*1
A. BUSCH,
MONICA
Appellant,
(Michael
BRIAN ATKINSON
Jr.), MICHAEL
Atkinson,
ATKINSON,
and RITA
ATKINSON,
Respondents.
Defendants
No. 95-456.
April
on Briefs
1996.
Submitted
Decided October
1996.
St.Rep.
JUSTICE NELSON Opinion delivered the of the Court. brought
Plaintiff Monica Busch this action the District Court District, for the Thirteenth County, Judicial Yellowstone to recover damages allegedly sustained in an automobile involving accident Atkinson, Defendant Michael Jr. Defendants filed a motion to dismiss year on Plaintiff’s failure to have a summons based issued within one complaint, pursuant to Rule M.R.Civ.P. The District Court motion granted Defendants’ and ordered the dismissal action. We reverse. following appeal:
We address the issue on injury dismissing personal the District Court err Did within one a summons was not issued of the action? commencement Background Procedural
Factual and February injured Monica Busch was when Atkinson, Jr., Mi- Michael the minor son Defendants Defendant Atkinson, Rita rear-ended Plaintiff’s vehicle while Plaintiff chael and company accepted Defendants’ insurance stopped stop sign. at a treatment of Plaintiff’s cervical liability paid for conservative healing period should have ended. until it decided Plaintiff’s strain treatment for a time but when she decided to resume stopped treatment, company Defendants’ insurance refused to reimburse for further treatment. adjuster a letter to Defendants’ insurance
Plaintiff’s counsel sent insurance company advancing payment resume requesting 5, 1990, the April medical bills. In a letter dated for Plaintiff’s already $2,900 adjuster company paid stated that his had insurance and treatments for Plaintiff and was not for various examinations money more for Plaintiff’s medical bills. advancing interested in your ready the statement client is “[w]hen The letter concluded with *3 case, open of this we will be for discussion.” to talk final settlement conservative treatment and sub- Thereafter, Plaintiff continued with medical bills to her husband’s health insurance carrier. mitted her commencing the this action on complaint Plaintiff’s counsel filed 31,1992, running. the statute of limitations from January prevent 12, 1992, requiring the District Court issued order August On or to face dismissal of report to file a status with Plaintiff month, problems experienced That same Plaintiff’s counsel the case. of all data on the resulting in his office in the loss computer with the June, July August Despite 1992. the months of and hard drive for Objection Report counsel filed a Status and computer problems, these 16,1992, claiming that he was in continu- September on to Dismissal stating company Defendants’ insurance and negotiations with ing that he could had not been served so complaint that the summons company. directly with the insurance continue to deal that no summonses 1993, Plaintiff’s counsel discovered In March a summons and prepared action. Counsel issued in this had ever been it attempted to have issued. Clerk of Court’s Office took it to the they could not issue counsel that advised personnel The court 41(e), by Rule one-year provided period summons M.R.Civ.P., expired. a had Counsel filed motion with the court on 9,1993, beyond one-year for March leave issue time provided period basis of excusable neglect. mistakenly He claimed that he believed that he prepared had report summons and had it issued soon after he filed the status in September 1992, the District Court and that he had not discovered calendaring system the error sooner because his office had been wiped out completely computer January virus in 1993. 25,1993, May On the District Court denied the motion for leave to and ordered issue a summons the action dismissed based finding court’s the Rules of Civil Procedure require dismissal no summons has been issued within one filing complaint regardless of the reason for it not issued. being Plaintiff filed a motion May 28, 1993, on theory reconsideration under the that a sum- mons could issued on an July amended On granted the District Court Plaintiff’s motion reconsideration, vacating May 25,1993 order dismissing this action and granting Plaintiff’s motion for leave to file an amended complaint and have summons issued on the amended complaint. However, Plaintiff failed complaint to file the amended or have summons issued. January 19,1995,
On more than 18 months after the District Court granted file, leave to the court sent Plaintiff’s counsel a advising that Plaintiff’s case would be dismissed for failure to prosecute good unless why cause was shown no action had been taken by Plaintiff following the court’s July issuance of its 1993 order. response, In filed an complaint amended and three sum- were issued and on January 26, monses served However, day after these issued, summonses were filed a second court, amended without leave of the to correct the name of one Defendants. The second amended and three new summonses were served on the Defendants and an Affidavit Service Process was returned and filed with the Clerk Court on January 31,1995, day the three-year time limit for serving return 41(e), M.R.Civ.R, set service as forth Rule expire. was to February
On Defendants’ filed a motion to 12(b), M.R.Civ.P, dismiss under Rule insufficiency the basis of *4 process, insufficiency process, of service of and failure to state a claim be may granted. which relief The District granted Court Defen- 28, 1995, dants’ motion on June and ordered the dismissal of this July 13, 1995, On action. Plaintiff filed a Motion Reconsideration but failed to file a supporting brief. The District Court denied Plain- on August and entered
tiff’s Motion Reconsideration Defendants, ordering the in favor of dismissal Plaintiff’s complaint. appeals.
Discussion personal injury dismissing District Court err in Did the year not issued within one action because summons was action? commencement Plaintiff’s personal injury dismissed
The District Court determined that Plaintiff’s failure to issue a summons because it by as one-year of the commencement of action mandated within M.R.Civ.P, to dismissal. The court entitled Defendants Rule that, though was allowed to file even also determined one-year period pre- to issue a summons amended 41(e), M.R.Civ.P., the commencement of the runs from scribed in filing ofthe begin running does not anew with the amended action and law plenary. review a district court’s conclusions of Our law interpretation whether the court’s We determine simply Serv., (1995), Capital Answering Inc. 271 Mont. correct. First Call v. Steer, 425, 426, (citing Department Inc. v. Revenue 898 P.2d 603). 470, 474-75, 803 P.2d 41(e), M.R.Civ.P., previously This has stated that Court summons is not issued requires dismissal of an action where action, appear year of the commencement of unless an one within years within three commence is made the defendant ance Mfg. Big Bud Co. 262 Mont. ment of the action. Sinclair 264, 266-67; Big Sky Association Unit Owners v. 363, 367, 865 P.2d 142, 148, 41(e), M.R.Civ.P., (1986), Mont. 729 P.2d pertinent part: provides, or hereafter commenced shall dismissed
all actions heretofore commenced, on shall have been its by the court which the same motion, therein, interested party the motion of own not, party unless summons named in whether year, or unless summons issued been issued within shall have and filed with have been served within one action, said years within 3 after commencement the court made the defendant or defendants has been appearance unless [Emphasis added.] years. said therein within authority to extend court has the argues district issued where the failure plaintiff to have a summons for a the time
483 neglect pursuant act the result of to 6(b), to was excusable M.R.Civ.R, good or pursuant cause to rule established in County (1989), 239 781 Livingston Treasure Mont. P.2d 1129 (overruled (Mont. by Haugen No.95-554, v. Blaine Bank decided 1996). argues October Plaintiff further that under 4C(1), M.R.Civ.P, it was the of the to Clerk Court issue the summons when the was filed and that the burden of issuing the wrongfully placed upon the Plaintiff. unnecessary We find it to all address three arguments argument 4C(1), as her regarding is M.R.Civ.R, dispositive 4C(1), of this case. Rule provides pertinent in part:
Upon complaint, the clerk shall issue a forthwith summons, and shall to deliver the summons either the sheriff of county filed, in which the or to the person who is to it, serve to upon request, attorney for said party who shall responsible thereafter be to see that the summons is served prescribed by Upon manner these rules. request, separate or against any additional summons shall issue parties designated in original action, against any parties may additional who brought into the [Emphasis added.] action.
Although previously this Court has power stated that the to issue exclusively a summons lies with the clerk of court and that an attorney can only request issued, the summons be Larango v. Lovely 43, 46-7, Mont. P.2d we have not squarely heretofore addressed the precise question i.e., raised here — 41(e) should the burden of a Rule dismissal fall on the party filing a complaint where the summons is not issued within one the clerk of court fails power to exercise that in compliance with Rule 4C(1)? addressing that, In this issue appreciate historically we attorneys as a matter of practice, prepare usual the summons and usually clerk direct the of court to issue it at the time of filing the complaint or at Normally some later time. the clerk simply complies attorney’s with the directive.
However, task, our when called to decide a case involv ing simply apply the Rules of Civil Procedure is to written, them as may actually not the Rules to what be a prevailing practice conform clearly at odds with the Rules unambiguously require. what Moreover, interpretation in our various Rules Civil Proce dure, applicable statutory we utilize rules of construction. Thus Rules, our interpretation required we is in to ascertain and declare what terms or in substance simply therein, has been or to insert what omitted omit contained there are provisions [and] [w]here has been inserted several what is, possible, adopted if particulars, a construction to be such to all. give will effect Call, 97; also 1-2-101, MCA. See First P.2d at Pierce
.Section Court, 50, 53-54, Packing Co. v. District etc. 41(e) Thus, to read attempt we must Rules P.2d and, give unambiguous to the clear and possible, effect together language both. 4C(1), mandatory plain language
The in Rule and leaves no room clerk interpretation “[u]pon filing of *6 — summons, and deliver the either issue a shall summons to forthwith 4C(1), or it.” Rule person to the who is to serve Under the sheriff... attorney is obliged request the nor his or her to complainant neither complainant attorney issued the or that the summons be nor is not the attorney to direct the clerk to issue summons. The empowered delivery the complainant request can of issued summons and for the served, it is responsible having become but that the thereafter authority required to the respect of his or her with summons extent by court the filed. upon being issued the clerk of to be 4C(1), complaint, clerk of upon filing Under Rule the the court’s and anyone, a from is to issue the summons to duty, request without service; it for no is allowed. is clear not only deliver discretion This 4C(1), sentence of plain language from the first Rule which summons, request no for issuance of the initial but also from requires Rule provides of the second sentence of this which that language the (Em summons issue.” request, separate additional “[u]pon added.) complainant attorney obligated the is to phasis While summons, separate obligation there no such request additional filing summons upon complaint; the initial to be issued the the as to more, required and to issue simply, of court is without the clerk and it for to deliver service. summons 4C(1) clearly mandatory the initial burden and places Since Rule delivering duty issuing of unwilling the we to affirm the trial court filing
the
of
41(e)
sanctioning
with
under Rule
and with
the Plaintiff
dismissal
court,
that
day
of her
where
sanction
deprivation
the irrevocable
directly
of
clerk —an officer of
court —to
from failure
results
clearly
under the Rule
duty,
required
which is
perform
responsibility.
that official’s
solely within
ago,
Over
decade
we were faced with a somewhat similar issue
Procedure,
involving
77(d),
another of the Rules of Civil
and the
running
litigants’ appeal
effect on the
of
times occasioned
entry
judgment
failure to issue the notice of
of
as required
clerk’s
uniformly
the Rule. In those situations we
clear
applied
language
held
filing
appeal
begin
that
time
did not
entry
until
clerk
to run
of court issued the notice of
of judgment
77(d),
required by
existing
as
then
Packing
M.R.Civ.P. See Pierce
Court,
(1978),
Co. v. District
(losing
etc.
Mont.
We unambiguous have that the clear and re 4C(1) quirements comport of Rule do not with what has been and is 4C(1) accepted practice. should be amended to remove from the responsibility insuring issuance the to the delivering process placing respon same server sibility on squarely party the back of the who will suffer the sanction i.e., timely party the summons issued and served — rule, issue amending We intend to an order 9,1984, forthwith. See for our Order October example, dated wherein M.R.Civ.R, complica- 77(d), practical because of we amended requirement serving to, among things, place other tions, than on the clerk party rather entry prevailing on court. consistent proceedings for further and remanded Reversed opinion. HUNT, GRAY, and LEAPHART concur. TRIEWEILER JUSTICES specially concurs. JUSTICE GRAY on a technical issue of first ruling in Plaintiff’s favor
While we construed Plaintiff’s coun- decision should not be impression, our contrary, lawyering part. on his To the great the reward for sel as diligent pursuit for the of his hardly praised counsel can Plaintiff’s notwithstanding, Computer problems matter. case in this client’s sort of implement advised to some counsel would be well and of his tracking of his case that will insure better practice office purely If this case were to be decided with court orders. compliance overlay of the issue neglect grounds and without excusable might well be different. result involving Rules foregoing concurrence. special concurs in the JUSTICE NELSON