Sholem v. Gass et al. (3/30/20)

We had at first thought to skip this one, which may fall into the category Too Boring For Even Us To Blog. But it will open new opportunities for plaintiffs and new challenges for the defense. And it illustrates once again why it isn’t necessarily a good idea to outsource Arizona law to those unfamiliar and unconcerned with it.

This is about abatement of a Complaint under Rule 4(i). The rule says this:

If a defendant is not served with process within 90 days after the complaint is filed, the court–on motion, or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Eleven months after filing it, Plaintiff had not served her case. The trial court had not dismissed it or required service. Plaintiff moved for an extension; the court granted it and she filed within the extended time. Defendant moved to dismiss because Plaintiff had not shown good cause. The trial court denied the motion; the Court of Appeals declined jurisdiction of Defendant’s special action.

The Supreme Court affirms.

It first reviews the history of abatement. Arizona has had abatement since 1913, when it was enacted by the first state legislature. Originally, an action abated if not filed within one year. This law eventually became a rule and the rule went through various changes until, in 1996, we got the present version. It was adopted, as had been its predecessor, so that the Arizona rule would match the federal rule.

Then begins the analysis: “The plain language of Rule 4(i) permits extensions absent a showing of good cause.” The rest of the opinion is a coda to this pronouncement. The idea is that good cause is a requirement only of a mandatory extension, that other extensions are discretionary and do not require it.

Defendant argued that Rule 6(b)(1) requires excusable neglect if a request for extension is made after the applicable time limit has expired. The court agrees that it applied before 1996 but says that the present version of Rule 4 is inconsistent with Rule 6. It disapproves of Toy v. Katz (App. 1997), which said that the 1996 rule didn’t change anything substantively. Rule 6 now applies only if plaintiff gets a Rule 4 extension then blows that time period, too.

The court agrees with Defendant that Plaintiff did not show good cause. The extension was therefore not mandatory but could be discretionary. The court says that factors considered by trial courts in exercising their discretion are whether the statute of limitations bars refiling, whether the defendant evaded service, and whether the defendant would be prejudiced by the extension. The court decides that there was no prejudice and that Defendant might have been hiding.

So, despite 107 years of “shall” and “must” and ever-shorter time periods, abatement is now a chimera, replaced by arguments about prejudice and blame. And the change was made 26 years ago by people who said they hadn’t really changed anything.

Is the court wrong? Perhaps; Rule 6 should of course apply if you want to preserve some measure of consistency with longstanding Arizona law. But the people who wrote federal rule 4 knew nothing of that and their rule doesn’t really fit with it. This is what happens when you make law by cutting and pasting. How many times have we been told that a rule has been changed “merely” to make it consistent with a federal rule? Consistency is a pleasant-sounding shibboleth, not a cogent goal; the two sets of rules — made in the context of different law, history, needs, policies, and procedures — rarely match. In any event, you may not intend a change when you’re “merely” making things consistent but the next generation of judges won’t know or remember or care about that when it comes time for them to try to reconcile Arizona’s apples with the federal orange you stuck in the barrel.

The opinion is too long but is well-organized and its fourteen pages contain not a single footnote. So, for style, a solid C+.

(Opinion: Sholem v. Hon. Gass et al.)