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Rules of Civil Procedure Rule 4(i) Extension of Time to Serve Complaint

Posted by Ted A. Schmidt | Apr 03, 2020 | 0 Comments

Rules of Civil Procedure Rule 4(i) Extension of Time to Serve Complaint

Sholum v. Gass, No. CV-19-0149-PR (March 30,2020) (J. Gould) 

https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CV190149.pdf

RULE 4(i) REQUIRES EXTENSION OF TIME TO SERVE A COMPLAINT NOT ORIGINALLY SERVED WITHIN THE REQUIRED 90 DAYS  WHEN GOOD CAUSE IS SHOWN BUT COURT HAS DISCRETION TO EXTEND EVEN IF GOOD CAUSE IS NOT SHOWN AND PLAINTIFF NEED NOT SHOW EXCUSABLE NEGLECT

Plaintiff filed a medical malpractice action, but failed to serve it within 90 days but sought an extension of time to serve 10 months later. The trial court granted the motion to extend and the Complaint was served one year after the filing of the Complaint. The defendant brought a special action to the Arizona Court of Appeals arguing because plaintiff failed to show good cause or exusable neglect in failing to serve the complaint within 90 days the complaint should be dismissed. The court of appeals declined to accept jurisdiction but the Arizona Supreme Court did accept jurisdiction and affirmed the trial court.

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).

Rule 4(i), which is identical to current Federal Rule 4(m), provides that:

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.

Rule 6(b)(1) is the generally applicable rule for extending time in civil cases. It provides, in relevant part:
When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect.

We therefore conclude that because Rule 4(i) and Rule 6(b) impose conflicting standards, they cannot both control the granting of an extension. Accordingly, Rule 4(i)—the rule specific to service of process— must take precedence.

Finally, we caution that Rule 6(b)(1)(B)'s excusable neglect standard may apply to requests made after a court-ordered extended deadline has expired. Under these circumstances, Rule 4(i) would not apply because the deadline sought to be extended is not the ninety-day deadline addressed by that rule. Instead, the deadline is one set forth by court order, and the general provisions in Rule 6(b) therefore apply. Thus, a plaintiff who fails to meet the extended deadline may only receive anadditional extension upon a showing of excusable neglect under Rule 6(b)

Good cause was not shown here.  The fact the plaintiff's lawyer claimed he was busy with other clients is not good cause. The good cause required must be based upon something outside the plaintiff's control. Here plaintiff did not make enough attempts (6 attempts over 14 days) to serve nor did she try to serve at alternative locations.

In determining whether to grant a discretionary extension, courts have considered several factors, including whether: (1) the applicable statute of limitations bars the plaintiff from re-filing the action; (2) the defendant evaded service; and (3) the defendant would be prejudiced if the court grants the extension.Here, plaintiff failed to raise the statute of limitations as a reason for needing more time so the Supreme Court did not considered that basis for relief.

Nonetheless, there was some evidence the defendant was home at least once when service was attempted but refused to answer the door and was thus evading service.  This supports the trial court's discretionary granting of the motion to extend. 

Finally, there is no evidence defendant was prejudiced by the delay, such as witnesses being unavailable or evidence destroyed. The defendant only loses the procedural advantage of having the complaint dismissed for lack of strict compliance with a deadline if the trial court is affirmed.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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