Arizona Court of Appeals Division One Holds That When a Party Improperly Names a Non-Jural Entity, but Properly Serves the Associated Jural Entity, Dismissal is Not Warranted.

Plaintiff filed a complaint against the Maricopa Medical Center (“MMC”), the City of Phoenix Police Department (“Police Department”), and various officers of the Police Department (the “Officers”), alleging common law tort claims arising out of an altercation with the officers in February 2008.  The Police Department moved to dismiss the claim on the grounds that it is a non-jural entity; the trial court granted this motion. MMC also filed a motion to dismiss on the ground that it is a non-jural entity, that Plaintiff did not file a notice of claim statute, A.R.S. § 12-821.01, and that Plaintiff did not certify whether expert testimony was necessary pursuant to A.R.S. § 12-2603(A).  The trial court granted this motion, finding that Plaintiff had not complied with A.R.S. § 12-821.01.  The Officers also filed a motion to dismiss, arguing that Plaintiff failed to comply with A.R.S. § 12-821.01, which the trial court granted.  Plaintiff timely appealed. 

On appeal, Plaintiff argued that the trial court erred in determining that the Police Department and MMC were non-jural entities and that he failed to comply with A.R.S. § 12-821.0.  He also argued that the superior court was biased against him in violation of his due process rights. Because documents outside of the pleadings were considered in connection with each motion, the Arizona Appeals Court treated the motions as motions for summary judgment.  The Court affirmed the entry of summary judgment in favor of the Officers, reversed the entry of summary judgment in favor of the Police Department and MMC, and remanded to the trial court for further proceedings.  

The Court held that the Police Department and MMC should not have been dismissed from the case as non-jural entities.  The Court reasoned that although Plaintiff should have named the City of Phoenix rather than the Police Department, and should have named Maricopa County Special Health Care District rather than MMC, these purely technical errors do not warrant dismissal, but rather warrant amendment of the Complaint pursuant to Arizona Rule of Civil Procedure 10(f).    The summons for the Police Department was served on a person authorized to accept service in the office of the Clerk of the City of Phoenix and the summons for MMC was served on the Assistant Clerk of the Board at the office for the Clerk of the Maricopa County Special Health Care District, thus, the proper entities received notice of the lawsuit.  The Court further found no evidence of prejudice to the City of Phoenix or the Maricopa County Special Health Care District in the record.   

With regard to the Officers, the Court held that Plaintiff was required to deliver a notice of claim to each Officer personally, or to a person of suitable age and discretion residing with the officer, or to the Officer’s agent.  Because each of the Officers filed an affidavit that they did not receive a notice of claim, nor had they appointed an agent for service of process, and Plaintiff did not proffer any evidence that he personally served the Officers, the Court found that the trial court properly granted summary judgment in favor of the Officers.  Plaintiff raised a number of additional arguments related to the trial court’s finding that he failed to comply with A.R.S. § 12-821.01.  In connection with these arguments, the Court of Appeals held that (1) substantial compliance with the statute is insufficient; (2) excusable neglect no longer applies to relieve compliance with the statute; (3)Plaintiff waived his anti-abrogation argument under Article 18 § 6 of the Arizona Constitution by failing to raise it below; (4) the notice of claim statute is not unconstitutionally vague; (5) the superior court had jurisdiction to determine whether he complied with the statute; and (6) Plaintiff alleged no facts to support his claim that the superior court judge was biased against him. 

In connection with the Maricopa County Special Health District’s argument on appeal that dismissal was warranted because Plaintiff sent the notice of claim to MMC rather than the entire board of directors of the District, the Court found that the notice of claim was sent to the proper address for the Clerk of the District, it was signed for, and neither party presented evidence on the identity of who signed for it. Moreover, because the Court had not received any briefing on the issue of who in particular was authorized to accept service for the District and whether Arizona Rule of Civil Procedure 4.1(j) or 4.1(i) applies to the District, the court declined to decide the issue.  The Court further held that Plaintiff’s failure to certify whether expert testimony was necessary did not warrant dismissal.  

Judge Kessler authored the opinion, Judges Irvine and Brown concurred