Sholem v. Gass

248 Ariz. 281

460 P.3d 273

Steven SHOLEM, M.D., Petitioner,

v.Hon. David GASS and Hon. Connie Contes, Judges of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA Respondent Judges,Melissa Langevin, Real Party in Interest.

No. CV-19-0149-PR

Supreme Court of Arizona.

Filed March 30, 2020

Eileen Dennis GilBride, (argued) Jones, Skelton & Hochuli, P.L.C., Phoenix; Andrew Rosenzweig, Michael F. Tamm, Quintairos, Prieto, Wood & Boyer P.A., Phoenix, Attorneys for Steven Sholem

Douglas C. Erickson, Daniel D. Maynard, (argued) Maynard Cronin Erickson Curran & Reiter, P.L.C., Phoenix, Attorneys for Melissa Langevin

Jeffrey C. Warren, Amanda Heitz, David T. Lundmark, Claudia Ionescu, Bowman and Brooke, LLP, Phoenix, Attorneys for Amicus Curiae Arizona Association of Defense Counsel

JUSTICE GOULD authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, BEENE and MONTGOMERY joined.

JUSTICE GOULD, opinion of the Court:

¶1 Arizona Rule of Civil Procedure Rule 4(i) provides that if a plaintiff does not serve a defendant with a summons and complaint within ninety days of filing the complaint the court "must" dismiss the case without prejudice. Such a dismissal for untimely service is referred to as "abatement." In this case, we address the grounds for obtaining an extension for service under Rule 4(i) and its interplay with Rule 6(b), the generally applicable rule for extending time.

¶2 We hold that under Rule 4(i), if a plaintiff shows good cause for failing to serve a defendant within ninety days, a court is required to extend the time for service. However, Rule 4(i) also allows a court, in its discretion, to extend the period for service without a plaintiff showing good cause. Additionally, we hold that if the ninety-day period for service has expired, a plaintiff seeking an extension under Rule 4(i) need not show that the delay in service or the delay in requesting an extension was due to excusable neglect, as is required under Arizona Rule of Civil Procedure 6(b)(1)(B). Finally, we provide guidance as to what constitutes good cause, as well as a non-exhaustive list of factors for courts to consider in exercising their discretion under Rule 4(i).

I.

¶3 In 1996, Melissa Langevin’s parents sued Phoenix Baptist Hospital and Medical Center, Dr. Steven Sholem, and Dr. John Carlson for negligently exposing Langevin’s mother to radiation while she was pregnant with Langevin. The parties settled the day before trial after completing discovery.

¶4 Twenty years later, Langevin sued the same hospital and doctors. On June 9, 2017, Langevin filed her complaint against Sholem. Pursuant to Rule 4(i), she had until September 7, 2017 (ninety days) to serve him. Langevin attempted to serve Sholem at his residence six times between July 27, 2017 and August 11, 2017. The process server observed that during each service attempt, the blinds were closed, the porch light was on, and no vehicles were in the driveway. However, he also noted that someone removed a package addressed to Sholem from the porch on July 27 or 28. Sholem later submitted an affidavit avowing that he was out of town for one week in "early August 2017" and was not evading service.

¶5 In May 2018, more than ten months after the ninety-day deadline had expired, Langevin filed a motion "pursuant to Rule 4(i)" seeking to extend the time for service. In her motion, Langevin claimed that she had attempted to serve Sholem multiple times at his last known address. The court determined there was good cause to grant the motion and extended the deadline for service until August 31, 2018.

¶6 On July 17, 2018, over one year after filing the complaint, Langevin served Sholem. He moved to dismiss, arguing that the complaint abated because Langevin: (1) failed to serve the summons and complaint within Rule 4(i) ’s ninety-day period; and (2) did not show good cause for extending the deadline. In response, Langevin argued that Rule 4(i) permitted the court to extend the deadline with or without good cause. Further, Langevin argued that she had made diligent efforts to serve Sholem, and that she had gained no "tactical advantage" by failing to serve the complaint earlier. The trial court, without making any findings, denied Sholem’s motion to dismiss and his subsequent motion for reconsideration.

¶7 Sholem filed a special action with the court of appeals, which declined to accept jurisdiction. We accepted review of Sholem’s petition for review because this case involves the construction of Rule 4(i), an issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

II.

¶8 Sholem argues that Langevin was required to show good cause for extending the time for service under Rule 4(i). Additionally, he asserts that Langevin was required to show that her failure to seek an extension within the ninety-day period was due to excusable neglect, as required by Rule 6(b)(1)(B).

¶9 We review the construction of a rule de novo. Flynn v. Campbell , 243 Ariz. 76, 80 ¶ 7, 402 P.3d 434, 438 (2017). In construing a rule, we apply the "usual, ordinary meaning" of its words "unless doing so creates an absurd result." Haywood Sec., Inc. v. Ehrlich , 214 Ariz. 114, 116 ¶ 10, 149 P.3d 738, 740 (2007) (citation omitted) (internal quotation marks omitted); see also Preston v. Kindred Hosps. W., L.L.C. , 226 Ariz. 391, 393 ¶ 8, 249 P.3d 771, 773 (2011) (stating that we apply "principles of statutory construction" when interpreting a rule).

A.

¶10 Arizona has had an abatement rule since statehood. See Revised Statutes of Arizona (Civil Code) § 460 (1913) ("An action shall abate if the summons be not issued and served ... within one year from the filing of the complaint."); McCulloch v. W. Land & Cattle Co. , 27 Ariz. 154, 157, 231 P. 618 (1924) (stating that a rule providing for abatement of an action within one year from the filing of the complaint "was part of the act of the first Legislature of its second special session").

¶11 The purpose of the abatement rule is to encourage the speedy resolution of lawsuits and protect defendants from prejudice. Murphey v. Valenzuela , 95 Ariz. 30, 32–33, 32 n.1, 386 P.2d 78 (1963). This purpose comports with our courts’ overarching goal to timely, fairly, and inexpensively resolve lawsuits. See Ariz. R. Civ. P. 1. The abatement rule recognizes that when a plaintiff allows a lawsuit to "lie dormant" there is a "danger" that defendants

might be greatly and wrongfully prejudiced by being brought into court long after the subject-matter of controversy had passed out of their minds, when perhaps witnesses are dead, and testimony lost, and yet the statute of limitations might not be available as a defense.

Valenzuela , 95 Ariz. at 32 n.1, 386 P.2d 78 (citation omitted).

¶12 The abatement rule was eventually codified as Rule 6(f) of the Arizona Rules of Civil Procedure. See Ariz. R. Civ. P. 6(f) (1956). Rule 6(f), which remained unchanged until 1992, provided that, "[a]n action shall abate if the summons is not issued and served ... within one year of the filing of the complaint." Although Rule 6(f) stated that an action "shall abate" after one year, this provision was not self-executing. Rather, a plaintiff could move to extend the time for service for "cause shown." Garcia v. Frey , 7 Ariz. App. 601, 605, 442 P.2d 159 (1968) ; see also Grobe v. McBryde , 105 Ariz. 577, 579, 468 P.2d 936, 938 (1970) (holding that the time for service under Rule 6(f) may be extended for good cause). Additionally, if "the one-year limit of Rule 6(f)" expired, plaintiffs were required, pursuant to Rule 6(b), to show that their delay was due to "excusable neglect." Garcia , 7 Ariz. App. at 605, 442 P.2d 159.

¶13 The abatement rule has undergone several material changes in recent years. Most of the recent changes have been made to conform Arizona’s abatement rule to the Federal Rule. Thus, for example, before 1983, federal courts applied a flexible "due diligence" standard for service, and there was no specific time limit for serving the summons and complaint after a complaint was filed. See 96 F.R.D. 81, "Changes in Federal Summons Under Amended Rule 4 of the Federal Rules of Civil Procedure," 101, 109, 119 (1983) (discussing the pre-1983 standards for service of process). However, when Federal Rule 4(j) was promulgated in 1983, it provided a 120-day time limit for service and required a showing of good cause for any extension of that limit. See id. at 86 ; Henderson v. United States , 517 U.S. 654, 662–63, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (stating that under the 1983 amendments to Federal Rule 4(j) the time to serve a complaint could only be extended upon a showing of "good cause").

¶14 In 1992, the Arizona rule was amended to conform with Federal Rule 4(j). See Ariz. R. Civ. P. 4(i), December 1991 Amendment. Rule 6(f) was renumbered as Rule 4(i) and, as amended, stated:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed ....

The 1992 version of Rule 4(i), like its federal counterpart, provided a 120-day time limit for service and required a showing of good cause for an extension. See Maher v. Urman , 211 Ariz. 543, 547 ¶ 8, 124 P.3d 770, 774 (App. 2005) (stating that the 1992 version of Rule 4(i) "unambiguously required a showing of good cause in order to extend the time for service").

¶15 Federal Rule 4(j) was amended and renumbered as Rule 4(m) in 1993. Thereafter, in 1996, Arizona Rule 4(i) was also amended. As amended, Arizona Rule 4(i) was identical to Federal Rule 4(m). See Maher , 211 Ariz. at 547 ¶ 9, 124 P.3d at 774 (noting that Rule 4(i), as amended in 1996, is "identical" to Federal Rule 4(m) ). And, once again, when Federal Rule 4(m)...