Go to previous topic
Go to next topic
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”)
 60 Replies
Author Messages
gtrachtenberg
Posts:

--
23 Sep 2011 05:37 PM
    Petition to Amend Rule 4.1(i), Ariz. R. Civ. P.

    Would permit service of process on an administrative assistant or employee of a chief executive officer, secretary, clerk, or recording officer of a public entity's governing group

    Petitioners:
    Geoffrey M. Trachtenberg (019338)
    LEVENBAUM & COHEN
    362 North Third Avenue
    Phoenix, Arizona 85003
    (602) 271-0183, Fax: (602) 271-4018
    gmt@lclegal.com
    Co-Petitioner

    David L. Abney, Esq. (009001)
    KNAPP & ROBERTS, P.C.
    8777 North Gainey Center Drive, Suite 181
    Scottsdale, Arizona 85258
    (480) 991-7677; Cell: (480) 734-8652
    abney@krattorneys.com, abneymaturin@aol.com
    Co-Petitioner

    Filed: September 26, 2011

    The Court issued the following Order on August 30, 2012:

    IT IS ORDERED that the attached draft amendment, which is based on the proposal made by the State Bar of Arizona in its comment, shall be opened for comment until November 9, 2012.

    COMMENTS DUE November 9, 2012.

    ADOPTED as modified, effective January 1, 2013.


    Attachment 1: Order reopening matter for comment on modified State Bar draft
    Attachment 2: Original Petition to Amend Ariz. R. Civ. P. 4.1(i)
    Attachments
    rplattner
    Posts:

    --
    25 Oct 2011 07:10 PM
    Richard S. Plattner
    Plattner Verderame P.C.
    P.O. Box 36570
    Phoenix, AZ 85067-6570
    rplattner@plattner-verderame.com


    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.
    khammond
    Posts:

    --
    02 Nov 2011 10:49 AM
    Kent Hammond
    Law Offices of Rudolph & Hammond, LLC
    8686 E. San Alberto Drive, Suite 200
    Scottsdale, AZ 85258
    Phone 480.951.9700
    Fax 480.951.1185
    kent@rudolphhammond.com
    State Bar #015100

    I support the Petition for the reasons stated by Geoff Trachtenberg and Dave Abney. The existing rule is a trap for the unwary, and in most cases results in unwarranted costs and expenes. As noted by Mr. Plattner, service of claims and lawsuits on governmental entities should be simple and easy.
    eawerkamp
    Posts:

    --
    09 Nov 2011 05:25 PM
    Eric C. Awerkamp
    1930 S. Alma School Rd. Ste. A-115
    Mesa, AZ 85210-3065
    480-632-9800
    Eric.Awerkamp@azbar.org


    I support the Petition for the reasons stated by Geoff Trachtenberg and Dave Abney. The existing rule is a trap for the unwary, and in most cases results in unwarranted costs and expenes. As noted by Mr. Plattner, service of claims and lawsuits on governmental entities should be simple and easy.

    Sincerely,
    Eric Awerkamp
    PageMarks
    Posts:

    --
    10 Nov 2011 02:01 PM
    Page Chancellor Marks
    Management Attorney
    Goldberg & Osborne
    33 N. Stone, Suite 900
    Tucson, AZ 85701
    pchancellor@goldbergandosborne.com
    520-909-0915
    State Bar No. 014732


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

    I am a Management Attorney for Goldberg & Osborne. I personally monitor our attorneys' compliance with all statute of limitations and deadline dates. As a result, I review all governmental notice claims and the service of such claims. 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.

    As the rule currently reads, service of such claims and lawsuits is extremely difficult and costly. It is a trap for the unwary. It creates substantial and unjustified expense. Many of our clients must spend hundreds of dollars to serve a governmental notice claim and subsequent lawsuit.

    In regards to school boards, the most prudent client, under the current rule and caselaw, must serve each of the school board members, the superintendent, and the responsible employee. In some cases, one might have to serve up to ten people with a notice of claim and attachments. Imagiine the amount of costs that go into copying and serving ten claim letters.

    We try to save costs of service, by serving the school board members at their meetings, however, say one officer misses the meeting, we must find that person and serve them either during their work hours or at home. This is an extreme inconvenience to the board member, plus costs significant amounts of money. Furthermore, it is an extreme waste of resources and money since the school board was on notice of the claim once any one of the members (especially the clerk of the board) was served at the meeting.

    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,
    Page Chancellor Marks


    ShaneHarward
    Posts:

    --
    11 Nov 2011 07:53 AM
    Shane Harward
    Law Offices of Shane L. Harward, P.L.C.
    10575 N. 114th Street, Suite 103
    Scottsdale, Arizona 85259
    Phone 480.874.2918
    Fax 480.588.5063
    ShaneHarward@cox.net
    State Bar #016532

    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. Unfortunately, the existing Rule 4.1(i) ARCP is the exact opposite. As noted by my colleagues, it is literally a very expensive, and unjustified, trap. 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. 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.

    mfmagee
    Posts:

    --
    15 Nov 2011 01:08 PM
    Michael Magee
    The Magee Law Firm, PLC
    7411 E. Sixth Ave, Suite 106
    Scottsdale AZ 85251
    mike@themageelawfirm.com

    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.

    lincolncombs
    Posts:

    --
    15 Nov 2011 01:59 PM
    Lincoln Combs
    Gallagher & Kennedy, P.A.
    2575 E. Camelback Road
    Phoenix, Arizona 85016
    602-530-8022
    lincoln.combs@gknet.com
    State Bar No. 025080

    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 logical, 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 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.

    jtorgenson
    Posts:

    --
    15 Nov 2011 04:45 PM
    John P. Torgenson (AZ Bar # 23505)
    Benedetto Torgenson, PLC
    An Arizona Professional Limited Liability Company
    The Phoenix Plaza | 2901 N. Central Ave., Suite 200 | Phoenix, Arizona 85012
    602.759.0013 (office) | 602.513.7066 (facsimile)
    www.bentorg.com
    jpt@bentorg.com

    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.

    ______________________________
    SSiesco
    Posts:

    --
    15 Nov 2011 04:51 PM
    Sara Siesco
    2141 East Camelback, Suite 100
    Phoenix, Arizona 85016
    602-840-8787
    602-840-0425
    ssiesco@bojolaw.com
    State Bar #027803

    Petition R-11-0031 should be adopted in full. Service of claims and lawsuits on governmental entities should be simplified so that citizens' constitutional rights to seek redress of government wrongs are protected. The existing rule is a trap for the unwary and creates substantial and unjustified expense. The changes suggested by Geoff Trachtenberg and David Abney would create efficiency, preserve resources and relieve officials of security concerns due to invasive tactics used in effectuating service of process.

    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 should not have interposed any Legislative intent while interpreting the Court's own Rules of Civil Procedure because the Legislature has no role in promulgating those rules.

    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 is reasonable for those persons to be able to accept basic service related to their public office. Furthermore, Rule 4.1(j) is the "default rule" when Rule 4.1(i) is not applicable and allows for service upon one member of a public body. It makes no sense to allow this kind of service under one rule but not the other.

    bbacon
    Posts:

    --
    15 Nov 2011 04:52 PM
    William C. Bacon
    Goldberg & Osborne
    33 N. Stone 900
    Tucson, AZ 85701
    520-879-7165
    Fax-520-620-3991
    wbacon@goldbergandosborne.com
    State Bar #004895

    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.
    Cole.Sorenson
    Posts:

    --
    15 Nov 2011 04:57 PM
    Cole D. Sorenson, #013097
    CANTOR LAW GROUP, PLLC
    One East Washington St., Suite 1800
    Phoenix, Arizona 85004
    Telephone: (602) 254-8880
    Facsimile: (602) 255-0815
    Email: c.sorenson@cantorlawgroup.com


    When I began practicing law in 1990 notice of claims were simple. You sent a letter to the governmental agency/risk management stating that you had a claim and the same could be settled for a certain figure.

    I left the practice of law for several years due to personal issues and when I came back we had the Deer Valley case. Since that time I have followed the roller coaster of decisions and have been amazed at the interpretation of the statute and rules and how even an educated lawyer with experience in these areas can fall into the "notice/service" trap.

    The purpose of the statute is simple: Put the State on notice and give them the opportunity to resolve meritorious claims. It's nothing more and nothing less.

    I support Petition R-11-0031 for the reasons stated by Geoff Trachtenberg, Dave Abney and others. Bring common sense back into this legal morass.
    rhinsch
    Posts:

    --
    15 Nov 2011 05:42 PM
    Randall A. Hinsch
    Plattner Verderame P.C.
    316 E. Flower St.
    Phoenix, AZ 85012
    (602)266-2002
    (602)266-6908
    rhinsch@pvazlaw.com
    #010280

    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.
    bdombrowski
    Posts:

    --
    15 Nov 2011 05:46 PM
    Bonnie Shore Dombrowski
    Jacoby & Meyers Law Offices
    2343 E. Broadway
    Suite 112
    Tucson, Az. 85719
    520-622-2350 phone
    520-622-4543 Fax
    Bar # 011981
    Email bdombrowski@jacoby-meyersaz.com

    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.




    jflynn@tucsonlaw.com
    Posts:

    --
    15 Nov 2011 06:52 PM
    Joey A. Flynn
    2200 E. Speedway Blvd.
    Tucson, AZ 85719-4727
    jflynn@tucsonlaw.com

    I wholeheartedly agree with Mr. Plattner and I echo the sentiments of Page Chancellor Marks regarding service of notices of claims on individual members of school boards. It is onerous, expensive, and can be cost-prohibitive in smaller-sized legitimate claims.

    The Petition should be adopted in full.

    Joey A. Flynn
    dsethi
    Posts:

    --
    16 Nov 2011 11:46 AM
    Dev K. Sethi
    Kinerk Schmidt & Sethi PLLC
    1790 E. River Rd. Ste. 300
    Tucson, AZ 85718-5958
    dsethi@kss-law.com

    I am a civil trial lawyer based in Tucson, with a practice throughout the state. My practice has included representing defendants, including public entities and public employees, in tort cases. For the past decade my practice has been limited to representing plaintiffs in tort cases.

    I am a past Chair of the State Bar of Arizona's Trial Practice Committee and Past President of the Arizona Minority Bar Association. I am involved in a variety of professional activities where defense side and plaintiff side lawyers share views and discuss issues relevant to our respective practices.

    With all of this background, I support the Petitioners' proposal to change Rule 4.1(i). The rule change should be adopted in its entirety.

    Nobody likes to be served. My experience has been that service of process is cumbersome, often embarrassing and often accompanied by private investigators or a server tracking down the subject -- even a public employee who is being served only in his or her official capacity.

    There is no reason why a duly authorized front line employee should not be authorized to accept service on behalf of a government agency. There is no danger that the agency won't have actual notice of the claim. There is no downside to the proposed change.

    Service of process on a public agency should be an easy, inexpensive and routine thing to accomplish. The current rule leads to an increase in delay, cost and inefficiency. These are the very things that Rule 1 so clearly directs against.

    For these reasons, and the reasons so well articulated by others who have commented in favor of this rule change, I urge its adoption.

    mikebell
    Posts:

    --
    16 Nov 2011 12:24 PM
    Michael J. Bell
    Busby, Bell & Biggs P.C.
    1241 E. Prince Rd
    Tucson AZ 85719
    Fax # 1-520-293-8347
    mike@busbylaw.com
    State Bar # 009020

    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.

    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.


    Robert Ramirez
    Posts:

    --
    16 Nov 2011 12:30 PM
    Robert P. Ramirez
    The Robert P. Ramirez Law Firm, PLLC
    826 N. 3rd Ave.
    Phoenix, AZ 85003
    623-322-3400
    623-322-3412
    robert@robertramirezlaw.com
    BAR# 0192655

    Petition R-11-0031 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.

    As Plaintiff's Counsel in Batty v. Glendale Union High School District No. 205, 221 Ariz. 592, 595 ¶ 11, 212 P.3d 930, 933 ¶ 11 (App. 2009), I can tell you first hand that much confusion exists over whom to serve for various public entities. What is appropriate for one body politic may not be for another. And what is required for service on certain Public Entities is not detailed or explained (at least the interpretation is not explained or detailed at all). Such should not be the case.... All that should be required is to place the body politic on notice of the litigation. How that is to be done should be spelled out specifically and clearly so that there is no confusion. To accomplish these goals the Petition should be adopted in full.

    stevenevans1
    Posts:

    --
    16 Nov 2011 12:41 PM
    Steven L. Evans
    Steven L. Evans, PLC
    322 W. Roosevelt St.
    Phoenix, AZ 85003
    (602) 288-3325
    (602) 288-3328
    sevans@sle-law.com
    AZ BAr No. 012998

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

    shumwayg
    Posts:

    --
    16 Nov 2011 08:21 PM
    G. Lynn Shumway
    Law Office of G. Lynn Shumway
    4647 N. 32nd Street, Suite 230
    Phoenix, Arizona 85018
    Phone 602 795-3720
    Fax 602 795-3728
    shumway@gmail.com
    Arizona State Bar No. 011714

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

    Lynn Shumway
    kpearson
    Posts:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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.
    jonihoffman
    Posts:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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
    Posts:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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:

    --
    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
    kcgreif
    Posts:

    --
    14 Nov 2012 01:56 PM
    The Court is trying to fit a square peg in a round hole. The proposed revision does not solve a number of problems and creates some new ones.

    1. Is it reasonable or sensible to expect someone that is filing a Notice of Claim for something like "use of "excessive force" to deliver the Notice of Claim a Police Officer's "dwelling house or usual place of abode? (Rule 4.1 (d))

    2. Can the State legally restrict access to public records that give the addresses of public safety personnel or government employees when that information is required for service of a Notice of Claim to an Individual? (Rule 4.1(d))

    3. How would a person filing a Notice of Claim upon an Individual know if "an agent is authorized by appointment or by law to receive service of process"? (Rule 4.1 (d))

    4. How would a person filing a Notice of Claim get Court approval to use "Alternative or Substituted Services"? (Rule 4.1 (m))

    5. Under draft Rule 4.1(h)(4)(A) what statutes designate who is to receive service of process and how is the name of the designated person disclosed?

    6. Under draft Rule 4.1(h)(4)(B) if the entity has designated an individual to receive service but the Notice of Claim is filed with "the chief executive officer(s), or alternatively, the official secretary, clerk or recording officer" does this meet the service requirements?

    I would really appreciate answers to these question or revisions to the draft that eliminate them.

    There are more significant problems with the Notice of Claim Statute that have been raised previously in the forum. A cursory examination of the number of Court cases related to the Notice of Claim Statute shows that it is a trap for the unwary and costly for the Courts.

    The proposed revision does not solve many of the problems. Other states, Washington for example, have come up with better solutions. Why not fix the problems?

    Kevin Greif

    1140 North Opal Drive
    Prescott, AZ 86303
    (928)776-2422
    KCGreif@hotmail.com


    ---