Steven Sholem v. Hons. gass/contes/melissa Langevin ( 2020 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STEVEN SHOLEM, M.D.,
Petitioner,
V.
HON. DAVID GASS AND HON. CONNIE CONTES, JUDGES OF THE SUPERIOR
COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA
Respondent Judges,
MELISSA LANGEVIN,
Real Party in Interest.
No. CV-19-0149-PR
Filed March 30, 2020
Appeal from the Superior Court in Maricopa County
The Honorable David Gass, Judge
The Honorable Connie Contes, Judge
No. CV2017-007288
AFFIRMED
Order of the Court of Appeals, Division One
1 CA-SA 19-0086
COUNSEL:
Eileen Dennis GilBride, (argued) Jones, Skelton & Hochuli, P.L.C., Phoenix;
Andrew Rosenzweig, Michael F. Tamm, Quintairos, Prieto, Wood & Boyer
P.A., Phoenix, Attorneys for Steven Sholem
Douglas C. Erickson, Daniel D. Maynard, (argued) Maynard Cronin
Erickson Curran & Reiter, P.L.C., Phoenix, Attorneys for Melissa Langevin
Jeffrey C. Warren, Amanda Heitz, David T. Lundmark, Claudia Ionescu,
Bowman and Brooke, LLP, Phoenix, Attorneys for Amicus Curiae Arizona
Association of Defense Counsel
SHOLEM V. HONS. GASS/CONTES/LANGEVIN
Opinion of the Court
JUSTICE GOULD authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES
BOLICK, LOPEZ, BEENE and MONTGOMERY joined.
JUSTICE GOULD, opinion of the Court:
¶1 Arizona Rule of Civil Procedure Rule 4(i) provides that if a
plaintiff does not serve a defendant with a summons and complaint within
ninety days of filing the complaint the court “must” dismiss the case
without prejudice. Such a dismissal for untimely service is referred to as
“abatement.” In this case, we address the grounds for obtaining an
extension for service under Rule 4(i) and its interplay with Rule 6(b), the
generally applicable rule for extending time.
¶2 We hold that under Rule 4(i), if a plaintiff shows good cause
for failing to serve a defendant within ninety days, a court is required to
extend the time for service. However, Rule 4(i) also allows a court, in its
discretion, to extend the period for service without a plaintiff showing good
cause. Additionally, we hold that if the ninety-day period for service has
expired, a plaintiff seeking an extension under Rule 4(i) need not show that
the delay in service or the delay in requesting an extension was due to
excusable neglect, as is required under Arizona Rule of Civil Procedure
6(b)(1)(B). Finally, we provide guidance as to what constitutes good cause,
as well as a non-exhaustive list of factors for courts to consider in exercising
their discretion under Rule 4(i).
I.
¶3 In 1996, Melissa Langevin’s parents sued Phoenix Baptist
Hospital and Medical Center, Dr. Steven Sholem, and Dr. John Carlson for
negligently exposing Langevin’s mother to radiation while she was
pregnant with Langevin. The parties settled the day before trial after
completing discovery.
¶4 Twenty years later, Langevin sued the same hospital and
doctors. On June 9, 2017, Langevin filed her complaint against Sholem.
Pursuant to Rule 4(i), she had until September 7, 2017 (ninety days) to serve
him. Langevin attempted to serve Sholem at his residence six times
between July 27, 2017 and August 11, 2017. The process server observed
that during each service attempt, the blinds were closed, the porch light was
on, and no vehicles were in the driveway. However, he also noted that
someone removed a package addressed to Sholem from the porch on July
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Opinion of the Court
27 or 28. Sholem later submitted an affidavit avowing that he was out of
town for one week in “early August 2017” and was not evading service.
¶5 In May 2018, more than ten months after the ninety-day
deadline had expired, Langevin filed a motion “pursuant to Rule 4(i)”
seeking to extend the time for service. In her motion, Langevin claimed that
she had attempted to serve Sholem multiple times at his last known
address. The court determined there was good cause to grant the motion
and extended the deadline for service until August 31, 2018.
¶6 On July 17, 2018, over one year after filing the complaint,
Langevin served Sholem. He moved to dismiss, arguing that the complaint
abated because Langevin: (1) failed to serve the summons and complaint
within Rule 4(i)’s ninety-day period; and (2) did not show good cause for
extending the deadline. In response, Langevin argued that Rule 4(i)
permitted the court to extend the deadline with or without good cause.
Further, Langevin argued that she had made diligent efforts to serve
Sholem, and that she had gained no “tactical advantage” by failing to serve
the complaint earlier. The trial court, without making any findings, denied
Sholem’s motion to dismiss and his subsequent motion for reconsideration.
¶7 Sholem filed a special action with the court of appeals, which
declined to accept jurisdiction. We accepted review of Sholem’s petition for
review because this case involves the construction of Rule 4(i), an issue of
statewide importance. We have jurisdiction pursuant to article 6, section
5(3) of the Arizona Constitution.
II.
¶8 Sholem argues that Langevin was required to show good
cause for extending the time for service under Rule 4(i). Additionally, he
asserts that Langevin was required to show that her failure to seek an
extension within the ninety-day period was due to excusable neglect, as
required by Rule 6(b)(1)(B).
¶9 We review the construction of a rule de novo. Flynn v.
Campbell, 243 Ariz. 76, 80 ¶ 7 (2017). In construing a rule, we apply the
“usual, ordinary meaning” of its words “unless doing so creates an absurd
result.” Haywood Sec., Inc. v. Ehrlich, 214 Ariz. 114, 116 ¶ 10 (2007) (citation
omitted) (internal quotation marks omitted); see also Preston v. Kindred
Hosps. W., L.L.C., 226 Ariz. 391, 393 ¶ 8 (2011) (stating that we apply
“principles of statutory construction” when interpreting a rule).
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Opinion of the Court
A.
¶10 Arizona has had an abatement rule since statehood. See
Revised Statutes of Arizona (Civil Code) § 460 (1913) (“An action shall abate
if the summons be not issued and served . . . within one year from the filing
of the complaint.”); McCulloch v. W. Land & Cattle Co., 27 Ariz. 154, 157
(1924) (stating that a rule providing for abatement of an action within one
year from the filing of the complaint “was part of the act of the first
Legislature of its second special session”).
¶11 The purpose of the abatement rule is to encourage the speedy
resolution of lawsuits and protect defendants from prejudice. Murphey v.
Valenzuela, 95 Ariz. 30, 32–33, 32 n.1 (1963). This purpose comports with
our courts’ overarching goal to timely, fairly, and inexpensively resolve
lawsuits. See Ariz. R. Civ. P. 1. The abatement rule recognizes that when a
plaintiff allows a lawsuit to “lie dormant” there is a “danger” that
defendants
might be greatly and wrongfully prejudiced by being brought
into court long after the subject-matter of controversy had
passed out of their minds, when perhaps witnesses are dead,
and testimony lost, and yet the statute of limitations might not
be available as a defense.
Valenzuela, 95 Ariz. at 32 n.1 (citation omitted).
¶12 The abatement rule was eventually codified as Rule 6(f) of the
Arizona Rules of Civil Procedure. See Ariz. R. Civ. P. 6(f) (1956). Rule 6(f),
which remained unchanged until 1992, provided that, “[a]n action shall
abate if the summons is not issued and served . . . within one year of the
filing of the complaint.” Although Rule 6(f) stated that an action “shall
abate” after one year, this provision was not self-executing. Rather, a
plaintiff could move to extend the time for service for “cause shown.”
Garcia v. Frey, 7 Ariz. App. 601, 605 (1968); see also Grobe v. McBryde, 105
Ariz. 577, 579 (1970) (holding that the time for service under Rule 6(f) may
be extended for good cause). Additionally, if “the one-year limit of Rule
6(f)” expired, plaintiffs were required, pursuant to Rule 6(b), to show that
their delay was due to “excusable neglect.” Garcia, 7 Ariz. App. at 605.
¶13 The abatement rule has undergone several material changes
in recent years. Most of the recent changes have been made to conform
Arizona’s abatement rule to the Federal Rule. Thus, for example, before
1983, federal courts applied a flexible “due diligence” standard for service,
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Opinion of the Court
and there was no specific time limit for serving the summons and complaint
after a complaint was filed. See 96 F.R.D. 81, “Changes in Federal Summons
Under Amended Rule 4 of the Federal Rules of Civil Procedure,“ 101, 109,
119 (1983) (discussing the pre-1983 standards for service of process).
However, when Federal Rule 4(j) was promulgated in 1983, it provided a
120-day time limit for service and required a showing of good cause for any
extension of that limit. See id. at 86; Henderson v. United States, 517 U.S. 654,
662–63 (1996) (stating that under the 1983 amendments to Federal Rule 4(j)
the time to serve a complaint could only be extended upon a showing of
“good cause”).
¶14 In 1992, the Arizona rule was amended to conform with
Federal Rule 4(j). See Ariz. R. Civ. P. 4(i), December 1991 Amendment. Rule
6(f) was renumbered as Rule 4(i) and, as amended, stated:
If 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 . . . .
The 1992 version of Rule 4(i), like its federal counterpart, provided a 120-
day time limit for service and required a showing of good cause for an
extension. See Maher v. Urman, 211 Ariz. 543, 547 ¶ 8 (App. 2005) (stating
that the 1992 version of Rule 4(i) “unambiguously required a showing of
good cause in order to extend the time for service”).
¶15 Federal Rule 4(j) was amended and renumbered as Rule 4(m)
in 1993. Thereafter, in 1996, Arizona Rule 4(i) was also amended. As
amended, Arizona Rule 4(i) was identical to Federal Rule 4(m). See Maher,
211 Ariz. at 547 ¶ 9 (noting that Rule 4(i), as amended in 1996, is “identical”
to Federal Rule 4(m)). And, once again, when Federal Rule 4(m) was
amended in 2015 to reduce the time for service from 120 to 90 days, Arizona
followed suit in 2017, amending Rule 4(i) to shorten the service period from
120 to 90 days. See Fed. R. Civ. P. 4(m) (2015); Ariz. R. Civ. P. 4(i) (2017).
¶16 Thus, the current version of Rule 4(i), which is identical to
current Federal Rule 4(m), provides that:
If a defendant is not served with process within 90 days after
the complaint is filed, the court--on motion, or on its own after
notice to the plaintiff--must dismiss the action without
prejudice against that defendant or order that service be made
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Opinion of the Court
within a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service for
an appropriate period.
B.
¶17 The plain language of Rule 4(i) permits extensions absent a
showing of good cause. The first clause states that if the period for service
has expired, a court must either dismiss the complaint “or order that service
be made within a specified time.” Thus, by its terms, the first clause does
not require a plaintiff to show good cause for an extension. In contrast, the
second clause of the rule specifically states, “[b]ut if the plaintiff shows
good cause for the failure, the court must extend the time for service”.
Significantly, by including the word “but” to introduce the second clause,
the drafters signaled that a showing of good cause is an exception to and
different from ordering an extension under the first clause. See Oxford
English Dictionary (2d ed. 1989) (defining “but” as meaning “[w]ith the
exception of, apart from, except, save,” and, as used “[i]n a simple sentence,
introducing a word, phrase . . . which is excepted from the general
statement”); see also Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d
Cir. 1995) (stating that, in construing Federal Rule 4(m), the second clause
of the rule provides an exception to the first clause, and that “the second
clause notes that if good cause exists, the district court has no choice but to
extend time for service.”).
¶18 Thus, Rule 4(i) provides a mandatory extension based on
good cause and a discretionary extension without a showing of good cause.
See Maher, 211 Ariz. at 547–48 ¶¶ 8, 14 (stating that Rule 4(i), as amended in
1996, provides a mandatory extension based on good cause as well as
authorizes “a court to ‘direct that service be effected within a specified
time,’ apparently with or without a predicate showing of good cause”).
¶19 This construction is supported by cases construing Federal
Rule 4(m). Id. at ¶¶ 9–10 (noting that because Rule 4(i), as amended in 1996,
is “identical” to Federal Rule 4(m), great weight should be accorded to
“[f]ederal courts interpreting” Rule 4(m)); see also Anserv Ins. Servs, Inc. v.
Albrecht, 192 Ariz. 48, 49 (1998) quoting Edwards v. Young, 107 Ariz. 283, 284
(1971) (“Because Arizona has substantially adopted the Federal Rules of
Civil Procedure, we give great weight to the federal interpretations of the
rules.”).
¶20 For example, in Henderson the United States Supreme Court
stated that under the “1993 amendments to the [Federal] Rules, courts have
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Opinion of the Court
been accorded discretion to enlarge the 120-day period even if there is no
good cause shown.” 517 U.S. at 662 (citation omitted). Likewise, in Efaw v.
Williams, 473 F.3d 1038, 1040 (9th Cir. 2007), the court stated that although
“Rule 4(m), as amended in 1993, requires a district court to grant an
extension of time when the plaintiff shows good cause for the delay,” the
rule also “permits the district court to grant an extension even in the absence
of good cause.” See United States v. McLaughlin, 470 F.3d 698, 700 (7th Cir.
2006) (holding that “if good cause for the delay is shown, the court must
extend the time for service, while if good cause is not shown, the court has
a choice between dismissing the suit and giving the plaintiff more time”);
see also 21 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, § 1137 & n.22 (4th ed. 1998 & 2019 Supp.) (stating that “the
overwhelming majority of federal courts . . . embrace the view that a district
court has discretion under Rule 4(m) to dismiss a complaint or to allow the
plaintiff to cure a defect in service of process even in the absence of good
cause,” and citing cases in support of this statement); see also Fed. R. Civ. P.
4(m), 1993 Advisory Committee Notes (stating that Rule 4(m), as amended,
“authorizes the court to relieve a plaintiff of the consequences . . . of this
subdivision even if there is no good cause shown . . .”).
¶21 We recognize that in Toy v. Katz, the court of appeals stated,
in a footnote lacking authority, that the 1996 amendment to Rule 4(i) did
“not affect its substance.” 192 Ariz. 73, 82 n.1 (App. 1997). As a result,
consistent with the pre-1996 version of Rule 4(i), Katz mistakenly stated that
a showing of good cause is required for an extension. Id. at 84. Even so,
Katz recognized there may be “some extenuating circumstance[s]” that
compel a court “in the interest of justice, to allow the plaintiff’s claim to go
forward, even in the absence of good cause.” Id. In any event, to avoid
confusion, we disapprove of Katz to the extent it: (1) characterizes the 1996
amendment to Rule 4(i) as non-substantive; and (2) interprets Rule 4(i) as
always requiring good cause for an extension.
¶22 Accordingly, we conclude that under Rule 4(i), a trial court
has the authority to extend the period for service without a showing of good
cause. Before addressing whether the court here properly exercised that
authority, we address Sholem’s argument that Rule 6(b)(1)(B) applies to
requests to extend the service deadline.
C.
¶23 Sholem argues that the trial court abused its discretion
because Langevin did not, pursuant to Rule 6(b)(1)(B), show excusable
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Opinion of the Court
neglect for failing to request an extension within the ninety-day period. We
disagree.
¶24 Rule 6(b)(1) is the generally applicable rule for extending time
in civil cases. It provides, in relevant part:
When an act may or must be done within a specified time, the
court may, for good cause, extend the time: (A) with or
without motion or notice if the court acts, or if a request is
made, before the original time or its extension expires; or (B)
on motion made after the time has expired if the party failed
to act because of excusable neglect.
¶25 Before the 1996 amendment to Rule 4(i), courts held that Rule
6(b)(1)(B)’s excusable neglect standard applied if a plaintiff requested an
extension after the deadline for service had expired. See Air Power, Inc., v.
Superior Court, 142 Ariz. 492, 494 (App. 1984) (applying Rule 6(b) to former
Rule 6(f) and stating that a plaintiff must show “excusable neglect” if he
requests an extension after the time for service has expired); Garcia, 7 Ariz.
App. at 605 (same). However, as noted above, the 1996 amendment
substantively changed Rule 4(i). Supra, ¶¶ 15–19. Thus, reliance on cases
interpreting pre-1996 versions of the abatement rule are of limited value in
construing the current version of Rule 4(i).
¶26 We conclude that based on the 1996 amendment, the
language of Rule 4(i) and Rule 6(b) conflicts, and cannot be harmonized.
For example, under Rule 4(i), if a plaintiff shows good cause for an
extension, the court “must” grant an extension. Supra, ¶¶ 16–18. In
contrast, under Rule 6(b), if a plaintiff shows good cause for an extension, a
court “may,” but is not required to, grant the request. See McLaughlin, 470
F.3d at 700 (stating in contrast to Federal Rule 4(m), Federal Rule 6(b)
[which also parallels Arizona’s Rule 6(b)] does not require an extension
even if a plaintiff shows good cause and excusable neglect).
¶27 The rules conflict in other ways as well. The excusable neglect
standard of Rule 6(b) requires parties to explain why they did not perform
“an act . . . [that] must be done within a specified time.” However, although
Rule 4(i) states that a defendant must be served within ninety days, it does
not specify any time in which a plaintiff must file a request—with or
without cause—to extend the service time. Indeed, Rule 4(i) only addresses
requests for extensions after the ninety-day period has expired. For
example, a court may, in its discretion, grant an extension “[i]f a defendant
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Opinion of the Court
is not served with process within 90 days after the complaint is filed.” Id.
(emphasis added). Likewise, a court must grant an extension “if the
plaintiff shows good cause for the failure” to serve a defendant within the
ninety-day period. Id. (emphasis added). This language necessarily
contemplates an extension request can be made after the service time has
expired. See id. And, as a result, applying the excusable neglect standard
to Rule 4(i) creates an absurd result: plaintiffs must show excusable neglect
for failing to request an extension within the ninety-day period when,
under Rule 4(i), the grounds for obtaining an extension can apply to
requests made after the ninety-day period has expired. See Haywood Sec.,
Inc., 214 Ariz. at 116 ¶ 10 (stating that we construe the terms of a rule
according to their ordinary meaning “unless doing so creates an absurd
result” (citation omitted)).
¶28 We therefore conclude that because Rule 4(i) and Rule 6(b)
impose conflicting standards, they cannot both control the granting of an
extension. Accordingly, Rule 4(i)—the rule specific to service of process—
must take precedence. Cosper v. Rea ex rel. Cty. of Maricopa, 228 Ariz. 555,
557 ¶ 10 (2012) (“When a specific rule conflicts with a general one, the
specific rule controls.”); see also Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 183 (2012) (stating that when conflicting
provisions cannot be reconciled “the specific provision is treated as an
exception to the general rule”).
¶29 Sholem argues, however, that excusable neglect must apply
to extensions under Rule 4(i) because “Rule 6(b)(2) contains . . . exceptions
to Rule 6(b)(1), and service under Rule 4(i) is not one of them.” But these
exceptions were in place before the 1996 amendment to Rule 4(i), which
provided the court discretion to extend the service deadline absent good
cause. We are therefore unpersuaded that Rule 6(b)(2)’s omission of Rule
4(i) as an exception reflects the intent to apply Rule 6(b)(1)(B)’s excusable
neglect requirement to Rule 4(i). See Ariz. R. Civ. P. 6(b) (1994). In any case,
Rule 4(i) specifically covers extensions of deadlines for service of process
that are inconsistent with Rule 6(b). Therefore, only Rule 4(i) applies here.
¶30 Finally, we caution that Rule 6(b)(1)(B)’s excusable neglect
standard may apply to requests made after a court-ordered extended
deadline has expired. Under these circumstances, Rule 4(i) would not
apply because the deadline sought to be extended is not the ninety-day
deadline addressed by that rule. Instead, the deadline is one set forth by
court order, and the general provisions in Rule 6(b) therefore apply. Thus,
a plaintiff who fails to meet the extended deadline may only receive an
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Opinion of the Court
additional extension upon a showing of excusable neglect under Rule 6(b).
McLaughlin, 470 F.3d at 700 (stating that if a plaintiff “failed to meet the new
deadline” granted under Rule 4(m), the excusable neglect standard in
Federal Rule 6(b)(2) would “come into play” as to any additional extension
requests).
III.
¶31 Sholem argues that even if Rule 4(i) provides for an extension
of service without a showing of good cause, the trial court erred in denying
his motion to dismiss because there is no evidence showing either good
cause or discretionary grounds for an extension.
¶32 We review a trial court’s order denying a motion to dismiss
on the grounds of abatement for an abuse of discretion. Snow v. Steele, 121
Ariz. 82, 84, 86 (1978); Air Power, Inc., 142 Ariz. at 493. Here, the trial court
did not state whether its ruling was based on a finding of good cause or its
discretionary authority under Rule 4(i), which would have assisted our
review. Nonetheless, we may affirm the trial court on any basis supported
by the record. State v. Robinson, 153 Ariz. 191, 199 (1987); City of Phoenix v.
Geyler, 144 Ariz. 323, 330 (1985).
A.
¶33 Proving good cause under Rule 4(i) requires a plaintiff to
show that, under the specific facts of the case, she exercised reasonable
diligence in trying to serve the defendant. See Grobe, 105 Ariz. at 579 (stating
that former Rule 6(f) “places a legal duty upon a plaintiff to exercise due
diligence in serving a defendant within” the prescribed time period); Maher,
211 Ariz. at 548 ¶ 14 (“[T]o show good cause to extend time . . . a plaintiff
must demonstrate . . . diligence in trying to serve the defendant.”).
¶34 To show reasonable diligence, a plaintiff must provide the
court with a valid reason or explanation for failing to serve the defendant
within the allotted time period. See Snow, 121 Ariz. at 83–84 (stating that
there was no good cause for an extension where plaintiff supplied no
“satisfactory reason” for missing the service deadline); Air Power, Inc., 142
Ariz. at 494, 496 (holding that there was no good cause shown where
plaintiff failed to provide a valid reason or explanation “as to why service
was not made within the one-year period”); see also Boley v. Kaymark, 123
F.3d 756, 758 (3rd Cir. 1997) (stating that under Federal Rule 4(m), “[i]n
determining whether good cause exists, a court’s ‘primary focus is on the
plaintiff’s reasons for not complying with the time limit in the first place’”
(citation omitted)). Ignorance of the rule, mistake, and inadvertence do not
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Opinion of the Court
constitute a valid reason for missing the service deadline. See Mann v.
Castiel, 681 F.3d 368, 376 (D.C. Cir. 2012).
¶35 Here, Langevin claims that she did not timely serve Sholem
because she was busy trying to: (1) locate Dr. Carlson (whom she
subsequently determined was deceased); and (2) identify the proper
hospital entity to name as a defendant.
¶36 We conclude that this is not a valid reason for failing to serve
Sholem within the ninety-day time period. The fact that Langevin’s
attorney was busy with other parties and claims is not a valid reason for
failing to timely serve Sholem. See In re Sheehan, 253 F.3d 507, 512 (9th Cir.
2001) (holding there was no good cause shown where plaintiff claimed he
missed the service deadline due to “his attorney’s busy schedule”).
¶37 Langevin’s explanation also fails because it is not based on a
circumstance outside her control. Specifically, a valid reason generally
involves a circumstance such as “sudden illness, natural catastrophe, or
[defendant’s] evasion of service of process,” all of which are outside a
plaintiff’s control. Gambino v. Vill. of Oakbrook, 164 F.R.D. 271, 274 (M.D. Fla.
1995); see also Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d 1277, 1281
(11th Cir. 2007) (“Good cause exists ‘only when some outside factor[,] such
as reliance on faulty advice . . . prevented service.’” (citation omitted)).
¶38 Langevin also did not act diligently. Her attempts to serve
Sholem were limited to six attempts over fourteen days of the allotted
ninety-day period. However, abandoning service after a few unsuccessful
attempts does not constitute diligence. See Riley v. Superior Court, 116 Ariz.
89, 91 (App. 1977) (stating plaintiffs failed, in part, to exercise reasonable
diligence because they made only one attempt to serve defendants, who
had moved to China, while they were in the United States); see also Barrett
v. City of Allentown, 152 F.R.D. 46, 48–49 (E.D. Pa. 1993) (stating there was
no good cause for failure to make proper service under former Rule 4(j)
where plaintiff made two attempts to serve the defendants with an original
complaint and one attempt to serve the amended complaint). Additionally,
diligence generally requires a plaintiff to engage in multiple attempts to
serve the defendant throughout the allotted time period. See D’Amario v.
Russo, 750 F. Supp. 560, 563–64 (D.R.I. 1990) (finding good cause shown
where plaintiff attempted service on “numerous occasions throughout the
month”); cf. Saucedo v. Engelbrecht, 149 Ariz. 18, 19 (App. 1986) (finding
diligence sufficient to satisfy due process and allow service by publication
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Opinion of the Court
when the plaintiff made several attempts over eight months to locate and
serve defendant).
¶39 Finally, Langevin’s lack of diligence is also evidenced by her
failure to either attempt service at a different location, such as Sholem’s
business, or attempt to serve Sholem using an alternative means of service,
such as mail. Compare D’Amario, 750 F. Supp. at 563–64 (finding good cause
where plaintiff attempted to serve defendants by mail and personally by
constable, and petitioned the court to appoint a U.S. marshal to serve
defendants), with Lovelace v. Acme Mkts., Inc., 820 F.2d 81, 85 (3d Cir. 1987)
(finding no good cause where the plaintiff did not pursue alternative means
to effect timely service), and Ricci v. Ricci, 689 A.2d 1051, 1053 (R.I. 1997)
(finding no good cause where plaintiff unsuccessfully attempted to serve
the defendant at her home for several months without attempting
alternative means of service).
¶40 Accordingly, because Langevin failed to offer a valid reason
for her failure and make reasonably diligent efforts to serve Sholem, there
was no good cause for an extension under Rule 4(i). As a result, we turn to
whether there were discretionary grounds in the record to deny Sholem’s
motion to dismiss.
B.
¶41 Although Rule 4(i) provides a court discretion to grant an
extension without good cause shown, this discretion is not “limitless.”
Efaw, 473 F.3d at 1041; see also Mann v. Castiel, 729 F. Supp. 2d 191, 198
(D.D.C. 2010) (stating that under Federal Rule 4(m), “plaintiffs need not
show good cause, but they must still show some cause as to why the Court
should not dismiss their case.”) (internal quotation marks omitted). As an
initial matter, a court’s discretionary finding must be based on facts
contained in the record. See United Imps. and Exps., Inc. v. Superior Court, 134
Ariz. 43, 46 (1982), abrogated on other grounds by Gonzalez v. Nguyen, 243 Ariz.
531 (2018) (“A discretionary finding of fact based on no evidence is arbitrary
and an abuse of discretion.”).
¶42 In determining whether to grant a discretionary extension,
courts have considered several factors, including whether: (1) the
applicable statute of limitations bars the plaintiff from re-filing the action;
(2) the defendant evaded service; and (3) the defendant would be
prejudiced if the court grants the extension. See Efaw, 473 F.3d at 1041
(stating that the statute of limitations and prejudice are discretionary factors
a court may consider under Federal Rule 4(m)); McLaughlin, 470 F.3d at 701
12
SHOLEM V. HONS. GASS/CONTES/LANGEVIN
Opinion of the Court
(discussing the discretionary factors of prejudice and the statute of
limitations); Horenkamp v. Van Winkle and Co., Inc., 402 F.3d 1129, 1132 (11th
Cir. 2005) (stating that prejudice, evasion of service, and the statute of
limitations are discretionary factors a court may consider under Federal
Rule 4(m)); see also Fed. R. Civ. P. 4, Advisory Committee Note to 1993
Amendments, Subdivision (m) (“Relief may be justified, for example, if the
applicable statute of limitations would bar the re-filed action, or if the
defendant is evading service or conceals a defect in attempted service.”); cf.
Katz, 192 Ariz. at 84–85 (holding that under the pre-1996 version of Rule
4(i), “extenuating circumstance[s]” existed, despite the absence of good
cause, to deny defendant’s motion to dismiss on the grounds of abatement
where the defendant was not prejudiced by the delay).
¶43 Sholem argues that Langevin waived, as a discretionary
factor, that she is barred by the statute of limitations from refiling her
complaint. We agree. The record shows that Langevin never argued or
presented any evidence on this issue to the trial court. Geronimo Hotel &
Lodge v. Putzi, 151 Ariz. 477, 478 (1986) (stating that arguments not
presented in the trial court are not preserved for appeal).
¶44 However, there is no evidence in the record showing that
Sholem was prejudiced by Langevin’s untimely service. Specifically, there
is no evidence showing that due to Langevin’s delay, witnesses are
unavailable or that evidence has been lost. See Boley, 123 F.3d at 759 (stating
that a finding of prejudice is “limited to circumstances in which delay
impaired a defendant’s ability to defend”); see also Efaw, 473 F.3d at 1041
(finding prejudice where service was delayed by seven years, the only
eyewitness died, and the memories of all witnesses faded). At most,
Sholem has simply lost the procedural advantage of having this case
dismissed on the grounds of abatement, which does not qualify as a
showing of prejudice. Boley, 123 F.3d at 759.
¶45 Finally, we note there is some evidence in the record
indicating that Sholem may have been home when Langevin attempted
service, and therefore was possibly evading service. Sholem’s avowal that
he was out of town for “approximately one week” in “early August” leaves
open the possibility that he was home at some point during July 27, 2017 to
August 11, 2017 when Langevin was attempting service. This inference is
further supported by the fact that someone removed a package from
Sholem’s doorstep on July 27 or 28, 2017.
13
SHOLEM V. HONS. GASS/CONTES/LANGEVIN
Opinion of the Court
Conclusion
¶46 Based on the above Rule 4(i) discretionary factors, we
conclude that the trial court did not abuse its discretion in denying Sholem’s
motion to dismiss. We therefore affirm the trial court’s denial of Sholem’s
motion.
14