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Last Post 02 Jul 2012 11:54 AM by  mlanda
R-12-0008 Petition to Amend Rules 4.1(d) & 5(c), Rules of CV Procedure; and Rule 41(C) & 41(D), Rules of Family Law Procedure
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lkoschney
Posts:

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12 Jan 2012 03:29 PM
    R-12-0008

    Petition to Amend Rule 4.1(d), 5(c), Rules of Civil Procedure, & Rule 41(C), 41(D), Rules of Family Law Procedure

    Would clarify rule, including defining a "person of suitable age and discretion"

    Petitioner:
    Arizona Process Servers Association
    %Patty Chlebanowski, Secretary
    1145 W. McDowell Road
    Phoenix, AZ 85007
    Ph: 602-258-0022 ext. 106
    E-mail: pattyc@frontierpps.com

    Arizona Process Servers Association
    PO Box 2233
    Phoenix, AZ 85002
    Ph: 602-476-1737
    E-mail: apsaadmin@cox.net

    COMMENTS DUE MAY 21, 2012

    Rejected 8/28/2012
    Attachments
    GeorgeKing
    Posts:

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    25 Jan 2012 12:22 AM
    George H. King
    Lang Baker & Klain
    8767 E. Via De Commercio, Ste. 102
    Scottsdale, AZ 85258-3374
    Tel: 480-947-1911
    Fax: 480-970-5034
    gking@lang-baker.com


    I oppose the change with respect to allowing substitute service on an individual "who stated or appeared that he or she was at least 15 years of age at the time of service, who shall be informed of the general nature of the legal process." The change proposed in this Petition would allow service of process on a disabled or incompetent person, so long as that person said they were 15 years or old, or appeared to be 15 or older, regardless of whether the person's disability or incompetence was obvious. The phrase "suitable age and discretion" does not allow for such an absurd result, and should be retained. On this point, the Petition should be rejected.
    BRGOLDMAN
    Posts:

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    25 Feb 2012 10:19 AM
    BARRY R. GOLDMAN
    RapidRPS.com
    500 N Estrella Pkwy #B2-441
    Goodyear, AZ 85338
    877-472-7431
    service@rapidrps.com
    Attachments
    GeorgeKing
    Posts:

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    17 Apr 2012 04:34 PM
    George King
    Lang Baker & Klain
    88767 E. Via De Commercio, Ste. 102
    Scottsdale, AZ 85258-3347
    Tel: 480-947-1911
    Fax: 480-970-5034
    gking@lang-baker.com

    Mr. Goldman's February 25, 2012 comment proves why the proposed amendment is inappropriate and should be rejected. The proposed change would allow service on anyone "who stated or appeared that he or she was at least 15 years of age at the time of service" regardless of whether that person was of suitable age and discretion to accept service of process on behalf of another resident of that home. Mr. Goldman, however, starts his comment by stating that in his 24 years of experience, he has "encountered numerous parties at residences who, while they appeared on the surface to be of "suitable age and discretion", after questioning the person, determined they were not." That is, Mr. Goldman supports a change to the rule that on its face would allow service on individuals that he determined should not be served.

    Mr. Goldman apparently believes that under the proposed rule, a court would still have some sort of discretion to reject service, but that is not the way the proposed rule is written. For example, he states that "[t]he proposed rule would give a uniform standard by which the minimum age of depositing legal process with a person other than the defendant is set forth," but the proposed rule does not state a minimum standard (at least fifteen) that is subject to further scrutiny and judicial review. Instead, the proposed rule states that a person may be served by delivering papers to anyone who stated or appeared that they were at least fifteen years of age without further inquiry or qualification. Many people with less integrity than Mr. Goldman (such as the attorneys he cites who want to serve eight-year-old latchkey children) will read the proposed rule to allow service on anyone who is at least fifteen years old, especially given that the rule change is to remove the limitation that the person be of suitable age and disrection.

    I appreciate the proposed amendment to the petition to add a limitation to allow service only on individuals "who appeared to be competent to accept service of process," but I don't see how that is any less allegedly vague or unworkable than "suitable age and discretion." Such a change would make prior case law interpreting "suitable age and discretion" useless, but providing nothing helpful in return.

    Finally, I did not mean to imply that every disability impaired the ability to understand service of process. I was thinking of develomental disabilities, in particular, that might not be obvious to a process server. Under the proposed rule amendment as filed, the process server would be the one and only gatekeeper under the proposed rule to decide whether service is valid on, for example, a fifteen-year-old boy on the autism spectrum. This seems like a step backwards from the current rule.
    AZStateBar
    Posts:

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    14 May 2012 02:46 PM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, Arizona 85016-6266
    602.252.4804
    John.Furlong@staff.azbar.org
    Attachments
    Arizona Association of Certified Process Servers
    Posts:

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    17 May 2012 11:56 AM
    My name is Cameron Janati, I am a certified process server in Maricopa County and the Secretary for the Arizona
    Association Certified Process Servers. The following is our considered opinion on the proposed changes to Arizona Rules of Civil Procedure (ARCP) Rule 4.1(d) 5(c), and Rule 41(C), 41(D) of Arizona Rules of Family Procedure.

    We are opposed to the proposed rule change to require personal service of any pleading which may result in the issuance of a civil arrest warrant. We believe this creates an undue burden upon an officer of the court by requiring us to read and interpret the meaning of the legal document being served. Also, a potential additional expense is created and incurred upon the certified process server as well as the delay in the progression of the court case in instances when another resident answers the door and states that respondent/defendant is not home. The respondent/defendant becomes notified of the reason of our visit and therefore no resident will answer the door on future serve attempts. The law currently allows substitute service for such documents, and we find no substantial reason to alter it.

    We are opposed to the proposed change to specify the minimum age of service to 15 who is a member of the household. We feel the language of this proposed change is convoluted in its writing. A person can appear to be 15 to a reasonable person, and not be, and there are many possibilities to one's definition to who exactly qualifies as a member of the household. More importantly, the proposed change takes out the language of "suitable age and discretion." The word discretion is of the utmost importance because a person can be 40 and not be qualified to accept service if they appear to lack the required mental capacity to understand the action of service of process. We also are opposed to the language of "person apparently in charge therein." This can lead to a lot more challenges to service of process (motion to quash Service of Process) because of its vague writing and can leave open ended interpretation to mean that a babysitter could be sub-served or some other party who does not necessarily reside in the residence.

    We do not support the proposed change to allow substitute service upon a security guard who is manning an entrance of a gated community where a defendant/respondent resides within. We believe this creates an issue of whether the person intending to be served is receiving their proper due process. Too many variables exist. The person may be a renter or seasonal visitor, or they may have moved, be in the hospital or care facility, or be on an extended vacation. or the house may be under renovation and the party living elsewhere temporarily. In addition, we do not believe this is fulfilling an officer of the court's duty to the court. There is also the potential issue of a shift change with the guards, and also feel it places an undue burden upon this individual as well and places the issue of due process into their hands. The Certified Process Server's ability to gain access through gated communities to an individual's home is an issue that belongs in A.R.S. 11-445. It would make more logical sense to create a provision where due notice can effectively be carried out for the court. Serving the gate guard does not fulfill the courts required "notice." Creating an amendment to A.R.S. 11-445 would allow the Certified Process Server access to the common area and would allow for an appropriate required form of service.

    For similar reasons listed above, we are not in favor of a valid service of process occurring by serving an employee of mailbox store such as a UPS store when it is believed that the person to be served rents a mailbox at such facility. It creates a potential major due process issue. Many people may not check their mailbox on a regular basis, or may live out of state. It could be months before they check their mail in which enough time could pass for a judgment to be entered against a person before they received their documents. There maintains an undue burden upon an employee of such a facility thus creating an unnecessary and wrongful responsibility of due process in their hands. The qualifications for such an individual would be acceptable for a person living within the same household, however for a complete stranger who does not know the person being served or does not reside with them, one should not carry the same responsibility upon their shoulders. The mailbox store employee may be a minor or may not like the "customer" to be served. This moves the method of service way down the food chain which can frustrate or defeat service.

    Our duty as certified process servers is ensuring notice to an accepted party; these changes obviate that duty and could have deleterious effects upon the case. These ill-conceived and poorly drafted changes to existing Rules of Civil Procedure do not improve to any degree the sanctity of service of process in spirit and in deed.

    Respectfully,

    Cameron Janati, Secretary of Arizona Association of Certified Process Servers

    Arizona Association of Certified Process Servers
    PO Box 14151
    Tucson, AZ 85732
    info@aacpservers.org
    (928) 210-3145
    BRGOLDMAN
    Posts:

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    21 May 2012 12:46 AM
    BARRY R. GOLDMAN
    RapidRPS.com
    500 N Estrella Pkwy #B2-441
    Goodyear, AZ 85338
    877-472-7431
    service@rapidrps.com

    As the primary author of the Petition, the undersigned, individually, and as a member of the Petitioner, responds to recent comments by the State Bar and other persons regarding the instant Petition.

    Firstly, to clarify, the State Bar erroneously indicates the number of the Petitioner's membership as "…approximately ninety process servers…". For the record, per the Administrator's report released to the Board of Directors of the Arizona Process Servers Association (APSA), current membership as of this date is 143 dues paying members.
    The undersigned appreciates the opportunity to respond to the State Bar's concerns, and shall do so as follows:

    I. “A PERSON OF SUITABLE AGE AND DISCRETION” VERSUS A PERSON “WHO STATED OR APPEARED THAT HE OR SHE WAS AT LEAST 15 YEARS OF AGE”
    Regarding the State Bar's concern that the Petition "seeks to redefine the competency requirements" of a person who may accept service, the undersigned believes this perception to be in error. While there is no dispute that the term, "someone of suitable age and discretion" is a "…patently subjective analysis…", APSA has found that there is a statewide need for a "concrete" definition of a person of suitable age and discretion. Arizona currently lacks such a definition and the Petition merely seeks to set forth such a definition in rulemaking to provide direction to the Process Server and other persons authorized to serve legal process.
    Neither the undersigned nor the APSA Board has not found a "substantial body of case law" to clarify what "suitable age and discretion" means in the context of service within Arizona, and accordingly believes the issue is one of statewide importance.

    While the State Bar states that practitioners (attorneys) have not seen issues arising out of the substituted service of process, individual process servers have. Complaints against Process Servers are resolved before the Presiding Judge of the Superior Court in each county (per ACJA §7-204). Most complaints come to the attention of the courts from individuals, i.e.: parties in pro per. The lack of information on such complaints emanating from practitioners is irrelevant. Numerous complaints have been either dismissed or resolved at the local level, without the need or assistance of "Arizona practitioners". An informal survey of such complaints indicates that the majority have been filed for "unprofessional conduct", with several, notably having been filed for performing substituted service on a minor.

    While there is an acknowledgment that service may currently be made upon a person of "suitable age and discretion", it should be recognized that certain issues have occurred in Arizona which Petitioner believes necessitate a need for a specific direction from the Supreme Court under the Rules. Petitioner, in the interest of the courts and public, submitted the Petition in the hope of minimizing the issuance of complaints of "unprofessional conduct", and establishing firm direction under the Rules of Civil Procedure, rather than the undefined and nebulous, "suitable age and discretion".

    A total of 19 other states have established hard and fast rules or statutes indicating what is considered the minimum "suitable age" of a person (i.e.: California, Colorado, Idaho, Iowa, Pennsylvania:18 years; Mississippi, Texas, Virginia, West Virginia: 16 years; Florida, Missouri, New Mexico, New York, Oklahoma: 15 years; New Jersey, Oregon, South Dakota, Wisconsin, Wyoming:14 years; Illinois: 13 years. Texas does not allow a substitute service without a court order.) Arizona is one of the states which does not define "suitable age" of a person with whom legal process may be left. Because of this lack of definition, service of process within Arizona lacks consistency throughout the state. Petitioner has submitted the Petition to address such issues of inconsistency.

    While APSA understands the concerns of the State Bar, a modification to the proposed language has been discussed and will be put forth in the official response of APSA in a matter of days. Such would call for defining the minimum age of a person of "suitable age and discretion" to be at least one “who stated or appeared that he or she was at least 15 years of age”. The undersigned believes that combining the current language with a modification of the proposed language would actually provide a more objective standard for service of process.

    The last thing that Petitioner and the undersigned would like to see is a deprivation of rights of the person served, nor a muddying of the waters or further uninvited litigation. The Petition was put forth in good faith in the hope that a certain clarity would be established.

    The State Bar's concern that "…the proposed amendment requires the process server to engage in what might be extensive and unwelcome communication with adolescent children regarding 'the general nature of the legal process,' setting the stage for a variety of complaints or worse" is believed to be unfounded. Any concern the State Bar would have over the "nature and quality of the instruction provided" is a non-issue.
    Currently, in order to determine if a person is of "suitable age and discretion", certain conversation must take place between the Process Server and such person with whom the legal process may be left. This may be as simple as advising the person with whom the legal documents are being left that the documents are related to a lawsuit and the defendant should be given the documents, then ascertaining their response for understanding of the import of such documents. At no time is the proposed language intended to be an unwarranted intrusion into a person's privacy, nor anything more than advising the person that the documents are legal process and of their importance. Thus, informing a person of the general nature of the legal process is intended to be something simple and straightforward. No "Miranda Warning" is required nor intended.

    As to any concerns the State Bar or others may have in ascertaining the age of the person with whom the legal process is left, many Process Servers, the undersigned included, utilize notes on their work sheet which indicates the physical description of the person with whom the legal process was left (sex, race, age, height, weight, hair, eyes, glasses). There are times when as Process Servers, we may directly ask the person contacted their age, so that such may be noted accordingly. Obtaining and noting this information further protects the Process Server, attorney and client from claims of non-service, and frivolous motions to vacate a default judgment.

    II. SUBSTITUTE SERVICE
    A. Service upon Individuals Residing in Gated Communities
    Currently, there are numerous gated communities in Arizona. While the Petitioner recognizes the property rights of individuals who choose to reside in such communities, the Petition is meant to address the issue of the courts and litigants having to go to excess lengths to accomplish service of legal process. Although Rule 4.1(m) has provided the alternate means of service which may be necessary under circumstances where the defendant has made him/her self unavailable, the burden placed on the litigant is one which may be undue and cause for additional expense for service of process.

    The Petition addresses the guard (gatekeeper) acting in the capacity as an agent of the homeowner/defendant. Under the circumstances addressed in the Petition, the guard is retained or employed by the homeowners association (HOA), who is acting on behalf of the homeowner in setting forth a policy of denying access to the property to even attempt service. Accordingly, in such deed restricted communities, as the gatekeeper is denying access on behalf of the homeowner, the gatekeeper thus controls who may enter and who may not. This creates an artificial environment of privilege and an exclusion zone, wherein the homeowner is essentially immune from service of legal process.

    Thus, upon a denial of entry, the Process Server must render a declaration/affidavit to that effect, and present it to the client, who then must either directly (in pro per) or through counsel, file a motion under ARCP Rule 4.1(m), increasing the time to serve the person, and the litigant's expenses related to service of process.
    While the State Bar references McAuliffe, et al, the undersigned reiterates from Petitioner's original Petition:
    Further, Bein v. Brechtel-Jochim Group, Inc. [(1992) 6 Cal.App.4th 1387, 8 Cal.Rptr.2d 351] addresses the issue (in California) with regard to service of process where the person controlling access to the private community does not permit entry for the service of process. In its decision, the Court said, "Litigants have the right to choose their abodes; they do not have the right to control who may sue or serve them by denying them physical access." We believe the same is true for litigants in Arizona, as well.

    The changes sought to allow service upon a guard at a gated community are sought to expedite service of process, and do so with minimal cost to the litigant.
    Currently, Rule 4.1(m) provides no certainty of the issuance of an Order, nor does it likewise cap the expense that the litigant must entertain to accomplish service of process. As to the due process rights of residents of such communities, as the HOA is an agent of the homeowner, and the guard is also by extension an agent of the homeowner, it is a logical conclusion that the exclusion of Process Servers and others authorized to serve legal process is by choice of the homeowner, and not by random act or occurrence. Thus, it would be incumbent upon the homeowner to allow access to such community to ensure their due process rights are not infringed by their agent.

    The substituted service rule proposed in the Petition would only come into effect if and when the Process Server is denied access to the community for the specific purpose of service of process. If the Process Server is allowed access and no service is made at the residence, service upon the guard may not be made, as the guard has allowed access.
    Again, as to informing the guard of the general nature of the legal process, such a common sense act when serving legal process should be recognized and appreciated, rather than leaving the papers without explanation. Again, informing a person of the general nature of the legal process is intended to be something simple and straightforward.

    B. Service upon an Individual at the Individual’s Usual Place of Business or Usual Mailing Address
    Currently, there are numerous instances where the service of legal process must be done at a person's place of business or "usual mailing address". As Process Servers, we have found that a person may have a residence address which is unknown, but their work location or place where they receive mail is known. Sometimes, a litigant is able to obtain an Order under ARCP Rule 4.1(m), however, as stated previously, not without additional expense and effort.

    Other states permit service at a person's place of employment. Arizona does not restrict such service, so long as such is personal service, excepting where a landowner or tenant excludes a Process Server or other person authorized to serve legal process under the trespass statutes.
    The State Bar's contention that substituted service under the proposed changes at a person's place of employment "fails to adequately protect the due process rights of the person to be served" conflicts with the existing rule, (Rule 5(c)(2)(B)(i)), which states that service may be made by leaving the legal process "…at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office…". The Petition addresses substitute service at a place of business not by leaving the legal process "in a conspicuous place in the office", but by actually delivering the documents to a person "apparently in charge", and thereafter mailing said documents. Equal concern should be given to the rights of the person served before and after appearance.

    The State Bar's concern about service made at a person's “usual mailing address” specifically is intended to address the problem of defendants who utilize Commercial Mail Receiving Agencies (CMRA's). Accordingly, Petitioner shall submit a more specific definition of the term, "usual mailing address".

    III. SERVICE OF DOCUMENTS COMPELLING CONDUCT WHERE THE FAILURE TO COMPLY MAY SUBJECT AN INDIVIDUAL TO A CIVIL ARREST WARRANT OR CONTEMPT OF COURT
    The petition seeks to clarify the requirement that certain documents, such as an order or subpoena where failure to comply may cause a court to issue an arrest warrant, or an order to show cause where the court may issue an order of contempt, be personally served on the person. APSA has been informed that there have been instances where personal service of the legal process (actual notice) has not been effected, and warrant(s) issued for the arrest of person(s) who did not appear. While the proposed rule may be redundant in light of Rule 64.1(b), the undersigned quotes from Mr. Janati, the representative of the "Arizona Association (of) Certified Process Servers", who claims that,

    "The law currently allows substitute service for such documents, and we find no substantial reason to alter it."

    As Mr. Janati represents his association, and has put forth his association's policies and beliefs, the undersigned would submit there is definitely a need for clarification in the rules, especially and specifically to address this issue.

    In closing, again, the undersigned, while the primary author of the Petition, submits this response individually and as a member of APSA. I support APSA's efforts in the proposed rule changes, and would urge their adoption by the Supreme Court.

    GeorgeKing
    Posts:

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    07 Jun 2012 03:26 PM
    George H. King
    Lang Baker & Klain
    8767 E. Via De Commercio, Ste. 102
    Scottsdale, AZ 85258-3374
    Tel: 480-947-1911
    Fax: 480-970-5034
    gking@lang-baker.com

    The previous comment asserts that a requirement for personal service of certain court orders (which, if not obeyed, could lead to issuance of civil arrest warrants) may be unnecessary in light of Rule 64.1(b). This is not correct. Rule 64.1(b)(1) only requires that the subject of the order to have "received actual notice of such order" before a civil arrest warrant can be issued. "Actual notice" can be accomplished, and is intended to be accomplished, by substitute service. One hopes that a person who served by substitute service at some point receives actual notice of the documents that are served.

    The entire point of substitute service is that the intended recipient receive "actual notice" of the order. The reference to "actual notice" allows the intended recipient to assert a defense to non-appearance that they were not aware of the order, despite it having been served on someone else (e.g., a co-resident of their home).

    All of that being said, my personal opinion is that Rule 64.1(b) need not be amended, given that there appears to be no actual problem with improper issuance of civil arrest warrants.
    mlanda
    Posts:

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    02 Jul 2012 11:54 AM
    Arizona Process Servers Association
    %Patty Chlebanowski, Secretary
    1145 W. McDowell Road
    Phoenix, AZ 85007
    Ph: 602-258-0022 ext. 106
    E-mail: pattyc@frontierpps.com

    Arizona Process Servers Association
    PO Box 2233
    Phoenix, AZ 85002
    Ph: 602-476-1737
    E-mail: apsaadmin@cox.net
    Attachments
    Topic is locked