Hansen v. White

• Decision Date: 08 June 2018
• Docket Number: Docket No. 45185
• Court: Idaho Supreme Court
• Parties: Melanie HANSEN, Plaintiff-Appellant, v. Gary E. WHITE, Defendant-Respondent.

163 Idaho 851
420 P.3d 996

Melanie HANSEN, Plaintiff-Appellant,
v.
Gary E. WHITE, Defendant-Respondent.

Docket No. 45185

Supreme Court of Idaho, Boise, April 2018 Term.

Filed: June 8, 2018

McBride, Roberts & Romrell, Idaho Falls, for appellant. Michael R. McBride argued.

Ryan B. Peck, Pocatello, for respondent.

BRODY, Justice

163 Idaho 852

This is a case about what constitutes "good cause" for failing to timely serve a defendant in accordance with the Idaho Rules of Civil Procedure. The case began with a May 2014 auto collision in Idaho Falls involving Melanie Hansen and Gary White. Hansen claimed White's negligence caused the collision, and she filed a complaint against him in May 2016. Process servers attempted to serve White in October 2016 at the address listed on the police report, which was taken from his driver's license. White had not lived at this address for years. Just days before the six-month deadline, Hansen attempted service by publication without obtaining a court order as required by statute. The process server also left the complaint and summons with White's daughter-in-law at the address listed on the police report. White filed a motion to dismiss for lack of service in November 2016. The district court initially found that good cause existed for Hansen's failure to timely serve White, but after holding a hearing on White's subsequent motion for reconsideration, dismissed the claim without prejudice for failure to timely serve. Hansen appeals the dismissal. We affirm.

I. BACKGROUND

On May 23, 2014, Melanie Hansen and Gary White were involved in a vehicle collision in Idaho Falls. An Idaho Falls Police officer responded to the scene, talked with both parties, and assessed that White's inattention caused the collision. White provided the officer his driver's license, on which White's address was listed as being in the city of Firth (the "Firth residence"). The officer listed the Firth residence as White's address on the collision report. Hansen filed a complaint seeking damages resulting from the collision on May 10, 2016, shortly before the two-year statute of limitations ran.

In October 2016, Hansen's attorney's legal assistant engaged Bulldog Legal Support ("BLS") to serve the complaint on White. The summons listed the Firth residence as White's address. BLS attempted service at this address on October 25, 2016. The BLS process server met Jeremy White at the Firth residence. Jeremy White informed the process server that he was Gary White's son, that Gary had not lived there for over ten years, and that he did not know Gary's current location but thought it may be in Mesquite, Nevada. BLS informed the legal assistant, who provided no further information as to Gary White's current address. BLS then provided an affidavit of non-service to the legal assistant. On October 31, 2016, the legal assistant asked BLS to return to the Firth residence and effect service. BLS returned on November 2, 2016, leaving the complaint with Natalie White, Jeremy's wife and Gary's daughter-in-law.

The assistant additionally searched various internet sites for 1.5 hours in late October, but she was unable to find Gary White's address. She also attempted service by publication after discovering White did not live at the Firth residence, submitting the summons

420 P.3d 998

163 Idaho 853

on October 27, 2016 to the Post Register. Publication began on November 1 and continued four successive weeks through November 22. Hansen conceded, however, to not obtaining a court order in accordance with Idaho Code section 5-508 before attempting service by publication.

White filed a motion to dismiss Hansen's complaint on November 21, 2016, due to lack of personal jurisdiction for failure to serve him with process within the requisite six-month period, which ended on November 10. Hansen responded with a motion requesting an extension, claiming "good cause" existed for failing to effect service within the six-month period. The district court denied White's motion to dismiss, granted Hansen's motion for an extension, and ordered service by publication in the Post Register.

White filed a motion for reconsideration, and stated that the motion would draw on supplemental case law as well as new evidence, including additional affidavits and testimony from the Idaho Falls officer who responded the day of the collision. Each party submitted briefs. On April 27, 2017, the district court held an evidentiary hearing on the motion, after which the court issued an oral ruling dismissing Hansen's case without prejudice. The court provided a written order consistent with its oral ruling on May 5, 2017. Since the statute of limitations expired one year earlier, in May 2016, the dismissal without prejudice effectively ended Hansen's claim. Hansen timely appealed.

II. STANDARD OF REVIEW

The district court may reconsider and vacate a prior interlocutory order "so long as final judgment has not been entered." Sammis v. Magnetek, Inc. , 130 Idaho 342, 346, 941 P.2d 314, 318 (1997). "If a defendant is not served within 6 months after the complaint is filed, the court ... must dismiss the action without prejudice against the defendant. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." I.R.C.P. 4(b)(2). Whether good cause exists is a factual determination. Sammis , 130 Idaho at 346, 941 P.2d at 318 ; Martin v. Hoblit , 133 Idaho 372, 375, 987 P.2d 284, 287 (1999). The inquiry into good cause must focus on the six-month time period from the filing of the complaint, and the trial court must consider the totality of the circumstances to "determine whether the plaintiff had a legitimate reason for not serving the defendant" within that period. Nerco Minerals Co. v. Morrison Knudsen Corp. , 132 Idaho 531, 534, 976 P.2d 457, 460 (1999) (citing Telford v. Mart Produce, Inc. , 130 Idaho 932, 936, 950 P.2d 1271, 1275 (1998) ).

The good cause determination typically requires the summary judgment standard of review, in which the district court liberally construes the record in the light most favorable to the nonmoving party. Sammis , 130 Idaho at 346, 941 P.2d at 318. However, when the district court holds an evidentiary hearing that includes oral testimony, the court has "the opportunity to observe the witnesses' demeanors while testifying, to assess their credibility, and to detect prejudice or motive." Elliott v. Verska , 152 Idaho 280, 285, 271 P.3d 678, 683 (2012). This initiates a shift from the summary judgment standard of...