Grant v. City of Twin Falls

• Decision Date: 07 December 1987
• Docket Number: No. 16778,16778
• Citation: 746 P.2d 1063,113 Idaho 604
• Parties: Curtis GRANT and Robert Grant, Plaintiffs-Appellants, v. CITY OF TWIN FALLS, Mike Garcia, Ronald E. Axtman, K.A. McDowell, John Doe Gardner, Defendants-Respondents.
• Court: Idaho Court of Appeals

Page 1063

746 P.2d 1063

113 Idaho 604

Curtis GRANT and Robert Grant, Plaintiffs-Appellants, v. CITY OF TWIN FALLS, Mike Garcia, Ronald E. Axtman, K.A. McDowell, John Doe Gardner, Defendants-Respondents.

No. 16778.

Court of Appeals of Idaho.

Dec. 7, 1987.

Donald W. Lojek, Lojek & Hall, Ctd., Boise, for plaintiffs-appellants.

Fritz A. Wonderlich, Benoit, Alexander, Sinclair, Harwood & High, Twin Falls, for defendants-respondents.

PER CURIAM.

This is an appeal from an order dismissing an action brought against the City of Twin Falls and officers of its police department. The plaintiffs, Curtis and Robert Grant, allege that they were unlawfully arrested, detained, and physically abused while in custody. The suit is grounded in the Federal Civil Rights Act, 42 U.S.C. § 1983, and in the Idaho Tort Claims Act, I.C. §§ 6-901 to -928. In his order of dismissal, the district judge held that the defendants had not been timely served under Rule 4(a), I.R.C.P., nor had the case been diligently prosecuted as required by Rule 41(b). The sole issue presented on appeal is whether the district judge abused his discretion in making these determinations. For reasons explained below, we conclude that he did.

Because the action was dismissed on procedural grounds, it is unnecessary for us to recite the facts framing the substantive issues in the case. Rather, we focus upon the procedural history. The events in question occurred on or about August 21, 1982. A notice of tort claim was filed for the plaintiffs by a Twin Falls attorney on October 26, 1982. The City investigated the claim but did not respond. The claim was deemed denied. The Twin Falls attorney then sought assistance from other counsel. On August 21, 1984, the plaintiffs' complaint was filed in Ada County by their present attorney, who practices in Boise. A summons was issued in January, 1986, by the clerk of the district court for Ada County. The defendants were served with copies of the summons and complaint in March, 1986. Pursuant to an apparent stipulation, the City was allowed additional time to answer the complaint. The City's answer was filed on April 17, 1986.

On May 1, 1986, a district judge in Ada County, the Honorable Deborah A. Bail, ordered a pretrial conference and tentatively set the case for trial. Several days later, the City answered interrogatories which had been propounded by the plaintiffs. On August 6, 1986, the City filed a "Motion to Dismiss or, in the Alternative, Motion to Change Venue." Although the motion asserted that the defendants had not been timely served and that the case had not been diligently prosecuted, the affidavits in support of the motion were directed entirely toward the question of proper venue. Judge Bail denied the motion to dismiss. With respect to the question of timely service, she held that Rule 4(a), I.R.C.P., "does not preclude summons being issued more than one year after the complaint is filed." With respect to the question of diligent prosecution, Judge Bail found "that this case, although dormant at one period of time, has now revived and discovery is pending. Therefore, the case will not be dismissed for failure to prosecute." However, Judge Bail did find that venue in Ada County was improper, and she ordered the case transferred to the district court in Twin Falls County.

After the case arrived in Twin Falls, the defendants moved to dismiss the plaintiffs' complaint upon several grounds, including the previously asserted reasons of untimely service of process and lack of diligent prosecution. In response, the plaintiffs' counsel filed affidavits indicating that several depositions recently had been taken and alleging that the defendants had not been prejudiced by any delay in the case. In a counter-affidavit, counsel for the defendants disputed the lack of prejudice. On November 26, 1986, a district judge in Twin Falls, the Honorable Daniel C. Hurlbutt, granted the defendants' motion. This appeal followed.

Before turning to Rules 4(a) and 41(b), we first deal with an argument by plaintiffs' counsel--that the Twin Falls judge should not have considered the defendants' renewed motion to dismiss. Counsel argues that the renewed motion was precluded by Rule 11(a)(2), I.R.C.P., and, in any event, that the earlier ruling by the Ada County judge represented "the law of the case." It appears that these arguments are being made for the first time on appeal. The Twin Falls judge was not asked, on either of these grounds, to refrain from ruling on the defendants' renewed motion. Accordingly, we will not discuss the argument further.

At times pertinent to this case, Rule 4(a) provided that "[a]t any time within one (1) year after the filing of the complaint, at the request of the plaintiff, the clerk of the district court shall forthwith issue a summons and deliver it for service...." (The rule, as amended effective November 1, 1987, no longer refers to one year or to any other time period.) As the Ada County judge noted, the version of the rule referring to a one-year period authorized, but did not specifically require, that the summons be issued by the clerk within that period. The rule apparently was a limitation on the clerk's power. A plaintiff seeking issuance of a summons after one year presumably would present his request, and make a showing of good cause, to a judge possessing authority to direct the issuance of the summons. In any event, as noted by the Ada County judge in this case, the rule contained no provision invalidating a summons issued after one year, nor did it provide for dismissal of an action solely upon the ground that the summons was issued more than one year after the complaint had been filed.

Consequently, as noted in Crawford v. Pacific Car & Foundry, Co., 112 Idaho 820, 736 P.2d 872 (Ct.App.1987), our research discloses no appellate decisions in Idaho dismissing an action solely upon the basis of Rule 4(a). However, there are two cases upholding dismissal of civil actions where, as here, an issue under Rule 4(a) has been raised in the larger context of failure to prosecute.

In Werner Piano Co. v. Baker, 35 Idaho 496, 207 P. 588 (1922), our Supreme Court held that a district judge did not abuse his discretion by dismissing an action for lack of prosecution where more than three years had elapsed between the filing of the complaint and the service of process. The defendant had moved promptly for dismissal upon being served, and the plaintiff had shown no cause for the extraordinary delay. These facts are in stark contrast to the present case. Here, the interval between the filing of the complaint and the service of process was approximately nineteen months. The defendants did not promptly seek to dismiss upon being served; rather, they filed their first motion to dismiss five months later, having answered the complaint and having responded to a detailed set of interrogatories propounded by the plaintiffs. Moreover, the defendants had been on notice of a possible lawsuit, and had investigated the facts potentially underlying such a suit, as a result of the notice of tort claim timely filed in 1982. Accordingly, we find nothing in Werner Piano that would support a dismissal under Rule 4(a) in the instant case.

The other case is of more recent vintage and was decided by our Court. In Nagel v. Wagers, 111 Idaho 822, 727 P.2d 1250 (Ct.App.1986), we held that a...