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Rudd v. Merritt2/26/2003
o inquire whether he would accept service of process on behalf of Dr. Merritt, and he agreed to do so. He did not receive any documents from Mr. Rammell's office until September 27, 2000, when he received by facsimile machine copies of a letter dated August 3, 2000, an acceptance of service form, the complaint, and a summons.
John King's legal assistant Anne Graham stated in her affidavit that on July 31, 2000, she received a telephone call fromMr. Rammell's secretary, who asked whether or not Mr. King would accept service of process on behalf of Saint Alphonsus Regional Medical Center. Ms. Graham responded that she would give Mr. King the message, but did not state that Mr. King would accept service. Mr. King averred in his affidavit that he had no recollection of speaking with Mr. Rammell's secretary on July 31, 2000. He also stated that during the over twenty-five years that he has represented St. Alphonsus Regional Medical Center, he always calls his client and its insurer and obtains their approval before agreeing to accept service, and that in this case he made those calls in late November or early December of 2000.
In her affidavit, Patricia Olsson stated that in August 2000, Mr. Rammell contacted her and asked whether she would accept service on behalf of Dr. Draper, and she agreed to do so. She did not receive the summons and complaint, however, until September 27, 2000. On that date Mr. Rammell's secretary called and asked Ms. Olsson's administrative assistant whether they had received the August 3rd letter, the acceptance of service, and the copies of the summons and complaint. When advised that Ms. Olsson's office had not received those items, the secretary then sent them by facsimile machine.
Richard Hall stated by affidavit that on September 27, 2000, Mr. Rammell's secretary called and asked whether he had received the letter dated August 3rd, 2000, together with the acknowledgement of service and the copies of the summons and complaint. When she was told that his office had not received those items, the secretary sent copies to Mr. Hall's office by facsimile machine. He said his office had no record of having received the August 3rd letter, nor did he or anyone in his office have any recollection or record of having had contact with anyone from Mr. Rammell's office on July 31, 2000.
On February 27, 2001, the Saint Alphonsus Regional Medical Center filed a motion to dismiss this action as to itself on the ground that it had not been served with the summons and complaint within six months after the filing of the complaint, as required by Rule 4(a)(2) of the Idaho Rules of Civil Procedure. On March 8, 2001, Dr. Knochel moved to dismiss this action as to himself for the same reason. Those motions were heard by the district court, and on July 19, 2001, the district court issued its decision and order granting the motions to dismiss. The district court found that the Plaintiffs had failed to show good cause for not serving these defendants timely.
On March 20, 2001, Dr. Draper filed his answer to the complaint, and on July 30, 2001, he filed a motion to dismiss this action as to himself because of the Plaintiffs' failure to serve the summons and complaint within six months after the filing of the complaint. On July 27, 2001, Dr. Merritt filed an answer, and on August 15, 2001, he also moved to dismiss this action as to himself because of the lack of timely service of the summons and complaint. After hearing both motions, the district court on November 5, 2001, issued its decision and order in which it granted both motions to dismiss. The district court again found that the Plaintiffs had failed to show good cause for failing to timely serve process
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