Lacey v. Wen-Neva, Inc.

• Decision Date: 24 March 1993
• Docket Number: WEN-NEV,INC,No. 22660,22660
• Citation: 849 P.2d 260,109 Nev. 341
• Parties: Richard LACEY, Appellant, v., dba Wendy's Restaurant, Respondent.
• Court: Nevada Supreme Court

Page 260

849 P.2d 260

109 Nev. 341

Richard LACEY, Appellant, v. WEN-NEVA, INC., dba Wendy's Restaurant, Respondent.

No. 22660.

Supreme Court of Nevada.

March 24, 1993.

Hamilton & Lynch, Reno, for appellant.

Vargas & Bartlett and Debra B. Robinson, Reno, for respondent.

OPINION

PER CURIAM:

Appellant Richard Lacey (Lacey) slipped and injured himself on the premises of respondent Wendy's Restaurant (Wendy's), and brought suit for personal injuries. Lacey served a copy of the complaint on Wendy's within one month of filing the complaint, but the service was defective. More than one year later, Lacey amended the complaint and properly served Wendy's. Wendy's moved to dismiss the action for failure to effect service within 120 days of filing the complaint, as required by NRCP 4(i), and the district court granted the motion. We affirm the judgment of the district court for the following reasons: (1) Lacey could not show "good cause" for his failure to timely serve Wendy's, (2) Wendy's did not waive its objection to the defective original service by failing to bring a motion to quash service prior to its NRCP 4(i) motion to dismiss, and (3) filing an amended complaint which does not add new parties does not extend the time of initial service beyond the 120-day period commencing with the filing of the original complaint.

Facts

Lacey slipped and injured himself at a Wendy's as a result of icy conditions on the premises. On the final day before the statute of limitations ran, Lacey filed a complaint against Wendy's seeking damages for his personal injuries. Shortly thereafter, Lacey's counsel served a copy of the summons and complaint on an agent of Wendy's. Both parties acknowledge the service was defective. Within one month of the service, and within two months of the filing of the complaint, Wendy's wrote a letter to Lacey's counsel, dated February 23, 1990, informing Lacey's counsel that Wendy's considered the service to be defective and that Wendy's would not respond to the complaint until Wendy's was properly served. Lacey failed to take any further action until more than one year later, at which time Lacey filed an amended complaint and properly served it on Wendy's.

Wendy's moved to dismiss the action on the ground that Lacey had failed to serve Wendy's within 120 days of the filing of the complaint, as required by NRCP 4(i). The district court granted the motion, finding that the service was untimely and that Lacey failed to show good cause for the untimely service.

Discussion

Lacey contends the district court abused its discretion in dismissing his complaint for failure to effectuate service within 120 days when service was actually made within 120 days, but was defective, and proper service was not effectuated until more than 120 days after the filing of the complaint. NRCP 4(i) ¹ states:

Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

If a plaintiff fails to serve the defendant within 120 days and cannot show good cause why service was not timely made, plaintiff's case must be dismissed, as the language of NRCP 4(i) is mandatory. Dougan v. Gustaveson, 108 Nev. 517, 520, 835 P.2d 795, 797 (1992). The "good cause" determination, however, is one of discretion.

Lacey candidly admits the original service within 120 days was defective. Because Wendy's was not properly served within 120 days of the filing of the complaint, dismissal of the complaint was appropriate unless Lacey could show good cause for his failure to effect timely service or unless Wendy's waived the defense of untimely service of process. See NRCP 4(i); Dougan, 108 Nev. [109 Nev. 345] at 520-21, 835 P.2d at 797-98; Dallman v. Merrell, 106 Nev. 929, 930-31, 803 P.2d 232, 233 (1990); see also Arroyo v. Wheat, 102 F.R.D. 516, 517-18 (D.Nev.1984) (Federal Rule of Civil Procedure 4(j) applies where defective service is made within 120 days of filing of complaint, but proper service is not).

Good Cause

Lacey contends that good cause exists for his failure to timely serve Wendy's because Wendy's had notice of the action, Wendy's entered into settlement negotiations with Lacey, and Wendy's, by its conduct, "induced [Lacey's counsel] to believe that re-service would not be necessary." The record fails to demonstrate, however, that Wendy's induced Lacey to believe that re-service of the complaint would not be necessary, except that Wendy's entered into settlement negotiations with Lacey. On the contrary, Wendy's letter of February 23, 1990, plainly communicated to Lacey that Wendy's would not consider itself a proper party to any court proceedings until it was properly served. Settlement negotiations are no substitute for proper service of a party, and the fact that the parties were negotiating a settlement did not relieve Lacey from properly serving the complaint within 120 days. See C.H.A. Venture v. G.C. Wallace Consulting, 106 Nev. 381, 384, 794 P.2d 707, 709 (1990) (notice of an action and indirect participation in an action are "not a substitute for service of process"). Absent an agreement between the parties as part of the settlement negotiations that the service requirements of NRCP 4(i) would not be strictly enforced, settlement negotiations alone will not constitute good cause for a plaintiff's failure to serve process within 120 days of the filing of the complaint.

Lacey also contends that his counsel granted Wendy's an open extension of time to answer the complaint in the anticipation that the case would settle, and that Lacey should not be penalized for this hospitality. However, Lacey's offer of an open extension of time in which to file an answer occurred after Wendy's had informed Lacey that Wendy's would not respond to the complaint until proper service was made. There is no indication in the record that Wendy's requested, relied on, or gave credence to Lacey's invitation. While there may be circumstances which demonstrate an understanding or agreement between parties sufficient to constitute "good cause" for the plaintiff's failure to timely serve the complaint, there has been no showing in this case of any agreement between the parties that the time restrictions of the Nevada Rules of Civil Procedure would not be strictly enforced.

The district court found that Lacey failed to show good cause for his failure to serve Wendy's within 120 days, and we agree. We stated in Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992), that an attorney's "inadvertence does not justify untimely service." Id. at 520, 835 P.2d at 797. Only "legitimate extenuating circumstances" that show "good cause" justify an untimely service of process. Id. In Dougan this court found that late service of process due to a secretary's calendaring mistake did not constitute "good cause." Id. In Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), this court found that great difficulty in locating the defendant was not "good cause" for late service. Id. at 930-31, 803 P.2d at 232-33.

In the instant case, the assumption by Lacey's counsel that the case would settle and that service of process was not necessary because the court proceedings would not continue does not constitute good cause under NRCP 4(i). Service against Wendy's was untimely because Lacey's counsel made a tactical error in not re-serving Wendy's once Lacey's counsel was notified that the original service on Wendy's was improper. We conclude that Lacey failed to show "good cause" for the untimely service of Wendy's. If counsel's error in failing to timely serve a complaint were sufficient grounds to constitute "good cause," thereby preventing dismissal of the action, NRCP 4(i), requiring dismissal when a complaint is not timely served, would be rendered nugatory.

Waiver

Lacey asserts that Wendy's failure to file a motion to quash service, and its bringing of the NRCP 4(i) motion to dismiss for untimely service instead, waived any objection to the original defective service of process, which was served within 120 days, and therefore that service became valid and timely, and NRCP 4(i) became inapplicable. Thus, Lacey asserts that implicit in Wendy's motion to dismiss for failure to effect timely service is a challenge to the sufficiency of the original service of process, because without such a challenge, Wendy's has no claim that service was untimely.

An NRCP 4(i) objection to the untimely service of process may be waived. See Dougan, 108 Nev. at 520-21, 835 P.2d at 797-98. In Dougan, we found that, where a plaintiff fails to serve the defendant within 120 days of filing the complaint, this defect in service may be waived if the defendant fails to object to the untimely service in his first responsive pleading or pre-pleading motion. Dougan, 108 Nev. at 521, 835 P.2d at 798. The issue before us is whether an NRCP 4(i) motion to dismiss, brought before a motion to quash service, waives any objection to the sufficiency of the original service of process where service was made within 120 days of the filing of the complaint but was defective.

Although a motion to dismiss is the proper method for challenging a complaint when service of process has not been effected within 120 days, as required by NRCP 4(i), see NRCP 4(i); Dougan, 108 Nev. at 519, 835 P.2d at 796-97; Dallman, 106 Nev. at 930, 803 P.2d at 232; Domino v. Gaughan, 103 Nev. 582, 583, 747 P.2d 236, 237 (1987), the proper method for attacking improper service of process is a motion to quash service. Barnato v. District Court, 76 Nev. 335, 337, 339, 353 P.2d 1103, 1104, 1105 (1960). Generally, if a motion to quash service is not brought before, or...