Maher v. Urman

• Decision Date: 20 December 2005
• Docket Number: No. 2 CA-CV 2005-0039.,2 CA-CV 2005-0039.
• Citation: Maher v. Urman, 124 P.3d 770, 211 Ariz. 543 (Ariz. 2005)
• Parties: Steven A. MAHER, a married man dealing in his sole and separate property, Plaintiff/Appellant, v. Michael URMAN and Jane Doe Urman, husband and wife; Lisa Smith and John Doe Smith, wife and husband; and Deconcini, McDonald, Yetwin & Lacy, P.C., an Arizona professional corporation, Defendants/Appellees.
• Court: Arizona Supreme Court

124 P.3d 770

211 Ariz. 543

Steven A. MAHER, a married man dealing in his sole and separate property, Plaintiff/Appellant, v.Michael URMAN and Jane Doe Urman, husband and wife; Lisa Smith and John Doe Smith, wife and husband; and Deconcini, McDonald, Yetwin & Lacy, P.C., an Arizona professional corporation, Defendants/Appellees.

No. 2 CA-CV 2005-0039.

Court of Appeals of Arizona, Division Two, Department B.

December 20, 2005.

COPYRIGHT MATERIAL OMITTED

David Lipartito, Tucson, for Plaintiff/Appellant.

Fennemore Craig, By Andrew M. Federhar and Theresa Dwyer, Phoenix, for Defendants/Appellees.

OPINION

PELANDER, Chief Judge.

¶ 1AppellantSteven Maher appeals from the trial court's dismissal of his complaint without prejudice for failure to timely serve the defendants/appellees and from the court's denial of his motions for relief pursuant to Rule 60(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, andA.R.S. § 12-504, Arizona's savings statute.Finding no error, we affirm.

BACKGROUND

¶ 2 On June 22, 2004, Maher filed a complaint against appellees, his former attorneys—Michael Urman, Lisa Smith, and the law firm of DeConcini, McDonald, Yetwin & Lacy, P.C.In his complaint, Maher alleged those attorneys had negligently represented him in a securities matter and had breached the contract of representation.Maher alleged the parties had entered into the contract "[i]n or about April, 2001," but further asserted he did not, and could not, discover his claims until he received his file from the attorneys on June 25, 2002.

¶ 3The parties agree that a summons was issued on June 22, 2004, the same day Maher filed the action.But, he had failed to serve any of the defendants by September 24, 2004, when the trial court's calendar services department issued a notice of impending dismissal.The notice informed Maher that his action would be dismissed without prejudice "30 days from [its] date ... unless good cause is shown why service was not made within the time limits established by Rule 4,Rules of Civil Procedure."On October 22, Maher attempted to file a request to extend his time to serve the defendants.¹The trial court denied Maher's request on October 25, finding "no sufficient good legal cause provided."

¶ 4Defendants were then served with the summons and complaint on October 29, nine days after the time limit prescribed in Rule 4(i), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, and thirty-five days after the notice of impending dismissal.On November 17, defendants moved for an "order dismissing [Maher's] complaint for failure to serve the summons and complaint in a timely fashion."In his response and supplemental response, Maher claimed he had demonstrated "good cause" or at least "extenuating circumstances" to extend the time for service and, alternatively, relief should be granted pursuant to either Rule 60(c), Ariz. R. Civ. P., or § 12-504.The trial court granted defendants' motion to dismiss and denied Maher's alternate requests for relief.This appeal followed.

DISCUSSION

I.Dismissal for untimely service

¶ 5 In a two-pronged argument, Maher first contends the trial court erred in dismissing his complaint for untimely service.Specifically, he asserts the trial court(1) misinterpreted Rule 4(i), Ariz. R. Civ. P., and (2) abused its discretion by finding he had not shown "good cause," or by failing to find "extenuating circumstances," to extend the time for service.

¶ 6 The first prong of Maher's argument raises a legal issue subject to our de novo review.SeeVega v. Sullivan,199 Ariz. 504, ¶ 8, 19 P.3d 645, 648(App.2001)(we review de novo questions involving interpretation and application of court rules).Maher claims the trial court incorrectly interpreted Rule 4(i) as requiring a showing of good cause before it could extend the time for service even though the rule provided the court with "the option of setting a time for service (even absent a showing of good cause) rather than dismissing outright."We agree with Maher's interpretation of the rule but disagree with his conclusion that the trial court clearly misinterpreted it.

¶ 7As amended in 1996, Rule 4(i) states in pertinent part:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court ... shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Maher asserts the rule allows a trial court to extend the time for service without a showing of good cause but separately mandates an extension if good cause is shown.He argues the trial court denied his request for an extension of time because "[it] was unaware [it] had discretion under the rule to set a period for service instead of dismissing without prejudice....[It] seemed to believe that it had no choice but to dismiss."Conversely, appellees argue the rule permits a trial court to extend the time for service beyond 120 days if, and only if, good cause is shown.

¶ 8 As noted above, Rule 4(i) was amended in 1996.Before that amendment, the rule unambiguously required a showing of good cause in order to extend the time for service, stating "[i]f service ... is not made upon the defendant within 120 days after the filing of the complaint and the party on whose behalf ... service was required cannot show good cause why such service was not made ... the action shall be dismissed."See186 Ariz. LI (order amending Rule 4, effective December 1, 1996).As amended, however, the rule authorizes a court to "direct that service be effected within a specified time," apparently with or without a predicate showing of good cause.

¶ 9 In Toy v. Katz,192 Ariz. 73, 82 n. 1, 961 P.2d 1021, 1030 n. 1(App.1997), Division One of this court stated in dicta the 1996amendment did "not affect [the rule's] substance."But we question that dicta in view of the amended language of the rule itself and the amendment's purpose, which was "to bring various provisions in the Arizona Rules of Civil Procedure into greater conformity with their counterparts in the Federal Rules of Civil Procedure, as the latter had been amended in 1993."Daniel J. McAuliffe, Arizona Civil Rules Handbook 36(2005 ed.) Rule 4(m), Fed.R.Civ.P., is identical to Arizona's Rule 4(i).Before the federal rule was amended in 1993, its language was identical to Arizona's pre-1996 rule.SeePetrucelli v. Bohringer & Ratzinger,46 F.3d 1298, 1304(3rd Cir.1995)(citingFed.R.Civ.P. 4(j), the prior version of Fed.R.Civ.P. 4(m)).Federal courts interpreting the amended rule have recognized that the amendment effected a substantive change.SeeHenderson v. United States,517 U.S. 654, 662-63, 116 S.Ct. 1638, 1643, 134 L.Ed.2d 880, 889-90(1996)(1993amendments accorded courts discretion to extend 120-day period even when no good cause shown);Horenkamp v. Van Winkle & Co.,402 F.3d 1129, 1131-32(11th Cir.2005)(noting that "[p]rior to the amendments of 1993, the federal rules required a district court to dismiss an untimely served complaint absent a showing of good cause," but that "a majority of ... circuits ... have held that the 1993amendment permits a district court to exercise discretion under Rule 4 to extend the time for service of process, even where the plaintiff has not shown good cause for his failure").

¶ 10 In addition, several federal cases support Maher's position: the language of Rule 4(i), Ariz. R. Civ. P., allows a trial court to extend the time for service, even absent a showing of good cause.SeePanaras v. Liquid Carbonic Indus. Corp.,94 F.3d 338, 340(7th Cir.1996)("where good cause is shown, the court has no choice but to extend the time for service...[i]f, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time");Espinoza v. United States,52 F.3d 838, 840-41(10th Cir.1995)("The plain language of Rule 4(m) ... broadens the [trial] court's discretion by allowing it to extend the time for service even when the plaintiff has not shown good cause.").These cases are particularly compelling in light of the fact that the federal rule was amended to its current version in 1993, and Arizona's 1996 rule change mirrors the federal change.SeeRitchie v. Grand Canyon Scenic Rides,165 Ariz. 460, 462, 799 P.2d 801, 803(1990)("Whenever feasible our courts have looked to the origin and interpretation of federal counterparts for guidance in construing the Arizona rules.");see alsoOrme Sch. v. Reeves,166 Ariz. 301, 304, 802 P.2d 1000, 1003(1990)("uniformity in interpretation of our rules and the federal rules is highly desirable").In short, we reject appellees' assertion that current Rule 4(i)"makes it clear that the court`shall' dismiss the action unless the `plaintiff shows good cause for the failure.'"²

¶ 11 Nonetheless, based on the record before us, we cannot conclude the trial court was unaware of or disregarded its discretion under Rule 4(i)as amended.In support of an opposite conclusion, Maher points to the hearing on appellees' motion to dismiss for untimely service, at which the court stated: "I don't have good cause to grant anything other than defense counsel's request that this matter be dismissed for failure to timely serve."Maher argues that statement implicitly shows the court was unaware that, in its discretion, it could extend the time for service under Rule 4(i), even absent a showing of good cause.³We disagree.

¶ 12 In neither his multiple responses to appellees' motion to dismiss nor his oral argument on the motion did Maher mention, let alone emphasize, the 1996 rule change or its effect.Rather, he merely argued that good cause or extenuating circumstances existed for his delay in service, not that the court...