Taylor v. Chamberlain

• Decision Date: 23 May 2013
• Docket Number: No. 39378–2011.,39378–2011.
• Court: Idaho Supreme Court
• Parties: Thomas R. TAYLOR, Plaintiff–Appellant, v. David CHAMBERLAIN, D.O., an individual; Eastern Idaho Health Services, Inc., an Idaho corporation d/b/a Eastern Idaho Regional Medical Center; and John M. Jacobs, M.D., an individual, Defendants–Respondents, and Russ Rowberry, RNFA, an individual; Divyesh R. Bhakta, M.D., an individual; David Ontiveros, M.D., an individual; IHC Health Services, Inc., A Utah corporation d/b/a Cassia Regional Medical Center, Defendants.

154 Idaho 695

302 P.3d 35

Thomas R. TAYLOR, Plaintiff–Appellant,

v.David CHAMBERLAIN, D.O., an individual; Eastern Idaho Health Services, Inc., an Idaho corporation d/b/a Eastern Idaho Regional Medical Center; and John M. Jacobs, M.D., an individual, Defendants–Respondents,andRuss Rowberry, RNFA, an individual; Divyesh R. Bhakta, M.D., an individual; David Ontiveros, M.D., an individual; IHC Health Services, Inc., A Utah corporation d/b/a Cassia Regional Medical Center, Defendants.

No. 39378–2011.

Supreme Court of Idaho, Idaho Falls, May 2013 Term.

May 23, 2013.

Daniel K. Brough, Bennett Tueller Johnson & Deere, Salt Lake City, Utah, argued for appellant.

J. Michael Wheiler, Thomsen Stephens Law Offices, Idaho Falls, argued for respondent David Chamberlain.

Marvin K. Smith, Smith & Banks, Idaho Falls, argued for respondent Eastern Idaho Health Services, Inc.

John M. Avondet, Beard St. Clair Gaffney, Idaho Falls, argued for respondent John M. Jacobs.

EISMANN, Justice.

This is an appeal out of Bonneville County from a judgment dismissing a medical malpractice case without prejudice on the ground that the plaintiff had failed to show good cause for not serving the defendants with a summons and complaint within six months after the plaintiff filed this action. We affirm the judgment of the district court.

I.Factual Background.

On January 20, 2011, Thomas R. Taylor (Plaintiff) filed this action seeking to recover damages for alleged medical malpractice. Pursuant to Idaho Code section 6–1001, he then filed a request for a prelitigation screening panel four days later. Such a panel is a compulsory condition precedent to litigating a medical malpractice claim against physicians and surgeons practicing in Idaho and against licensed acute care general hospitals operating in this state. Moss v. Bjornson, 115 Idaho 165, 167, 765 P.2d 676, 678 (1988) ; I.C. § 6–1001. The panel consists of a licensed physician appointed by the board of medicine, an administrator of a licensed acute care general hospital appointed by the board of medicine if there is a claim against a hospital, a licensed resident lawyer appointed by the commissioners of the state bar, and an adult citizen of Idaho who is not a lawyer, doctor, or hospital employee appointed unanimously by the other panelists. I.C. § 6–1002. Proceedings before the panel are closed to the public and are informal with no right to conduct discovery and no record being kept of the proceedings, I.C. § 6–1003 ; no applicable rules of evidence, I.C. § 6–1001 ; and no right to be present during the presentation by other parties, or to cross-examination, rebuttal, or other customary formalities of civil trials and court proceedings, I.C. § 6–1008. Parties may be, but are not required to be, represented by counsel. I.C. § 6–1009. The applicable statute of limitations is tolled from the filing of the request for a prelitigation screening panel until thirty days after it completes its work. James v. Buck, 111 Idaho 708, 709, 727 P.2d 1136, 1137 (1986) ; I.C. § 6–1005. At the conclusion of the proceedings, the panel provides the parties with an advisory, nonbinding report indicating their view of the merits of the matter. I.C. § 6–1004. The panel appointed regarding the alleged malpractice in this case conducted its proceedings and then issued its report on April 19, 2011.

Although Plaintiff filed this action on January 20, 2011, he did not attempt to serve the summons and complaint upon any of the Defendants within six months after filing the complaint as mandated by Rule 4(a)(2) of the Idaho Rules of Civil Procedure. That rule requires a trial court to dismiss an action against a party who is not served within that time period unless the party required to effectuate service shows good cause for the failure to do so timely. Sammis v. Magnetek, Inc., 130 Idaho 342, 346, 941 P.2d 314, 318 (1997).

On August 16, 2011, defendant Eastern Idaho Health Services, Inc., filed a motion to dismiss this action as to it for the failure of Plaintiff to serve the summons and complaint upon it within the six-month period. On August 24, 2011, Plaintiff filed a motion asking the district court to stay this lawsuit "nunc pro tunc from January 24, 2011, to April 19, 2011, or, alternatively, to extend [Plaintiff's] deadline for serving all Defendants to this lawsuit from July 19, 2011, to October 12, 2011." On August 24, 2011, defendant David Chamberlain moved to dismiss this action against him for failure to serve him within the six-month period.

After the motions were heard, the district court entered an order on September 29, 2011, denying Plaintiff's motions and granting the motions to dismiss filed by Eastern Idaho Health Services and Dr. Chamberlain. On October 3, 2011, the court entered a partial judgment dismissing the complaint without prejudice as to these two Defendants.

On November 14, 2011, Plaintiff filed a notice of appeal. Because the partial judgment was not yet final due to the fact that there was no judgment resolving the claims against the remaining defendants, this Court issued a notice that the appeal would be dismissed. On December 11, 2011, the district court entered an amended judgment dismissing this action without prejudice as to all Defendants. Plaintiff then filed an amended notice of appeal timely appealing both the initial judgment and the amended judgment.

II.Did the District Court Err in Applying the Good–Cause Standard Set Forth in Rule 4(a)(2) Instead of the Excusable–Neglect Standard Set Forth in Rule 6(b) ?

Rule 4(a)(2) of the Idaho Rules of Civil Procedure provides that an action shall be dismissed without prejudice as to a party who is not served with the summons and complaint within six months of the filing of the complaint, unless the party required to make such service can show good cause why service was not made within that time period.¹ "[T]he determination of whether good cause exists is a factual one.... Because this is a factual determination, the appropriate standard of review is the same as that used to review an order granting summary judgment." Sammis, 130 Idaho at 346, 941 P.2d at 318.

"By its terms, Rule 4(a)(2) imposes the burden of demonstrating good cause on the party who failed to effect timely service...." Id. To show good cause, such party must present sworn testimony by affidavit or otherwise setting forth facts that show good cause for failing to serve the summons and complaint timely. As we held long ago in similar cases, a party seeking relief based upon mistake, inadvertence, surprise, or excusable neglect must provide an affidavit or other sworn testimony that sets forth facts that are claimed to constitute such mistake, inadvertence, surprise, or excusable neglect so that the trial court can determine whether those facts meet the required standard for granting the relief. Kingsbury v. Brown, 60 Idaho 464, 472–73, 92 P.2d 1053, 1056–57 (1939) ; Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 525–26, 44 P.2d 1099, 1100 (1935) ; Hall v. Whittier, 20 Idaho 120, 126–27, 116 P. 1031, 1033 (1911).

In this case, Plaintiff did not present any sworn testimony to the district court setting forth facts in an effort to show good cause. He merely presented argument unsupported by facts in the record. He contended that he thought the litigation would be automatically stayed pursuant to Idaho Code section 6–1006, which would have given him more time to serve the summons and complaint on the Defendants, and that he was unaware of this Court's decision to the contrary in Rudd v. Merritt, 138 Idaho 526, 66 P.3d 230 (2003).²

Because Plaintiff did not to present any sworn testimony alleging facts that he contends constituted good cause for failing to serve the Defendants timely, he failed to even create a record upon which the issue of good cause could have been presented to the district court. It was his burden to do so. Absent even an attempt to put facts in the record explaining why Plaintiff failed to serve the Defendants timely, the only conclusion that the district court could have reached was that there was no good cause. As we stated in Kingsbury, in reversing the order of the district court setting aside a default judgment against the respondent based upon his affidavit that did not state any facts attempting to excuse or justify his failure to file an answer timely, "[T]he only conclusion that can be drawn from the facts and circumstances and respondent's affidavit is that he intentionally failed to answer within the time allowed." 60 Idaho at 473, 92 P.2d at 1057.

Plaintiff argued in the district court that pursuant to Rule 6(b) he should only have been required to show excusable neglect. The district court ruled to the contrary, and Plaintiff challenges that ruling on appeal. Rule 6(b) provides that when the rules of civil procedure require that an act be done within a specified time, the court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect."³ However, because Plaintiff failed to put in the record any sworn facts regarding the reason he failed to serve the Defendants timely, he has not even presented a record from which it could be determined whether there was excusable neglect, even if that standard were applicable.

For future guidance, however, we will address Plaintiff's argument that the excusable-neglect standard in Rule 6(b) should apply rather than the good-cause standard in Rule 4(a)(2). In making this argument, Plaintiff relies upon the last clause in Rule 6(b) stating that "the time may not be extended for taking any action under rules 50(b), 52(b), 59(b), (d), (e), and 60(b) except to the extent and under the conditions stated in them." He argues that if the excusable-neglect standard in Rule 6(b) was not intended to apply to Rule 4(a)(2), then that rule should also have been listed in this clause.

Each of Rules 50(b), 52(b), 59(b), (d), (e), ...