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Litigation News

Litigation News | 2020

Good Cause Not Required for Extension of Service Period

Ashlee Hamilton


  • Rules of civil procedure give courts discretion to significantly extend time.
  • Section leaders find the court’s ruling consistent with public policy favoring resolution of disputes based on merit.
  • They recommend that defense counsel facing extreme delays in service focus on developing a detailed record of prejudice.
Good Cause Not Required for Extension of Service Period
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A trial court may significantly extend the time for service of process without a showing of good cause. In Sholem v. Gass in and for the County of Maricopa, the plaintiff requested and received an extension of time for service months after her time had expired, despite failing to establish good cause for her delay. The rules of civil procedure give the court discretion to permit such an extension, the Arizona Supreme Court held. ABA Section of Litigation leaders find the court’s ruling consistent with public policy favoring resolution of disputes based on merit and recommend that defense counsel facing extreme delays in service focus on developing a detailed record of prejudice.

Extension Granted Despite Lack of Good Cause

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 during her pregnancy. That suit settled after completion of discovery and on the eve of trial.

In 2017, Langevin sued the same hospital and doctors in the Arizona Superior Court in Maricopa County. Under Arizona Rule of Civil Procedure (ARCP) 4(i), Langevin was required to serve the complaint within 90 days of its filing. Although she tried to serve Dr. Sholem at his residence six times between July 27, 2017, and August 11, 2017, she stopped attempting service one month before expiration of the service period. During each service attempt, the process server noticed that there were no vehicles in the driveway and the blinds were closed. However, the porch light was on and someone had removed a package addressed to Dr. Sholem from the porch from one day to the next.

More than 10 months after her time for service had expired, Langevin requested and received an extension. In her ARCP 4(i) motion, she claimed that she had attempted to serve Dr. Sholem multiple times at his last known address. The trial court extended the deadline for service. Langevin finally served Dr. Sholem on July 17, 2018—more than a year after filing the complaint.

Dr. Sholem moved to dismiss, arguing that the complaint had abated. First, he argued that Langevin failed to serve him within the 90-day period required by ARCP 4(i). Second, he alleged Langevin failed to show good cause for extending the deadline. But the trial court denied Dr. Sholem’s motion to dismiss and his subsequent motion for reconsideration without making any findings. The trial court did not state whether its ruling was based on a finding of good cause or its discretionary authority under ARCP 4(i). After the court of appeals declined to accept jurisdiction, the state supreme court accepted review because the case involved the construction of ARCP 4(i).

The More Specific Rule Controls

The supreme court concluded that the trial court did not abuse its discretion in denying Dr. Sholem’s motion to dismiss, there was evidence he may have been evading service, and that he was not prejudiced by the delay. It held that ARCP 4(i) does not require a showing of good cause for extensions. Instead, Rule 4(i) requires an extension when based on good cause and permits a discretionary extension without a showing of good cause.

The supreme court also rejected Dr. Sholem’s argument that Langevin failed to show excusable neglect pursuant to ARCP 6(b)(1)(B), which provides that a court may extend time on motion made after the time has expired if the party shows excusable neglect. The court held that ARCP 6(b)(1)(B), the generally applicable rule for extending time in civil cases, was inapplicable because it was inconsistent with ARCP 4(i). Since ARCP 4(i) was specific to service of process, it controlled.

Extreme Delay, But No Prejudice

“The ruling makes sense. The two rules are in conflict,” opines Jeffrey C. Brodin, Phoenix, AZ, cochair of the Section of Litigation’s Employment & Labor Relations Committee. Brodin finds that Sholem turns on the issue of prejudice. “The case was totally ready for trial, and all the evidence was ready from the previous case. The defendant did not argue any prejudice because he didn’t have any. That struck a chord with the court,” explains Brodin.

Based on the legislative history of ARCP 4(i)’s federal counterpart, one Section leader believes the court’s interpretation of the rule is sound. “The judge clearly got it right,” remarks Steven F. Finell, Santa Rosa, CA, chair of the Section’s Appellate Practice Committee’s Appellate Rules Subcommittee. “Although not cited in Sholem, the committee note to the 1993 amendment of Rule 4(m) supports that opinion’s interpretation,” notes Finell. “Where former Rule 4(j) gave the district court discretion to extend the time for service upon plaintiff showing good cause, under Rule 4(m) the court must extend the time for service upon a showing of good cause,” he elaborates.

Given the unique facts of this case, Section leaders agree that this ruling will not lead to less diligent plaintiffs. “I don’t think any plaintiff’s attorney would take the risk of being less diligent; that would be malpractice,” opines Brodin.

In addition to potential malpractice claims, “nobody can guarantee that a court will exercise discretion in your favor,” adds Jeffrey J. Greenbaum, Newark, NJ, cochair of the Section’s Task Force on Efficient Justice. “On the defense side, I would focus on developing a record that there was real prejudice—records have been lost, records have been destroyed, and memories have faded,” advises Greenbaum.