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Schmitz v. Vasquez12/23/1998
laced. That case is factually and legally distinguishable and does not apply in the case sub judice. Schmitzes' original summons was not lost during their attempt to timely serve it as was the case in Yarborough nor did Schmitzes obtain a second identical summons under Rule 4C(1) to replace the first, as did Yarborough. Yarborough, 285 Mont. at 495-97, 948 P.2d at 1181-83. Moreover, Yarborough did not drop a defendant from her lawsuit without court permission in violation of Rule 21, M.R.Civ.P., on her duplicate summons as did Schmitzes on their amended summons. While Yarborough may have complied with the substance of Rule 41(e), Schmitzes did not even come close.
Additionally, the majority's Conclusion that Dr. Vasquez is not prejudiced is flat wrong. Over six years after Schmitzes' claims of alleged malpractice against Dr. Vasquez accrued they filed an invalid amended complaint and served him with an invalid amended summons. Throughout the intervening time they repeatedly violated the procedural laws governing their claims. Their first pro se complaint improperly named a defendant who had not been subject to the Montana Medical Legal Panel. Notwithstanding, they could have timely served Dr. Vasquez with their original summons, but did not. They then violated Rule 4D(7) by obtaining an amended summons without leave of court, and they violated Rule 21 by amending their complaint and summons dropping Dr. Sanz without an order of court. Finally, they served Dr. Vasquez with an invalid amended summons after the time-bar of Rule 41(e) had run. Dr. Vasquez will now be forced to defend the merits of a medical malpractice suit from which, under the law, he is entitled to be dismissed. His rights to rely on the courts to evenhandedly apply the rules of civil procedure have been completely trashed. I am hard-pressed to come up with a more clear example of prejudice or result-oriented "Justice."
Finally, it is worth noting that, for a procedural rule, Rule 41(e) generates what, in my view, is an inordinate amount of litigation, appeals and, sometimes bitterly divided decisions from this Court. I, for one, believe that it is an appropriate time for this Court's Advisory Commission on the Montana Rules of Civil Procedure to take a critical look at this Rule and to make appropriate recommendations to this Court. I strongly urge it to do so at the earliest opportunity.
As to our decision in the case at bar, I would affirm the District Court. I respectfully Dissent from our failure to do so.
JAMES C. NELSON
Justice Karla M. Gray concurs in the foregoing Dissent.
KARLA M. GRAY
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