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Rudd v. Merritt2/26/2003
e Rudds concluded that serving their Summons and Complaints prior to the 'adjudication' by the pre-litigation panel would be violative of the stay mandated by Idaho Code § 6-1006." This argument presented to justify Plaintiffs' inaction contradicts Plaintiffs' actions below. The prelitigation screening panel met regarding the Plaintiffs' claim on October 2, 2000, and it issued its advisory opinion on November 27, 2000. Even though the Plaintiffs argue that they thought attempting to serve the summons and complaint before the panel rendered its opinion would violate the stay mandated by § 6-1006, that is just what the Plaintiffs did. Before the panel even met, the Plaintiffs contacted defense counsel to arrange for service of the summons and complaint. Nevertheless, the Bjornson case does not even address the issue presented in this case. Bjornson did not involve the failure to serve the summons and complaint timely. It merely held that a trial court could, pursuant to Idaho Code § 6-1006, stay a civil lawsuit until the prelitigation screening panel renders its advisory opinion. In the instant case, the Plaintiffs did not seek any such stay from the district court.
Finally, the Plaintiffs argue that the Defendants waived the six-month requirement for service by participating in the prelitigation panel proceedings and then by participating in discovery in this litigation once their respective clients had been served. "Rule 4(a)(2) is couched in mandatory language, requiring dismissal where a party does not comply, absent a showing of good cause." Sammis v. Magnetek, Inc., 130 Idaho 342, 347, 941 P.2d 314, 319 (1997). "When a rule is mandatory, rather than discretionary, the time at which dismissal is sought is irrelevant." Telford v. Mart Produce, Inc., 130 Idaho 932, 935, 950 P.2d 1271, 1274 (1998). The Defendants' participation in discovery or other proceedings after the expiration of the six-month period does not constitute a waiver of their right to seek dismissal based upon the Plaintiffs' failure to serve the summons and complaint before the six-month period expired. Assuming that Defendants' conduct before the expiration of the six-month period could constitute a waiver of the mandatory provisions of Rule 4(a)(2), there is nothing in the record showing any conduct by Defendants that could reasonably be construed as waiving the requirements of the rule. In the Telford case we held that a defendant's prior knowledge of the plaintiff's claim did not constitute good cause for the plaintiff's failure to serve the summons and complaint within the six-month period. Likewise, a defendant's prior knowledge of the claim does not constitute a waiver of the mandatory requirement that the plaintiff serve the summons and complaint timely.
The Plaintiffs chose to file this lawsuit before the completion of the proceedings before the prelitigation screening panel. Having done so, they were required by Rule 4(a)(2) of the Idaho Rules of Civil Procedure to serve the summons and complaint upon the Defendants within six months. This Court first applied Rule 4(a)(2) in the Sammis v. Magnetek case. As stated by the district court in both of its orders, " t has been abundantly clear for quite awhile that the Rule will be applied strictly." The district court correctly held that the Plaintiffs did not show good cause for failing to comply with the rule.
C. Is any Party Entitled to an Award of Attorney Fees on Appeal?
All parties seek an award of attorney fees on appeal pursuant to Idaho Code § 12-121. Attorney fees under § 12-121 will be awarded to the prevailing party on appeal when this Court is left with the abiding belief that the appeal was brought, pursued, or defended frivolously, u
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