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Last Post 14 Nov 2012 01:56 PM by  kcgreif
R-11-0031 Rule 4.1(i), Ariz.R.Civ.Proc. (“Service of process within Arizona”)
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kpearson
Posts:

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17 Nov 2011 10:36 AM
Karl S. Pearson
Pearson Law, PLC
4422 N. Civic Center Plaza
Suite 101
Scottsdale, AZ 85251
kpearson@pearson-law.com
Bar #014594


I support Petition R-11-0031.


The Petition should be adopted in full for all of the reasons stated by Geoff Trachtenberg, Dave Abney and others.

The purpose behind service of process is to place a Defendant or party on Notice of pending litigation. Under the current rules, formality and confusion are trumping the purpose behind the service of process rules. The existing rule is a trap for the unwary and creates substantial and unjustified expense.

In my experience, the current Notice of Claim process is simply a tool to defeat valid claims. Claimants are sent into a "house of mirrors" where they must guess which image should be served. Governmental entities rarely even respond to a Notice of Claim. The current system appears to be used more as a trap than to ensure notice.

The Petition should be adopted in full.
RDBohm
Posts:

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17 Nov 2011 11:18 AM
Robert D. Bohm
Bohm & Jones, P.C.
2141 East Camelback Road
Suite 100
Phoenix, Arizona 85016
602-840-8787
rbohm@bojolaw.com
Az Bar No. 005226

I agree with Mr. Trachtenberg and Mr. Abney and support the Petition. Rule 1, ARCP indicates that ALL rules should be construed to secure the just, speedy, and inexpensive determination of every action. Existing Rule 4.1(i) ARCP is the causes the exact opposite resut. The current Rule is an expensive and oten unnecessary trap for the unwary. Service of process is to give the wrongdoer notice of a claim and lawsuit. It is nonsensical to force service on every single member of a public body when each individual member has been elected or appointed to supervise and oversee these important public functions. Service of claims and lawsuits on governmental entities should not be so complicated and expensive that it thwarts our citizens' constitutional right to seek redress for the harm caused by a government entity.

As the Court is aware, Rule 4.1(j) has long allowed for service upon one member of a public body and that is the "default rule" when Rule 4.1(i) is not applicable. Why allow this kind of service under one rule but not the other?

Allowing service on administrative assistant or similar employee simply creates a long over-due efficiency and recognizes the modern reality that high-level officials subject to service have security concerns. It also allows for public officials to perfom their official duties without interruption. It is frequently not possible for strangers effecting service to get access to these persons without undue expense and tactics that may result in the interruption of public meetings.

The Petition should be adopted in full.
williamrhobson
Posts:

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17 Nov 2011 12:05 PM
William R. Hobson
Law Offices of William R. Hobson, P.C.
7303 W. Boston St.
Tempe, AZ 85226
(480) 705-7550
(480) 705-7503
bill@billhobsonlaw.com
AZ Bar No. 00687

For reasons identified by Geoff Trachtenberg, Dave Abney and many others, I support Petition R-11-0031 for the reasons stated. The decisions in Batty v. Glendale Union High School Dist. No. 205, 221 Ariz. 592, 212 P.3d 930
(App.2009) and Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 144 P.3d 1254 (2006) do little to secure " just, speedy, and inexpensive determination of every action" and in fact, create another trick to deny determinations on the merits. In litigation involving school districts, the requirement of serving school board members has created an incredibly expensive first step as related to the initial notice of claim service requirement and then in subsequent litigation. It is also not clear that serving individual board members is really adequate since the board only acts as a board in duly agendaed meetings. Even serving the assembled board may not be adequate service if the board is not assembled and agendaed for acceptance of notices of claim or of service of process.
I also note that while service on the clerk of the board under the rule (and Batty) should be adequate service, that is not a view shared by some on the defense side, who insist on the view that all the board members must be served. I am also aware of two school districts in the Phoenix area who have declined to appoint or elect a clerk of the board in their organizational meeting or thereafter. My suspicion is that such conduct is done to make service of notices of claim and process more expensive and trickier. The proposed rule change is a good one and should be approved.
wschicklaw
Posts:

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17 Nov 2011 01:06 PM
Commentator's name: William S. Chick
Mailing address: 4500 N. 32nd Street, Suite 201C, Phoenix, AZ 85018
Phone number: (602)954-7975
Fax number: (602)954-4629
E-mail Address: chixhome@prodigy.net
AZ State Bar #: 3387

Dear Sir or Madam:

I support, and strongly urge passage of, this Petition. For all the reasons as stated in the numerous other supportive emails submiited by my fellow plaintiffs' personal injury attorneys, I believe that the relief which will be accomplished by passage of this Petition is in the best interests of justice for the injured and aggrieved. Their cases need to be adjudicated on their merits, not on hyper-techical procedural defenses having nothing to do with the undelrying facts or applicable substantive law. The granting of this Petition will also have the laudable effect of eliminating the burdens on our over-worked judges. They are currently being bombarded with motions and other pleadings arising out of the current rules. The defense bar is necessarily required to take advantage of every tool available to them to impede the path to an adjudication of the merits of the case. Please bring a halt to this sad state of affairs. In so doing you will be not only freeing up the judges time for the controversies that deserve their attention, but also helping the everyday people whose lives have been disrupted by an occurrence that has caused injury or death. Thank you for your kind attention and consideration of my input.
skivs11
Posts:

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17 Nov 2011 04:07 PM
Ryan Skiver
Warnock MacKinlay & Carman, PLLC
7135 E. Camelback Rd, Suite F240
Scottsdale, AZ 85251
602.381.6626 (P)
602.381.6560 (F)
rskiver@lawwmc.com
AZ Bar # 024552


I support Petition R-11-0031 for the reasons stated by Geoff Trachtenberg, Dave Abney and others.
Service of claims and lawsuits on governmental entities should be simple and easy, so that citizens' constitutional rights to seek redress of government wrongs is meaningful and protected. The existing rule is a trap for the unwary and creates substantial and unjustified expense.

With respect to serving one member of a group, the problems with the existing rule became most evident after the Falcon decision which, in part, based its holding upon "fulfill[ing] the purposes of the notice-of-claim statute." The Court in Falcon, however, should not have interposed any Legislative intent while interpreting the Court's own Rules of Civil Procedure since the Legislature has no role in promulgating those rules.

In addition, to the extent the Falcon decision rests upon concerns related to allowing service upon "one member" of a public body, it is important for the Court to recognize that these persons were elected or appointed to supervise and oversee important public functions. It certainly seems reasonable for those persons to be able to accept basic service related to their public office and, to the extent they cannot appreciate the significance of being served, its hard to imagine the entire group would be any better at appreciating the significance.

As the Court is aware, Rule 4.1(j) has long allowed for service upon one member of a public body and that is the "default rule" when Rule 4.1(i) is not applicable. It makes no sense to allow this kind of service under one rule but not the other.

With respect to serving an administrative assistant or similar employee, this change simply creates a long over-due efficiency and recognizes the modern reality that high-level officials subject to service have security concerns. As a result, it is frequently not possible for strangers effecting service to get access to these persons without undue expense and unreasonable tactics.

The Petition should be adopted in full.

Sincerely,
/s/ Ryan Skiver
markdb54
Posts:

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18 Nov 2011 11:16 AM
Mark D. Bradshaw
The Bradshaw Hogle Firm
1013 S. Stapley Dr.
Mesa Az 85204
480-835-5553 (ofc)
480-461-0533 (fax)
mark@thebradshawfirm.com
Bar #007170

I support the Petition for the reasons stated by Geoff Trachtenberg and Dave Abney. The existing rule is a trap for the unwary, and a substantial and unjustified expense for the wary -- and sometimes the rule is impossible to comply with, especially in the context of Notices of Claim. Service of claims and lawsuits on governmental entities should be simple and easy, so that citizens' constitutional right to seek redress of government wrongs is a meaningful and protected right.
afindling
Posts:

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18 Nov 2011 12:57 PM
Anne Findling
Robbins & Curtin, p.l.l.c.
301 E. Bethany Home Rd., Suite B 100
Phoenix AZ 85012
(602) 285-0100
anne@robbinsandcurtin.com
010871

I write in support of the Petition. In my practice, I speak with many individuals with potential claims against governmental entities. Many of those individuals are unable to find an attorney to represent them within the statutory notice of claim period. Unrepresented claimants have substantial obstacles in preserving their claims, including confusing service requirements. Both represented and unrepresented individuals should have the ability to present claims in a simple and straightforward process. This petition reflects a significant step forward. Further, it discourages gamesmanship in the accessability and availability of governmental officers and executives. For the reasons stated by others in this forum, I support the proposed change.
MichaelLarkin
Posts:

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18 Nov 2011 01:00 PM
Michael E. Larkin
LAW OFFICE OF MICHAEL E. LARKIN
405 W. Franklin St.
Tucson, AZ 85701
520-620-6702
michael@larkinlaw.psemail.com
9497

I recommend the change to Rule 4 requested by Attorneys Trachtenberg and Abney. Rule 1 of the A.R.C.P. provides that the rules of civil procedure "shall be construed to secure the just, speedy, and inexpensive determination of every action." The present wording and interpretation of the rule subsections regarding service of a notice of claim on the state and its political subdivisions does not comport with the spirit or letter of Rule 1. The rule regarding service of a notice of claim, as interpreted, is a unnecessary minefield. The rule should be modified to provide for an expeditious and inexpensive service of a notice of claim that serves the underlying reason for notice of claim process. The extraordinary measures required by the rule and current interpretations of it have no reasonable connection to the purpose of the notice of claim. A change is necessary. The proposed change is a sound and overdue revision.
MichaelLarkin
Posts:

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18 Nov 2011 01:31 PM
Michael E. Larkin
LAW OFFICE OF MICHAEL E. LARKIN
405 W. Franklin St.
Tucson, AZ 85701
520 620 6702
michael@larkinlaw.psemail.com
9497

The rule regarding service of a notice of claim needs to be changed. As it presently exists and has been interpreted, it is an unnecessary minefield. In its present construction, it serves no useful purpose related to the underlying rationale for the notice of claim. Rule 1 of the A.R.C.P. requires that the rules "shall be construed to secure the just, speedy and inexpensive determination of every action." The present construction of the rule regarding service of a notice of claim on political subdivisions of the state does not comply with Rule 1. The proposed revision made by Attorneys Trachtenberg and Abney is a necessary and reasonable modification which serves the purpose of the notice of claim requirement and achieves the intent of Rule 1 without imposing any hardship on any subdivision. I urge you to adopt it.
Michael E. Larkin
Verderame
Posts:

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18 Nov 2011 01:40 PM
Frank Verderame
Plattner Verderame, P.C.
P. O. Box 36570
Phoenix, AZ 85067-6570
602-266-2002 (office)
602-266-6908 (fax)
fverderame@plattner-verderame.com
Bar No.: 007519

I support Petition R-11-0031 for the reasons stated by Geoff Trachtenberg, Dave Abney and others.

Service of claims and lawsuits on governmental entities should be simple and easy, so that citizens' constitutional rights to seek redress of government wrongs is meaningful and protected. The existing rule is a trap for the unwary and creates substantial and unjustified expense.

With respect to serving one member of a group, the problems with the existing rule became most evident after the Falcon decision which, in part, based its holding upon "fulfill[ing] the purposes of the notice-of-claim statute." The Court in Falcon, however, should not have interposed any Legislative intent while interpreting the Court's own Rules of Civil Procedure since the Legislature has no role in promulgating those rules.

In addition, to the extent the Falcon decision rests upon concerns related to allowing service upon "one member" of a public body, it is imp ortant for the Court to recognize that these persons were elected or appointed to supervise and oversee important public functions. It certainly seems reasonable for those persons to be able to accept basic service related to their public office and, to the extent they cannot appreciate the significance of being served, its hard to imagine the entire group would be any better at appreciating the significance.

As the Court is aware, Rule 4.1(j) has long allowed for service upon one member of a public body and that is the "default rule" when Rule 4.1(i) is not applicable. It makes no sense to allow this kind of service under one rule but not the other.

With respect to serving an administrative assistant or similar employee, this change simply creates a long over-due efficiency and recognizes the modern reality that high-level officials subject to service have security concerns. As a result, it is frequently not possible for strangers effecting service to get access to these persons without undue expense and unreasonable tactics.

The Petition should be adopted in full.
nickmoceri
Posts:

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18 Nov 2011 03:25 PM
Nicholas Moceri
Nick Moceri P.C.
122 N. Cortez, suite 220
Prescott, AZ 86301
tel. 928-778-2444
fax: 928-445-6515
email: nick.moceri@azbar.org
Bar # 006038

Gentlepersons:

I support the rule change for the reasons cited by Geoffrey Trachtenberg, David Abney and others. Service of notice was intended to give notice, not to be a hurdle one has to jump before being allowed to proceed with a legitimate claim. The current state of the rules reportedly has persuaded some public officials to engage in game playing in attempts to induce insufficient service by uninformed claimants, thus allowing avoidance of payment of legitimate claims. The proposed changes would go a long way toward removing an unintended roadblock while still adequately protecting the interests of the governmental entities affected.

Thank you,
Nick Moceri
bta4369
Posts:

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21 Nov 2011 09:22 AM
Brian Allen
Udall, Shumway & Lyons, PLC
30 W. First Street
Mesa, AZ 85201
(480) 833-9392
bta@udallshumway.com
Bar #17102

I agree the rule should be amended to clarify the manner in which claimants may serve a notice of claim or lawsuit on a public entity. The proposed rule change provides a simpler but just-as-effective mechanism to give public entities actual notice of pending claims, which after all, is the purpose of the notice of claim statute. The rule as it currently stands is nothing more than a procedural trap that may prevent meritorious claims from going forward. The proposed change is fair. It provides claimants a clear-cut manner in which to serve process while still providing public entitles actual notice of pending claims.

lkoschney
Posts:

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21 Nov 2011 11:15 AM
James E. Marner
Shultz & Rollins, LTD.
Attorneys At Law
1980 E. Fort Lowell Road
Suite 200
Tucson, AZ 85719
Ph: (520)577-7777
Attachments
lynn.goar@azbar.org
Posts:

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23 Nov 2011 12:50 PM
Lynn Goar
1955 W. Grant Rd. Ste. 125
Tucson, AZ 85745-1481
lynn.goar@azbar.org

I have read this Petition and all of the previous comments. As can be seen, this change is necessary to clarify and streamline service on governmental entities. As it stands now, the rule can be used as a trap for the unwary, elevating process over substance. Litigation over this issue is unnecessary and expensive to all litigants, costing the taxpayer. In short, this Petition should be adopted in full!

lkoschney
Posts:

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28 Nov 2011 01:54 PM
Jonathan V. O'Steen
O'Steen & Harrison, PLC
Suite 400
300 West Clarendon Avenue
Phoenix, AZ 85013-3424
Ph: (602)252-8888
Fax: (602)274-1209
E-mail: www.vanosteen.com
Attachments
sgeofeldman
Posts:

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06 Dec 2011 12:14 PM
Stanley G. Feldman (000838)
One South Church Avenue, Suite 900
Tucson, Arizona 85701-1620
Tel: 520 792 3836
Fax: 520 624 5080
E-mail: sfeldman@hmpmlaw.com

The pending petition would change Rule 4.1(i) by adopting the language from existing Rule 4.1(j). This would permit service of a notice of claim on a governmental entity by serving the notice on the entity’s “person, officer, group or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon any person who is a member of the ‘group’ or ’body’ responsible for the administration of the entity shall be sufficient.”

This would eliminate the Falcon rule, which in effect requires service on every member of the board, governing group, or body - a requirement that is difficult and expensive to complete and often results in having to inconvenience the members of the public entity. Falcon v. Maricopa County, 213 Ariz. 525, 144 P.3d 1254 (2006).

Rule 4.1(j) permits service of summons on governmental entities through service on any person who is a member of the group or body that is responsible for the administration of the governmental entity. There is no good reason that the same language should not be used in Rule 4.1(i).

The language in Falcon, which indicates that individual members of governmental boards or bodies may not know the importance of the service of the notice of claim, misses the point. 213 Ariz. at 529, 144 P.3d at 1258. Service of a notice of claim is not like service of a summons and complaint. It does not result in a default judgment. The only result that occurs when and if a board member fails to report the service to the proper administrative section of the entity is that the claim is denied. There is no harm to the governmental body.

When the claim is denied, the claimant has the option of filing suit. If suit is filed, service will be made in accordance with the applicable Rules of Civil Procedure. The governmental body can then decide if it wishes to settle the matter without further litigation.

There is no reason not to approve the petition and thus do away with the awkward methodology required by the Falcon rule.

clague3
Posts:

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18 Jan 2012 01:40 PM
Clague A. Van Slyke, III
Clague A. Van Slyke, III, Attorney at law
2401 E. Speedway Blvd.
Tucson, AZ 85719
(520)325-8660
fax (520) 325-8565
Clague.A.VanSlyke,III@azbar.org
007100

I voice my support for the proposed rule change. The evolution of the case law surrounding service of process of a notice of claim has gone far beyond the intent of the legislature in enacting the notice of claim statute. The interpretation of the rules of civil procedure have created an impossible catch 22 that has denied legitimate claimants the right to have their claims addressed. The current rules create virtually impossible distinctions regarding who or how to serve process that even our courts struggle with. A real world example is similar to my office setting. Two lawyers who are statutory agents are served with complaints multiple times per week. Our office staff knows that they can not accept service and they decline service. In that case the attorney and claimant know that service has not been effected and the correct process can occur. However, I have served notice of claims on mostly rural communities or entities and have had well meaning individuals accept service thereby creating a false sense of security. It is only after the fact that the entity served can come back and benefit from their own mistaken conduct. How is that fair? Streamlining and clarifying these inconsistent rules so that service of process rules are fair, uniform and promoting of the essential purpose of the statute and the process is reasonable, fair and equitable. The current process is not and it harms the legal system when valid claimants are denied a fair consideration of their claims because of hyper technical construction of these rules. Our legal system takes pride in allowing individuals the right to an orderly and equitable mechanism for resolution of disputes. Fixing these rules would help accomplish this goal.
egilbride
Posts:

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01 Mar 2012 03:33 PM
Eileen Dennis GilBride
Jones, Skelton & Hochuli, P.L.C.
2901 N. Central Avenue, Suite 800
Phoenix, Arizona 85012
602-263-1787
600-200-7827
egilbride@jshfirm.com
Arizona State Bar # 009220

I oppose the proposed rule change for the reasons stated in the attached.
Attachments
gemery
Posts:

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07 Mar 2012 10:11 AM
Garnet K. Emery
Bullhead City Attorney
2355 Trane Rd.
Bullhead City, AZ 86442-5966
928-763-0155
gemery@bullheadcity.com


I oppose the proposed rule change for those reasons stated by Eileen Dennis GilBride of Jones, Skelton & Hochuli, PLC, stated under the post dated 3-1-2012.
paigemartin
Posts:

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03 Apr 2012 03:16 PM
Paige Martin
8601 N. Scottsdale Rd., Ste. 300
Scottsdale, AZ 85253-2742
480-429-4827
Paige.martin@kutakrock.com


I oppose the proposed rule change for those reasons stated by Eileen Dennis GilBride of Jones, Skelton & Hochuli, PLC, stated under the post dated 3-1-2012.
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