YOUR FIRST MOVE – TIMING INITIAL FILINGS AND SERVICE DURING THE PANDEMIC

Rachel E Phillips Covid 19 Blog Post

April 28, 2020

If you are thinking about filing a lawsuit during the Covid-19 pandemic, consider your strategy for serving process at the outset of the case.  While some courts in other states have ordered temporary suspensions of personal service, the Arizona State Court has yet to take such action.  Arizona Rules of Civil Procedure 4 and 4.1 provide the rules for serving pleadings that bring an Arizona-based party into an action.  In most cases, serving an individual under Rule 4.1 requires hand-delivery of a copy of the summons and the pleading to the individual being served, someone at that individual’s home, or an agent authorized to accept service.  With the Covid-19 pandemic in the picture, such methods of service of process may give rise to health and safety concerns, and may prove to be ineffective with individuals evading such service for fear of infection.

Parties initiating a lawsuit in Arizona state courts have a limited time—ninety days—to serve a defendant before the court dismisses the action or orders service within a specified time.  This rule also allows parties to request an extension under certain circumstances, including a showing of “good cause” for the failure to serve.  Accordingly, would-be litigants are currently faced with the following questions:  (1) is it better to file a complaint now and try to serve process during the ninety day limit, or wait a few months to file in hopes that the pandemic will have subsided; and (2) what constitutes “good cause” for a failure to serve within the ninety days allowed by Rule 4(i)?

A recent Arizona Supreme Court opinion sheds some light on these questions.  In Sholem v. Gass, et al., the Arizona Supreme Court held that under Rule 4(i), if a plaintiff shows good cause for failing to serve a defendant within ninety days, a court is required to extend the time for service. However, Rule 4(i) also allows a court, in its discretion, to extend the period for service without a plaintiff showing good cause.  The Court also shed some light on factors to be considered when trying to show “good cause” under Rule 4(i), such as: (1) whether the plaintiff abandons service after only a few unsuccessful attempts over a limited time during the allotted time period for service, (2) whether the reason for failure to serve is outside the plaintiff’s control, such as “sudden illness, natural catastrophe, or [defendant’s] evasion of service of process,” and (3) whether the plaintiff attempts to serve the plaintiff at more than one location (such as business and home addresses) or by alternative means (after first seeking permission from court).  Finally, the Court listed some factors to be considered when determining whether to grant a discretional extension under Rule 4(i): (1) whether a plaintiff would be time-barred from re-filing the lawsuit due to the statute of limitations; (2) if the defendant evaded service; and (3) if the defendant would be harmed, or prejudiced, in some way if the court grants the extension.

As long as plaintiffs consider the “good cause” and “discretionary” factors set forth in Sholem, fear of being unable to serve pleadings within the ninety day time period should not, alone, deter a party from initiating a lawsuit during the pandemic.  Ultimately, the decision of whether to send a process server out to effect personal service should still be still be made on a case-by-case basis in consultation with your attorney during the pandemic.  Plaintiffs who go ahead with filing during the pandemic should consider the following strategies during the ninety day period for service to avoid running afoul of Rule 4(i):

  • Consider reaching out to defendant early in the ninety-day period and asking if they will waive service or accept service.  The Rules provide further guidance on each option;
  • Make multiple attempts at serving the party throughout the ninety-day period, not just over a limited period in the ninety days (i.e., instead of making six attempts at service during the second week, try spreading these attempts over the ninety days);
  • If it appears that the party is evading service or service will be unsuccessful for reasons outside of the litigant’s control (i.e., the defendant will not leave her home or answer the door for health reasons), consider asking the court for permission to use an alternative means of service under Rule 4.1(k) before the expiration of the ninety-day period.

About the Author: Rachel Phillips is a business litigation attorney who assists clients across multiple industries in both state and federal courts. Rachel has represented lenders, recycling and waste solutions providers, food companies, regional financial institutions, commercial landlords, and insurance providers. She focuses on providing innovative solutions and effective advocacy for clients. [email protected] | 602.222.4962

Disclaimer: This article is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this article. If you need legal advice, consult with a lawyer.