Civil Procedure-Service of Notice of Claim upon County Not Service on State

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Slaughter v. Maricopa County, 606 Ariz. Adv. Rep. 30 (App. Div. I, May 5, 20111) (J. Winthrop)

Plaintiff worked as a security guard in Maricopa County Superior Court and filed a complaint alleging discrimination based upon age and sex as well as an hostile work environment. The county moved for summary judgment claiming that the court was a branch of the state and therefore the plaintiff was not a county employee but rather a state employee. Plaintiff responded claiming she was a county employee or conversely if she was a state employee the county acted as the state's agent in dealing with her. The trial court ruled there was a question of fact regarding the agency question. Plaintiff then amended her complaint to name the state as a defendant. The state then moved for summary judgment based upon the plaintiff's failure to comply with ARS sec. 12-821.01(A) in that she did not timely serve a notice of claim upon the state. Simultaneously the county moved to dismiss based upon plaintiff's failure to prosecute her claim. The trial court granted both motions and the Arizona Court of Appeals affirmed.

First the court of appeals noted that the notice of claim statute requires service upon the person authorized to accept service for the entity within 180 days after the cause of action accrues and the failure to timely accomplish this is not excused by actual notice or substantial compliance. Rule 4.1 of the Arizona Rules of Civil Procedure provides that the Arizona Attorney General is the person authorized to accept service for the State of Arizona. Although the plaintiff submitted evidence that she was hired and paid by the county, understood she was employed by the county and was never informed otherwise, she conceded she did not serve the attorney general with the notice of claim. The statute and rules are unambiguous that service upon the state must be to the attorney general and therefore summary judgment was proper. The issue of agency cannot change the clear mandate of the statute and rule.

With respect to summary judgment for the county on the basis of plaintiff's failure to prosecute, the court of appeals noted that Maricopa County Local Rule 3.6(a)(3) requires an action be dismissed for failure to prosecute and the trial court is given great deference on this issue. Here where the plaintiff had done nothing on the case other than file a lawsuit and amend the complaint, had conducted no discovery and was not ready for trial over two years after filing the amended complaint, there could be no abuse of discretion in the trial court dismissing for failure to prosecute.

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