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Rudd v. Merritt2/26/2003
, not the mailing of that acknowledgement to the individual, that completes service of process. It is undisputed that before the expiration of the six-month period on August 7, 2000, no Defendant, nor any attorney for a Defendant, had executed an acknowledged written admission that he or she had received service of process. It is also undisputed that prior to the expiration of that time period, no Defendant was actually served with the summons and complaint in this action. Therefore, the Plaintiffs did not serve the summons and complaint upon any Defendant before the expiration of the six-month period required by Rule 4(a)(2) of the Idaho Rules of Civil Procedure.
B. Did the Plaintiffs Show Good Cause for Failing to Serve the Summons and Complaint upon each of the Defendants within Six Months after the Filing of the Complaint?
The Plaintiffs contend that they showed good cause for failing to serve the summons and complaint upon the Defendants within the required six-month period. Whether or not good cause exists is a factual determination. Regjovich v. First W. Inv., Inc., 134 Idaho 154, 997 P.2d 615 (2000). The standard of review on appeal is the same as that for reviewing the granting of a motion for summary judgment. Nerco Minerals Co. v. Morrison Knudsen Corp., 132 Idaho 531, 976 P.2d 457 (1999). This Court liberally construes the record in the light most favorable to the party opposing the motion, drawing all reasonable inferences and conclusions in that party's favor. Id.
First, the Plaintiffs argue that before the expiration of the six-month period all defense counsel agreed to accept service of process on behalf of their respective clients. Assuming that to be true, such oral agreements did not accomplish service. Nowhere in Rule 4(d) of the Idaho Rules of Civil Procedure is there any provision stating that service is complete once a party, or his or her counsel, orally agrees to accept service. Once a person orally agrees to accept service, the plaintiff must then have the person execute an acknowledged written admission stating that the individual has received service of process and the capacity in which such service of process was received. IDAHO R. CIV. P. 4(d)(6). Service is accomplished by the execution of the acknowledgement of service, not by the oral agreement to execute that acknowledgement. In this case, acknowledgements of service were not executed before the expiration of the six-month period by any of the Defendants or their counsel. If there was evidence showing that any defense counsel received the acknowledgement form before the expiration of the six-month period and simply refused to execute it after previously agreeing to do so, then our decision regarding good cause may be different. There is no such evidence in this case, however.
Next, the Plaintiffs argue that they made diligent attempts to effect service before the expiration of the six-month period. In Sammis v. Magnetek, Inc., 130 Idaho 342, 941 P.2d 314 (1997), this Court stated that when considering whether good cause has been shown, a court may consider a party's diligent efforts to effect service. The facts in this case, however, do not show diligent attempts to effect service before the expiration of the six-month period. The Plaintiffs waited until July 31, 2000, one week before the six-month period was due to expire, before making any attempt to effectuate service. Waiting five and three-fourths months before attempting to effect service does not show due diligence.
The Plaintiffs next contend that good cause is shown because they reasonably relied upon this Court's decision in Moss v. Bjornson, 115 Idaho 165, 765 P.2d 676 (1988). They state, "Relying on Bjornson, th
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