Elliott v. Verska
152 Idaho 280
| Idaho | 2012Background
- Plaintiff Elliott sued Dr. Verska and Spine Institute, among others, for malpractice arising from surgeries in 2007.
- Initial complaint filed October 5, 2009; amended complaint added defendants in November 2009.
- Plaintiff sought prelitigation screening; representation shifted to counsel Swartz by March 2010.
- March 31, 2010 attempts to serve Spine Institute and Dr. Verska occurred at the Spine Institute; staff disputed authority to accept service.
- Affidavits of service filed April 5–23, 2010; district court found no proper service on March 31, 2010, and timing violation under Rule 4(a)(2).
- District court dismissed as to defendants for failure to serve within six months; held no good cause shown; ruling certified final under Rule 54(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was March 31, 2010 proper service date? | Elliott argues McLeod acted as agent with apparent authority to accept service. | Verska/Spine Institute contend McLeod lacked actual/apparent authority; service ineffective. | Service on March 31, 2010 not valid; substantial evidence supports lack of authority. |
| Did Rule 4(a)(2) require timely service from the initial filing or amended filing? | Time should start with the amended complaint since it names new defendants. | Rule 4(a)(2) runs from initial filing naming the party; amended complaint does not restart the period here. | Six-month period began with initial filing; did not reset with amended complaint. |
| Did Elliott show good cause for late service? | Settlement discussions, prelitigation panel tolling, and attempts constituted good cause. | Courts require diligence; absence of timely service and lack of due diligence negate good cause. | No good cause shown; dismissal upheld. |
| Is dismissal mandatory when service is untimely under Rule 4(a)(2)? | Dismissing the action was too harsh; quash service instead if substitute service completed. | Rule 4(a)(2) is mandatory; dismissal required absent good cause. | Dismissal was proper; no discretion to quash based on conduct here. |
| Are attorney fees on appeal warranted? | Fees requested under 12-121 should be considered. | Fees not properly raised in initial brief; may be denied; not frivolous to appeal. | No appellate attorney fees awarded; appeal not entirely frivolous. |
Key Cases Cited
- Sammis v. Magnetek, Inc., 130 Idaho 342 (Idaho 1997) (good cause for late service is a factual, threshold inquiry)
- Campbell v. Reagan, 144 Idaho 254 (Idaho 2007) (notice alone does not excuse failure to timely serve)
- Telford v. Mart Produce, Inc., 159 P.3d 894 (Idaho 1998) (notice without proper service does not satisfy due process)
- Rudd v. Merritt, 138 Idaho 526 (Idaho 2003) (lateness and lack of diligence negate good cause)
- Martin v. Hoblit, 133 Idaho 372 (Idaho 1999) (settlement negotiations do not constitute good cause; diligence required)
- Herrera v. Estay, 146 Idaho 674 (Idaho 2009) (due process requirements govern service form and notice)
- Moss v. Bjornson, 115 Idaho 165 (Idaho 1988) (prelitigation screening tolls statute of limitations, but not for starting service period)