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Sholem v. Langevin - 3/30/2020

Arizona Supreme Court held that (1) under Arizona Rule of Civil Procedure 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; (2) Rule 4(i) also allows a court, in its discretion, to extend the period for service without a plaintiff showing good cause; and (3) 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).

Plaintiff failed to serve the complaint within the ninety-day period set forth in Rule 4(i) of the Arizona Rules of Civil Procedure.  Ten months after the ninety-day period had expired, Plaintiff requested an extension of time for service.  The trial court found good cause for Plaintiff’s failure to serve and granted Plaintiff’s request.  Plaintiff successfully served Defendant.  Defendant moved to dismiss, arguing Plaintiff’s complaint abated.  The trial court denied the motion.

Defendant filed a special action, which made its way to the Supreme Court.  The case centers on the language of Rule 4(i) and Rule 6(b).  Under Rule 4(i), when a defendant is not served within 90 days, “the court . . . must dismiss the action without prejudice against that defendant or order that service be made 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.”

Considering the plain language of Rule 4(i), and the case law interpreting its federal counterpart, the Court held that when a plaintiff shows good cause for a failure to serve a defendant within the ninety-day period, the trial court is required to extend time for service; but, if a plaintiff fails to show good cause, the court still has discretion to extend time.

Under Rule 6(b)(1)(B), in general, a court may extend a deadline retroactively “after the time has expired if the party failed to act because of excusable neglect.”

The Supreme Court concluded that Rule 4(i) and Rule 6(b)(1)(B) could not be reconciled.  Rule 4(i) requires an extension where good cause is shown and, in contrast, Rule 6(b) makes an extension discretionary where good cause is shown.  And, where Rule 4(i) has no allotted time for filing an extension—and contemplates an extension being filed after the ninety-day period—Rule 6(b) requires a showing of excusable neglect to explain why a motion was not filed within the allotted time.  Because Rule 4(i) was amended after Rule 6(b) was drafted, the Court held that Rule 4(i) controls extensions of time for service of process.  However, the Court noted that if a plaintiff subsequently fails to serve within the time granted under the extension, she will need to show excusable neglect under Rule 6(b).

In dicta, the Court offered guidance on what constitutes “good cause”: a plaintiff must show that she exercised reasonable diligence in her attempts to serve the defendant throughout the allotted time and a valid reason or explanation for the failure—usually something outside the plaintiff’s control such as “sudden illness, natural catastrophe, or defendant’s evasion of service.”  “Ignorance of the rule, mistake, and inadvertence” do not suffice as good cause for delay.

Justice Gould authored the unanimous opinion.

Posted by: Payslie M. Bowman

Posted On: 4/15/2020