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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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jonihoffman
Posts:

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06 Apr 2012 01:11 PM
Joni Hoffman (#015456)
General Counsel
League of Arizona Cities and Towns
1820 W. Washington Street
Phoenix, AZ 85007
jhoffman@azleague.org
602.358.0096
Fax: 602.253.3874


I oppose Petition R-11-0031 on behalf of The League of Arizona Cities and Towns, which represents all 91 incorporated cities and towns in Arizona. The Court must view the change from the perspective of cities and towns large and small. The purpose of the notice of claim requirement is to promote negotiation and potential settlement because taxpayer monies are involved. This goal of reducing costly lawsuits will not be realized under this proposed rule change. Instead the opposite will be true because of the increased risk that comes with relying on one person, possibly an administrative assistant, to understand the importance of the notice when it arrives in the mail and forward the notice to the appropriate person. The current rule is not burdensome in light of the goal of the statute and it should not be amended.

mwright
Posts:

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06 Apr 2012 03:27 PM
Matthew W. Wright, Esq.
HOLM WRIGHT HYDE & HAYS PLC
10429 South 51st Street, Suite 285
Phoenix, AZ 85044
Phone: (480) 961-0236
Fax: (480) 961-0818
mwright@holmwright.com
AZ Bar No.: 014104


I oppose the proposed rule change for the reasons stated in the attachment.
Attachments
jtmurray
Posts:

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23 Apr 2012 02:28 PM
Jeffrey T. Murray
LASOTA & PETERS, PLC
722 E. Osborn, Suite 100
Phoenix, Arizona 85014
(602) 248-2900
(602) 248-2999
jtmurray@lasotapeters.com
Arizona State Bar # 19223

The Arizona Municipal Risk Retention Pool and Valley Metro – RPTA oppose the proposed rule change for the reasons stated in the attached, and for the reasons stated in the comments submitted by Eileen Gilbride of Jones, Skelton and Hoculi, and Joni Hoffman of the Arizona League of Cities and Towns.


Attachments
BDoyle
Posts:

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25 Apr 2012 06:26 PM
William H. Doyle
The Doyle Law Firm
1313 E. Osborn Road, Suite 220
Phoenix, Arizona 85014
bdoyle@doylelawgroup.com

I oppose the petition. The underlying purpose of the service of process, whether of a complaint or a notice of claim, is to insure that the affected party is notified. This amendment increases the possibility that the legal papers will be served on the unaware or unassuming and not alert the individual responsible for responding that a service event has taken place. The rule is unreasonable as drafted.

William H. Doyle
shaynes
Posts:

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04 May 2012 06:23 PM
Sharon Haynes (009113)
Assistant Chief Counsel
Phoenix City Attorney's Office
200 W. Washington, 13th Floor
Phoenix, AZ 85003
sharon.haynes@phoenix.gov

I oppose the proposed amendment to Rule 4.1(i) for the reasons stated by Eileen Dennis GilBride, Matthew Wright, Joni Hoffman, Jeffrey Murray and William Doyle.
AZStateBar
Posts:

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07 May 2012 04:27 PM
John A. Furlong, Bar No. 018356
General Counsel
State Bar of Arizona
4201 North 24th Street, Suite 100
Phoenix, Arizona 85016-6266
602.252.4804
John.Furlong@staff.azbar.org
Attachments
kcgreif
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14 May 2012 11:04 AM
Kevin Greif
1140 North Opal Drive
Prescott, Arizona 86303
Telephone: (928) 776-2422
Email: kcgreif@hotmail.com

A Claimant's perspective and possibly a better solution.
Attachments
dsethi
Posts:

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14 May 2012 01:13 PM
Dev Sethi
Kinerk Schmidt & Sethi, PLLC
1790 E. River Rd., #300
Tucson, AZ 85718
520-545-1663
dsethi@kss-law.com
www.kss-law.com

I add my support to Petition R-11-0031 for the reasons stated by Geoff Trachtenberg, Dave Abney and may others. The rule change petition should be adopted in full as soon as possible.

Dev Sethi
Jennifer MacLennan
Posts:

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16 May 2012 02:56 PM
Jennifer MacLennan
Gust Rosenfeld
One E. Washington, Suite 1600
Phoenix, AZ 85004
Phone 602-257-7475
Fax 602-340-1538
maclennan@gustlaw.com
Arizona State Bar No. 014530

I oppose the proposed amendment to Rule 4.1(i) for the reasons stated by Eileen Dennis GilBride, Matthew Wright, Joni Hoffman, Jeffrey Murray and William Doyle. I represent school districts. I have recently had an administrative assistant at a school district lose a student record, causing an adverse finding in a special education compliance review. I oppose the petition for all the reasons stated by my colleagues, but I find that provision in particular to be of great concern.
johnr
Posts:

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20 May 2012 11:42 PM
John C. Richardson
AZ State Bar # 00560
DeConcini McDonald Yetwin & Lacy P.C.
2525 E Broadway Blvd. Suite 200
Tucson, Arizona 85716
520 322 5000 Telephone
520 322 5133 Fax
JRichardson@dmyl.com


I oppose the proposed amendment to Rule 4.1(i). I represent public school districts and community colleges. With very few exceptions, these entities operate with five member Governing Boards. Sometimes, a minority of the members of a Governing Board (i.e., one or two Board members),support a particular legal challenge, and do so in good faith, even though a majority of the Board members (i.e., three or four Board members), also acting in good faith, oppose the legal claim being made and will direct the school district or college to defend the claim. If service can occur by serving only the one or two Board members who "favor" a particular claim, the entity could be seriously harmed.

Arizona has over 200 public school districts. There are not only large urban school districts, but also many small, rural school districts. In a large urban school district, the administrative assistant to the Governing Board is relatively likely to be an employee with sufficient experience and training to process properly and in a timely manner legal documents that directly relate to a claim or lawsuit against the school district as well as legal documents that are received by the school district but do not directly involve a lawsuit or claim against the district. (Examples of the latter type of document are subpoenas for student records, routine wage garnishments, etc.) In a small, rural school district, however, one simply cannot assume that the employee who holds this position will have the experience or training necessary to properly and timely process these differing types of legal documents. For example, the person whose job it is to provide assistance to the Governing Board may have a difficult time distinguishing between a letter from a constituent complaining about some school-related topic and a "formal" claim letter. The former can "casually" be sent to the Governing Board members, while the latter should promptly be sent not only to the Governing Board members, but also to the District's legal counsel. Also, this same employee may not easily be able to distiguish between a relatively "routine" subpeona and deposition notice needed to obtain student records on the one hand and a summons and complaint on the other hand.

For the reasons set forth by William Doyle, Jeffery Murray and Mathew Wright, as well as those set out above, I oppose the proposed rule change.
domanico
Posts:

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21 May 2012 12:10 PM
WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
(FIRM STATE BAR NO. 00032000)

MARK C. FAULL
CHIEF DEPUTY
301 WEST JEFFERSON STREET, SUITE 800
PHOENIX, ARIZONA 85003
TELEPHONE: (602) 506-3800
(STATE BAR NUMBER 011474)
domanico@mcao.maricopa.gov

Attachments
Rob Haws
Posts:

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21 May 2012 12:20 PM
Robert Haws
Gust Rosenfeld
One East Washington, Suite 1600
Phoenix, Arizona
602-257-7976
rhaws@gustlaw.com

I oppose the proposed amendment to Rule 4.1(i) for the reasons stated by Georgia Staton, Matt Wright, Eileen Dennis GilBride and others. I frequently represent school districts, cities, towns and other governmental entities. School board members in Arizona are all volunteers and typically meet only twice a month during the school year and less frequently when school is not in session. Accordingly, they have limited contact with staff and even less contact with fellow board members due to the Open Meeting Law. I am aware of numerous instances where mail sent to school district staff that was intended for board members was significantly delayed in actually being given to the board member or was never given at all. Those situations would negatively impact the District's and the board member's ability to evaluate claims and either resolve or properly defend them if the amendment, as written, passed.
jdollins
Posts:

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21 May 2012 03:42 PM
Jeff Dollins (016903)
Mangum Wall Stoops and Warden
100 North Elden
Flagstaff, Arizona 86002
928-779-6951
928-779-1312 (fax)
jdollins@mwswslaw.com

My firm represents school districts and municipalities throughout Arizona.

I/We oppose the proposed amendment to Rule 4.1(i) for the reasons stated by Eileen Dennis GilBride, Matthew Wright, Joni Hoffman, Jeffrey Murray and William Doyle.
clarencemathersonjr
Posts:

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21 May 2012 04:53 PM
Clarnece E. Matherson, Jr.
Tempe City Attorney's Office
21 E. Sixth St., Ste. 201
P.O. Box 5002
Tempe, AZ 58280-5002
clarence_matherson@tempe.gov

The City of Tempe and Tempe City Attorney's Office opposes the proposed rule change as outlined in the attached.
jledbetter
Posts:

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23 May 2012 06:26 PM
James E. Ledbetter, Esq.
The Ledbetter Law Firm, PLC
1003 North Main Street
Cottonwood, Arizona 86326
(928) 649-8777
State Bar No. 012788
jledbetter@ledbetteraz.com

Pursuant to Rule 28(D) of the Arizona Supreme Court Rules, I submit this comment in opposition to the recent Petition to Amend Rule 4.1(i) of the Arizona Rules of Civil Procedure for the reasons stated below and for the reasons stated by Eileen Dennis GilBride, Matthew Wright, Joni Hoffman, Jeffrey Murray and William Doyle.

The Petition is drafted to amend Rule 4.1(i) as it applies to Arizona’s “notice of claim” statute: A.R.S. § 12-821.01. If adopted, the amendment would enact two major changes: (1) service of a notice of claim on a “public entity’s governing group, body, or board” would be satisfied by serving “any member of that group, or body,” and (2) if that member has an “administrative assistant, or employee, who opens mail or legal documents for that person, signs for mail or legal documents for that person, or is authorized to accept delivery of mail or legal documents for that person,” service to those persons would be “sufficient” to satisfy the notice of claim requirement.

In support of the proposed amendment, the petitioners opine that their approach will solve three issues purportedly prejudicing the rights of claimants: (1) the difficulty in determining exactly which party, or parties, must be served, (2) the difficulty in identifying the proper party, or parties, authorized to accept service and (3) confusion surrounding whether or not personal service is required to satisfy Rule 4.1(i) or whether serving assistants, or those who normally accept mail and other important documents for a public employee, will satisfy the service of process requirement.

The proposed amendment will cause more problems than it solves. Thus, the Court should not adopt the language proposed in the Petition because: (1) it does not adhere to the principles of basic due process that are embedded in the intended purpose of A.R.S. § 12-821.01 and attendant case law; (2) the petitioners have overstated the detrimental impact of the current rule on claimants; (3) amending the notice of claim process is a task better left to the Legislature; and, (4) public bodies have individually elected representatives, each of whom is entitled to service out of respect to those who elected the members.

I. The amendment does not adhere to the principles of basic due process that are embedded in the intended purpose of A.R.S. § 12-821.01 and attendant case law.

Adopting the language proposed by the petitioners would result in an inadequate service of process procedure. The purpose of serving process is twofold: (1) to give a party actual notice of the claims against him and (2) to afford the party an opportunity to respond. Marks v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (App. Div. 1 1985). Allowing service on one member of a group to satisfy the notice requirement is problematic since simply “[serving] a notice of claim upon a single member of a multi-member political entity does not necessarily result in successful notice to the entity as a whole, which is the point of A.R.S. § 12–821.01(A) and Rule 4.1(i).” Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 529, 144 P.3d 1254, 1258 (2006). Additionally, “[m]any of the part-time members of political subdivisions, such as school boards, may not appreciate the significance of a notice of claim or realize that such a claim must be acted upon within sixty days . . . . [Furthermore,] the individual served may have no reason to think that he or she was the only member served, and so might not think it necessary to inform others.” Id.

In opposition to this logic, the petitioners argue that the current requirements for service of process are a “trap for the unwary,” and overly burdensome to the point that lawyers often have to “stalk” or “stake-out” the officials that must be served. Moreover, they have implied that determining who must be served, and who is authorized to be served, is an unnecessary “hurdle” for practitioners since there are three sections of the Arizona Rules of Civil Procedure – R. 4.1(h)-(j) – that designate the party that must be served when initiating an action against a government entity. The reality is that the Arizona Rules establish the proper individual(s) to be served as a necessary procedural requirement to ensure that the proper representatives and decision-makers of a government entity receive actual notice of any claims against them and are afforded an opportunity to respond. The language of the proposed amendment would abrogate that ability. Additionally, determining which Rule applies should not hinder any claimant’s ability to exercise their rights. Attorneys licensed to practice in Arizona should have the requisite competence to determine which Rule applies to their alleged cause of action.

II. The petitioners have overstated the current rule’s detrimental impact on claimants.

The petitioners have characterized the service of process procedure as “treacherous or impossible,” since some governmental entities do not specifically identify the “chief executive officer.” Furthermore, the petitioners argue that it is an “extreme [and] expensive proposition” for claimants to be required to serve every member of a school district board, and not just one of its members. The petitioners may be correct, on a basic level, that this requirement increases the costs of service for claimants. Additionally, the process may be somewhat confusing at times. But, the characterization of the process as “extreme,” “treacherous,” or “impossible,” is mere hyperbole. An attorney exercising proper due diligence should be able to ascertain the exact parties that must be served. Additionally, if service to a party proves to be impracticable, the Arizona Rules of Civil Procedure already provide for alternative methods through which the notice of process requirement can be satisfied. See, e.g., Ariz. R. Civ. Pro. 4.1(m). Moreover, a court can determine that the process requirement is satisfied even if every member required to be served is not served. See, e.g., Graham v. Dysart Unified School District, 2010 WL 3401464 (D.Ariz. 2010) (holding that, despite the entire school board not being served, serving a notice of claim on the “only known and legal address” of the school district and to the attorney that represented the district was sufficient to comply with the notice of process requirement).

The fact that plaintiffs may incur additional expense to properly assert their claim is necessary to ensure the litigation process comports with fundamental due process requirements. Every defendant has the right to receive proper notice and adequate opportunity to investigate and respond to a claim. Marks, 146 Ariz. at 15, 703 P.2d at 562. Guaranteeing this right is especially important for public entities, such as school districts, that deal with many members of the general public and are potentially subject to vast amounts of legal action.

III. Amending the notice of claim procedure is a task better left to the Legislature.

The petitioners’ proposed amendment presents issues that should be resolved by the Legislature. Courts have consistently stated that “[t]he purpose of the [notice of claims] statute is to allow the entity and employee the opportunity to investigate and assess their liability, to permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting.” Harris v. Cochise Health Sys., 215 Ariz. 344, 351, 160 P.3d 223 (App. Div. 2 2007). Furthermore, “[c]ompliance with the notice provisions of A.R.S. § 12-821.01(A) is a mandatory and essential prerequisite” to a damages action against an Arizona public entity. Id. See also, Salerno v. Espinoza, 210 Ariz. 586, 588, 115 P.3d 626 (App. Div. 1 2005). If the statutory requirement can be satisfied by allowing service on a single board member, or an “administrative assistant or employee” that works for them, the likelihood that entities will receive actual notice and a meaningful opportunity to respond will be unacceptably diminished. Instead, if a change to the notification procedure is to be made, the more appropriate method is through Legislative action. For instance, the Legislature could mandate the appointment of a statutory agent authorized to accept service of process. This would simplify the claimant’s duty to meet the notice requirement and alleviate many of the concerns addressed in the Petition. In contrast, adopting the petitioner’s approach would frustrate the purpose behind the notice of claim requirements and result in much greater uncertainty in the notification procedure.

IV. Public bodies have individually elected representatives; each of whom is entitled to service out of respect to those who elected the members.

Adopting the proposed amendment would be contrary to certain global public policy concerns. From years of personal experience serving as a school board member, and representing a number of counties and school districts, I have realized the fact that people get elected as representatives for a variety of reasons. In being elected, each individual has been chosen by the public to represent certain interests and to perform the tasks for which they were elected. If service to an individual board member, or administrative employee, is allowed to satisfy Rule 4.1(i) and the notice of claim requirement, the opportunity for every member to meaningfully participate and be afforded adequate time for full preparation and deliberation of the issue, would be significantly diminished. This would offend the entire purpose of having a group of board members empowered to act as a group, not individually. The notice and service of process procedure should empower the board members to separately deliberate, contemplate, and then collectively decide how to proceed. In summary, all board members should have equal opportunity to participate in the decision-making process.

Furthermore, allowing the service of one member, or their employee, to satisfy the notice of claim requirement could lead to conflict with Arizona’s Open Meeting Laws. See ARS §§ 38-431-431.09. Under these laws, school board members cannot deliberate, or make decisions, with each other unless the public is provided access to the meeting. Thus, it seems necessary that all members actually receive notice of the pending claims against them, in order to enable their functioning as a group to be the most effective.

James E. Ledbetter


[b] [/b][b] [/b]
stevekemp
Posts:

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23 Jul 2012 07:33 PM
Stephen M. Kemp, City Attorney
Office of the City Attorney
8401 West Monroe Street
Room 280
Peoria, AZ 85380
(623)773-7330
Arizona Bar Number (010026)
Steve.kemp@Peoriaaz.gov

For the reasons set forth by James Ledbetter, I oppose this proposed rule change to Rule 4.1(i) Arizona.R.Civ.Proc.

Stephen M. Kemp
petergorski
Posts:

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08 Sep 2012 08:33 PM
Peter M. Gorski
Law Offices of Peter Gorski, PLC
40 North Central Avenue, Suite 1400
Phoenix, Arizona 85004
480-730-1777
480-305-5974
pgorski@petergorskilaw.com
Arizona State Bar No. 009102

I support the Petition for the reasons stated by Geoff Trachtenberg and Dave Abney. Reiterating Richard Plattner's excellent and concise summarization, "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."
mgrier
Posts:

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12 Sep 2012 11:11 AM
Mary M. Grier
Assistant City Attorney
City of Phoenix
200 W. Washington St., 13th Floor
Phoenix, Az 85003
(602) 495-0370
(602) 534-7523 (fax)
mary.grier@phoenix.gov
Arizona Bar No. 005103

I support the draft amendment prepared by the Court based upon the comments of the Arizona State Bar. Instead of adopting a new procedure that would create as many problems as it solved, the Court has proposed an amendment that squarely addresses the concerns that prompted the amendment proposed by plaintiffs' lawyers and avoids the problems identified by those who represent governmental entities. The Court's amendment would serve the interest of justice for all concerned, and should be adopted.
ggimbut
Posts:

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19 Sep 2012 04:48 PM
Glenn Gimbut
City Attorney
City of San Luis
1090 E. Union St.
San Luis, AZ 85349
(928) 341-8520
ggimbut@cityofsanluis.org
Bar No. 004467

As a city attorney of a rural town, and one who has represented rural municipalities for the past 23 years, I enjoyed the comments of John Richardson. John, who was describing the nature of school boards, could have just as easilty been describing a typical town council. While these people are elected, this does not mean they will behave in the manner described by some of the first commentators who presume that election means a sudden burst of competancy and professionalism. I have had instances where papers were served on my Mayor who assumed that the same set had been served on me or the Clerk, and simply forgot to inform anyone at city hall. Having service on the office of the municipal clerk allows a muncipality to set up proper systems for processing. It also avoids politicizing the event of service. (I have had the experience of personal injury attorneys arrange a 'photo op' for the press to take pictures of service.) The latest amendment is a vast improvement over what was originally drafted. I support it. I oppose the orignal for the reasons stated by John Richardson, Joni Hoffman. William Doyle, James Ledbetter and others. As Mr. Ledbetter pointed out, the original proposal would create more problems than it solved. As stated by Peter Gorski, the whole idea is for service and notice to be simple to understand and accomplish. In my opinion the latest draft, which requires service upon the clerk, accomplishes both. It does not create new problems and it provides an understandable process.
lkoschney
Posts:

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24 Oct 2012 01:19 PM
Randy A. Scott
Administrator-IPPSOA
343 Hazelwood Ave South
Lehigh Acres, FL 33936
Ph: (239) 300-7007
randy@ippsoa.com
Attachments
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