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Rudd v. Merritt2/26/2003
2003 Opinion No. 18
The orders of the district court are affirmed.
This is an appeal from judgments dismissing this action as to all of the Defendants because of the failure of the Plaintiffs to serve the summons and complaint upon the Defendants within the six-month period required by Rule 4(a)(2) of the Idaho Rules of Civil Procedure. The district court held that the Plaintiffs had failed to show good cause for failing to serve the summons and complaint timely, and we affirm.
I. FACTS AND PROCEDURAL HISTORY
The relevant facts in this case come from various affidavits, some of which are conflicting. On February 7, 2000, the Plaintiffs filed this action to recover damages against the Defendants on a claim of alleged medical malpractice that occurred two years earlier. On the same day, the Plaintiffs filed a request for a prelitigation screening panel pursuant to Idaho Code ยง 6-1001. Rule 4(a)(2) of the Idaho Rules of Civil Procedure requires that the summons and complaint be served upon defendants within six months after the filing of the lawsuit. In this case, that six-month period expired on August 7, 2000.
According to Plaintiffs' counsel Bron Rammell, in late July 2000 he asked his secretary to contact a process server in order to serve the Defendants in this action. In her affidavit, the secretary stated that on July 31, 2000, she contacted Tri-County Process Serving in Boise, Idaho, to arrange for service of the summons and complaint on the Defendants. The secretary said that on July 31, 2000, she contacted Andrew Brassey, counsel for respondent W. Davis Merritt, III, M.D.; John King, counsel for Saint Alphonsus Regional Medical Center; Patricia Olsson, counsel for Edward A. Draper, M.D.; and Richard Hall, counsel for respondent John Q. Knochel, M.D., and they each agreed to accept service of process on behalf of their respective clients. After the secretary's first affidavit was filed, Saint Alphonsus Regional Medical Center filed the affidavits of John King and his legal assistant in which they stated that John King had not talked with the secretary on July 31, 2000. The Plaintiffs then filed a supplemental affidavit of the secretary in which she said that she also talked with Mr. King on August 1, 2000, and he again agreed to accept service of process on behalf of the hospital.
Mr. Rammell's secretary stated that on August 1, 2000, she sent copies of the summons and complaint to Tri-County Process Serving for service upon all defendants, and that later on the same day she contacted Tri-County and cancelled that service, based upon all defense counsel having agreed to accept service of process on behalf of their clients. Richard Rambo, the owner of Tri-County Process Serving, stated by affidavit that his records show that on August 1, 2000, someone from Mr. Rammell's office called and asked that he serve complaints on all of the Defendants in this action and that later that day Mr. Rammell's secretary called and told him not to serve the Defendants because their respective counsel had agreed to accept service.
In her affidavit, Mr. Rammell's secretary asserted that on August 3, 2000, she mailed letters to all defense counsel enclosing copies of the summons and complaint and acknowledgements of service for them to sign and return. In September, the district court sent Mr. Rammell a notice, which apparently stated that the case would be dismissed for lack of activity. The secretary stated that she then contacted defense counsel again to ask them to sign and return the acknowledgements of service.
Andrew Brassey stated in his affidavit that on August 1, 2000, someone at Mr. Rammell's office telephoned t
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