McMahan v. Grasshopper, No. CV-25-0287-PR (July 30, 2026) (C.J. Timmer) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2026/McMahan%20v%20Grasshopper%20CV-25-0287%20%20Opinion.pdf?ver=CE1_1rEiYuipcYIIXfLRGg%3d%3d

INEFFECTIVE SERVICE OF PROCESS NOT WAIVED BY DEFENDANT'S ANSWER TO COMPLAINT AND FILINGS STATING IT HAD BEEN “SERVED” AND FAILURE TO FILE MOTION TO DISMISS

Plaintiff sued defendant after he was injured when a tractor-trailer struck A safety barricades at a construction site. Service of the summons and complaint was made upon an assistant in the defendant's statutory agent's office who was not authorized to accept them and who then sent the complaint to defendant the same day. 

When defendant did not answer plaintiff filed for an entry of default. Ariz. R. Civ. P. 55. Thereafter defendant answered the complaint alleging insufficiency of service of process and denying it owned the tractor trailer that hit the barricades.

Defendant's motions to set aside the default were denied by the Maricopa County Superior Court. Defendant repeatedly acknowledged it had been “served” in these motions. Defendant then filed a Rule 60(b)(4), which authorizes relief from a void judgment, even though a judgment had not yet been entered.  The trial court granted the Rule 60(b)(4) motion and vacated the entry of default. The Arizona Court of Appeals accepted special action jurisdiction and granted plaintiff relief from the granting of the motion. The Arizona Supreme Court affirmed the trial court and vacated the court of appeals decision.

Because service of process was admittedly defective here in the first instance, the trial court lacked personal jurisdiction over the defendant when the default purportedly became effective rendering that order void “from the outset.”  Answering the complaint, failing to file a Rule 12(b)(6) motion to dismiss, and stating it had been “served” did not waive the affirmative defense of insufficiency of service of process because the court had no jurisdiction, and the action was invalid from the outset.

In sum, whether the default was valid depends on the

jurisdictional facts as they existed when it became effective on April 29,

2024, not on anything Grasshopper did or said afterward.  The superior

court correctly set aside the default because it lacked personal jurisdiction

over Grasshopper at the time of entry.