the time for service if the plaintiff shows good cause for the failure to complete service of process in a timely manner. While the defendant correctly pointed out that if the plaintiff files a general motion to extend time after an original deadline has expired Rule 6 of the Arizona Rules of Civil Procedure (which deals with extensions of time under the rules) requires the plaintiff to show that the failure was due to excusable neglect, the Court held that Rule 6 does not apply to initial motions to extend the time to complete service of process. In particular, the Court determined that Rule 4(i) is a specific rule which applies to service of process and takes precedence over the conflicting standards set forth in Rule 6. However, Rule 4(i) only applies to initial motions to extend the time to complete service of process. Rule 6 applies to all subsequent motions to extend the deadline for service as the new deadline would be based on a court order, rather than the time limitations set forth in Rule 4(i). Even in that scenario, if the plaintiff files the second motion to extend the time to complete service of process before the time limit expires, the trial court may grant the motion if good cause is shown. It is only if the plaintiff fails to file the motion within the original extension that the trial court will require the plaintiff to prove “excusable neglect” for failing to meet the deadline.
Since the trial court denied the defendant’s motion to dismiss and motion for reconsideration without making a specific finding, the Arizona Supreme Court was left to determine if it could affirm the trial court ruling on any basis supported by the record. The Court first determined whether there was good cause to extend the time for service of process, and the Court found that there was none. In order for the good cause exemption to apply, the plaintiff must show that they exercised reasonable diligence in trying to serve the defendant. “Reasonable diligence” requires the plaintiff to provide the trial court with a valid reason or explanation for failing to serve the defendant within the 90-day time period. Ignorance, mistake, and inadvertence do not constitute a valid reason for missing the deadline.
The plaintiff’s attorney claimed that he was unable to complete service because they were busy identifying the other defendants and locating another doctor, but the Arizona Supreme Court found that being preoccupied with other parties and claims is not a valid reason for failing to timely serve another defendant. The Court also found that the plaintiff did not act diligently in attempting to complete service of process as she only attempted service six times over fourteen days of the allotted 90-day period. Diligence generally requires the plaintiff to make multiple attempts to serve a party throughout the 90-day period, and abandoning service after a few unsuccessful attempts to serve does not constitute diligence. Additionally, it was clear that the plaintiff made no attempt to serve the defendant at his business, or even attempt to use an alternative means of service, such as mail or publication. Based upon the foregoing, the Court found that there was no good cause to allow an extension of the original 90-day period for service of process.
Since the Arizona Supreme Court could not support the trial court’s ruling based upon the good cause exception, the Court then analyzed whether there was another fact which would have given the trial court discretion to extend the time for service. The discretion to extend the time for service is not “limitless” and must be based upon facts contained in the record. Trial courts will look at several factors, including whether the applicable statute of limitations bars the plaintiff from re-filing the action; whether the defendant had evaded service; and whether the defendant will be prejudiced if the trial court grants the extension. In this case the Arizona Supreme Court found that the plaintiff waived the argument that her claim would be barred by the statute of limitations because she did not present any evidence on this issue to the trial court. However, the Court also found that there was no evidence to show the defendant would be prejudiced by the delay. Even though more than 20 years had passed since the incident occurred, there was no evidence to show that evidence had be lost or that witnesses were no longer available as a result of the plaintiff’s delay. While the defendant had lost the ability to have the case dismissed on the grounds of abatement, this did not qualify as a showing of prejudice due to untimely service of process.
After rejecting every argument presented by plaintiff’s counsel, the Court found one fact it could use to support its position: the defendant possibly evaded service because someone had removed a package from his door step on July 27th or July 28th, and his affidavit only stated that he was out of town for “approximately one week in early August,” leaving open the possibility that he was home when the package was removed. This one fact allowed the Arizona Supreme Court to find that the trial court did not abuse its discretion when it denied the defendant’s motion to dismiss.
While it appears as though Arizona trial courts are given broad discretion to latch onto any fact to justify extending the time for service of process, the same cannot be said with respect to defendants who fail to file a timely answer when served with a summons and complaint. If your insured is served with a summons and complaint, they must act promptly and diligently to avoid a potential default judgment.
The attorneys at Thomas Rubin & Kelley are litigators. We will look at every avenue available to potentially dismiss a case for insufficient or improper service of process. These defenses must be asserted as early as possible in a case to avoid any argument that the issue has been waived. When you need prompt and efficient legal service, you can rely on Thomas Rubin & Kelley to be there for you and your insureds.
Please feel free to contact us if you have any questions regarding this article or need assistance with any of your Arizona claims.