This holds that a Federal Tort Claims Act case does not toll the statute of limitations if it is dismissed for lack of subject-matter jurisdiction.

in 2003 Giovan operated on Morris’ knee at Phoenix Indian Medical Center. In 2004 Morris sued “John Doe” for malpractice in Maricopa County, purportedly to obtain medical records as he claims not to have known whom to sue; suit was dismissed for lack of service. In August 2006 Morris filed in District Court an FTCA claim against the US and also against Phoenix Indian and Giovan, asking the court to take supplemental jurisdiction over the state malpractice claim. That was dismissed in October 2007 because Morris wasn’t suing a federal employee.

Meanwhile, in March 2007, he had filed another state court case, this time naming Giovan. Having blown the statute of limitations, Morris lost that on summary judgment in December. He did not appeal. But in April 2008 he filed a Rule 60(c)(6) motion, arguing that his federal case tolled the statute. (Whether he had made the same argument in opposition to summary judgment – and if not, why not – isn’t explained.) That was denied on its merits (a footnote points out that 60(c)(6) can’t be used for an error of substantive law but Giovan didn’t raise the issue). Morris appealed, even though the minute entry wasn’t signed; his appeal was suspended until it was.

Morris’ claim that his FTCA claim tolled the limitations period is based on a federal statute that says so. But the U.S. Supreme Court held (Raygor), as our Court of Appeals interprets it, that the tolling statute does not apply to supplemental state-law claims if the FTCA claim was dismissed for lack of subject-matter jurisdiction (Raygor was dismissed on 11th-Amendment grounds). The theory is that if the federal court had no subject-matter jurisdiction, it also had no power over supplemental state claims.

Perhaps we shouldn’t complain when Division One gives us an opinion that is only nine pages long. On the other hand, it also has nine footnotes. And it consists, basically, of a discussion of just one case.

As for counsel, perhaps you should give him credit for spending seven years and three lawsuits protecting his client’s claim. We won’t suggest what was perhaps really being protected, at a cost to the client of five years or more. We do wonder how many years ago he put it on notice.

(link to opinion)

We normally wouldn’t blog an opinion about forcible entry and detainer but this one is so depressing that we couldn’t resist sharing it with you.

At a trustee’s sale Arizona Real Estate bought a house that Schrader refused to leave. It filed an FED action and served Schrader by “post-and-mail,” i.e., posting the process in a “conspicuous place” and sending him copies by certified mail. After it obtained judgment against Schrader he appeal, arguing improper service.

There are two types of FED – an FED action under 12-1171ff and a ”special detainer action” under 33-1377 (used to evict renters). Rule 5(f) of the Rules of Procedure for Eviction Actions allows post-and-mail for the latter but follows Rule 4 for the former. ARE filed a 12-1171, so post-and-mail was improper.

It then argued – as, apparently, did the trial court – that the court was actually using its authority to allow for alternative methods of service. But that requires that Rule-4 service be “impracticable” (in English, “impractical”) and there was no showing that it was even attempted, much less that it couldn’t be done.

For lack of proper service, the judgment against Schrader was void. So, instead of getting possession of the house it owns the plaintiff has to start all over (and also to pay Schrader his costs for the first round).

We’re going to assume that there was a lot happening here that doesn’t meet the eye. Because, meaning no disrespect, let’s face it – FEDs just ain’t that hard. They’re one step up from uncontested default hearings. They’re either what you make your living doing a ton of – including the occasional hard one – or what you give the green associates who’ve already shown that they’re not really cut out for court. How could these people have either filed the wrong sort of case or not noticed that their process server had used the wrong method? Having been put on notice that they’d botched it, how could they litigate for a year through two levels of the judiciary rather than cut their losses and start over? What did they tell the client? And are they going to charge it for doing things right the next time?

But what really depresses us are those Rules of Procedure for Eviction Actions. Remember some time back when a special committee spent much time and effort consolidating various sets of civil rules? Like kudzu, they grow back. Eviction actions aren’t the only examples. The demands of the niche practices, based variously on vanity and ignorance, are unending; the willingness of the Supreme Court to cater to them is disappointing. Coming soon: the Rules of Civil Procedure for Changing Names.

(link to opinion)

Another notice-of-claim case.

Plaintiffs sued the State because of a one-car accident, alleging a defect in the road. The State said they hadn’t filed a notice of claim; they said they had and produced a notice of service saying they’d sent it in. The trial court dismissed the case and CA1 upheld it, saying that mailing isn’t good enough; the Supreme Court reversed, over the lengthy dissent of Justices McGregor and Berch, holding that mailing is good enough and, using the delivery rule, that whether Plaintiffs had served a notice was a question of fact.

But in a footnote the court expressly refused to say whether the question should be decided by judge or jury because the parties hadn’t raised the issue below. Someone at the court apparently had, though, because the footnote went on to cite law that the trial judge can decide jurisdictional facts but that a notice of claim issue is not jurisdictional.

So the case went back to the trial court to decide that issue, the parties citing the cases cited by the footnote. The court decided that it could decide the facts and decided them in the State’s favor, dismissing again. Plaintiffs appealed again.

Division One held that the jury must decide the question. The notice-of-claim requirement is procedural, not jurisdictional. It is an affirmative defense, not a “preliminary question” under Rule 104. The opinion agrees that the issue should be decided quickly, though, and so should be the subject of a separate trial which will, after all, “likely be no more than a one or two day jury trial.”

Well, yes, but what planet does he live on? Has he forgotten how things work down here at ground level? Call the superior court and see how soon you can get that “no more than one or two day jury trial.” The practical effect will be to expedite trial on the notice-of-claim issue not at all and to delay trial on the merits by many extra months, which is just fine by the State.

(link to opinion)