IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36627
PETER HOOVER, ) 2010 Unpublished Opinion No. 521
)
Plaintiff-Appellant, ) Filed: June 24, 2010
)
and ) Stephen W. Kenyon, Clerk
)
SHEILA M. HOOVER ESTATE, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Plaintiff, ) BE CITED AS AUTHORITY
)
v. )
)
FARMERS INSURANCE COMPANY OF )
IDAHO, an Idaho corporation, )
MARGUERITE D. SOWERSBY, of Farmers )
Insurance of Idaho, )
)
Defendants-Respondents, )
)
and )
)
FARMERS INSURANCE GROUP, a )
California corporation, ELDON LEWIS, of )
Farmers Insurance Company of Idaho, )
MIKE D. FLYNN, of Farmers Insurance )
Company of Idaho, )
)
Defendants. )
)
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Cheri C. Copsey, District Judge.
Order dismissing claim against defendant Farmers Insurance Company of Idaho
and summary judgment in favor of defendant Marguerite Sowersby, affirmed.
Peter Hoover, Basalt, Colorado, pro se appellant.
Peter J. Johnson of Johnson Law Group, Spokane, Washington, for respondent
Farmers Insurance Company of Idaho.
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J. Robert Alexander of Benoit, Alexander, Harwood & High, Twin Falls, Idaho,
for respondent Marguerite D. Sowersby.
________________________________________________
LANSING, Chief Judge
Peter Hoover appeals an order granting summary judgment to Marguerite D. Sowersby
and an order dismissing his claims against Farmers Insurance Company of Idaho for failure to
complete timely service of process on the company. As to both orders of the district court, we
affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Hoover filed a complaint against Farmers Insurance Company of Idaho (hereinafter
Farmers), Marguerite D. Sowersby (hereinafter Sowersby), and several other defendants on
May 28, 2008. However, Hoover did not request that the court clerk issue a summons at that
time and did not send a copy of the summons with his complaint. On November 15, 2008,
Hoover mailed summonses for Farmers and Sowersby with a request that the clerk issue them
and return the summonses to Hoover as soon as possible. The summonses were issued by the
clerk on November 17, 2008. Farmers was served with the complaint and summons on
December 5, 2008. The date of service on Sowersby is not revealed in the record.
Sowersby filed a motion for summary judgment on the ground that the complaint alleged
no claim against her. Farmers filed a motion to dismiss pursuant to I.R.C.P. 4(a)(2) and
I.R.C.P. 12(b)(2), (4) and (5) on the ground that it was not served with process within six months
of the filing of the complaint as required by I.R.C.P. 4(a)(2).
At a telephonic hearing, the district court granted Sowersby’s motion for summary
judgment, without prejudice, because her name was mentioned only in the caption and was found
nowhere in the body of the complaint, and the complaint therefore alleged no cause of action
against her. The court also granted Farmers’ motion pursuant to I.R.C.P. 4(a)(2) because Hoover
did not comply with the six-month time limitation on service of process. The court concluded
that Hoover failed to show good cause for the untimely service and dismissed the claims against
Farmers without prejudice. Hoover appeals.1
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The district court ultimately dismissed Hoover’s claims against the remaining defendants
sua sponte for Hoover’s failure to serve them. Hoover does not challenge that order on appeal.
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II.
ANALYSIS
A. Summary Judgment for Sowersby
Summary judgment under I.R.C.P. 56(c) is proper only when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. On appeal, we
exercise free review in determining whether a genuine issue of material fact exists and whether
the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111
Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When assessing a motion for summary
judgment, all controverted facts are to be liberally construed in favor of the nonmoving party.
Furthermore, the trial court must draw all reasonable inferences in favor of the party resisting the
motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991);
Sanders v. Kuna Joint School Dist., 125 Idaho 872, 874, 876 P.2d 154, 156 (Ct. App. 1994).
In this case, the district court granted summary judgment because Hoover’s complaint
does not allege any claims against Sowersby, nor does it mention Sowersby by name anywhere
in the complaint except the caption. There is no issue of material fact because there are no
articulated claims against Sowersby. Thus, the order for summary judgment was proper and we
affirm.
B. Dismissal of Claim Against Farmers
Hoover contends that he showed good cause for failing to serve the summons and
complaint upon Farmers within the six-month period required by I.R.C.P. 4(a)(2). The standard
of review on appeal is the same as that for reviewing a motion for summary judgment. Nerco
Minerals Co. v. Morrison Knudsen Corp., 132 Idaho 531, 533-34, 976 P.2d 457, 459-60 (1999).
This Court liberally construes the record in the light most favorable to the party opposing the
motion, drawing all reasonable inferences and conclusions in that party’s favor. Id. at 534, 976
P.2d at 460.
A time limit for service of a complaint on a defendant is established by I.R.C.P. 4(a)(2),
which states:
If a service of the summons and complaint is not made upon a defendant within
six (6) months after the filing of the complaint and the party on whose behalf such
service was required cannot show good cause why such service was not made
within that period, the action shall be dismissed as to that defendant without
prejudice upon the court’s own initiative with 14 days’ notice to such party or
upon motion.
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Here it is undisputed that service of Hoover’s complaint on Farmers did not occur within
the prescribed six-month period. When the defendant has made a prima facie showing that
service of process was not accomplished during the six months prescribed by the rule, the trial
court must determine whether there was good cause for the untimely service. Martin v. Hoblit,
133 Idaho 372, 375, 987 P.2d 284, 287 (1999); Sammis v. Magnetek, Inc., 130 Idaho 342, 346,
941 P.2d 314, 318 (1997).
Whether good cause exists is a factual determination. Rudd v. Merritt, 138 Idaho 526,
532, 66 P.3d 230, 236 (2003); Regjovich v. First W. Inv., Inc., 134 Idaho 154, 157, 997 P.2d 615,
618 (2000). There is no bright-line test to determine whether good cause exists. Martin, 133
Idaho at 375, 987 P.2d at 287. “[W]hether legal excuse has been shown is a matter for judicial
determination based upon the facts and circumstances in each case.” Id. The good cause inquiry
focuses on the six-month time period following the filing of the complaint. Id. “If a plaintiff
fails to make any attempt at service within the time period of the rule, it is likely that a court will
find no showing of good cause.” Id. at 377, 987 P.2d at 289. See also, Gambino v. Village of
Oakbrook, 164 F.R.D. 271, 274 (M.D. Fla. 1995); Campbell v. Reagan, 144 Idaho 254, 257, 159
P.3d 891, 894 (2007). Courts may look at the totality of the circumstances to determine whether
plaintiff had good cause for failing to timely serve a defendant. Sammis, 130 Idaho at 346, 941
P.2d at 318. Factors that have been deemed irrelevant to a good cause analysis include: the
pro se status of plaintiff, that the action will be time barred if dismissal is granted, lack of
prejudice to the defendant from untimely service, prior notice of the claim to the defendant, and
the timing of the defendant’s motion to dismiss. Telford v. Mart Produce, Inc., 130 Idaho 932,
936, 950 P.2d 1271, 1275 (1998); Sammis, 130 Idaho at 348-49, 941 P.2d at 318-19. See also
Nerco Minerals Co., 132 Idaho at 533, 976 P.2d at 459; Hincks v. Neilson, 137 Idaho 610, 612,
51 P.3d 424, 426 (Ct. App. 2002).
Hoover asks the court to consider circumstances that he contends show good cause for
failure to timely serve Farmers. These circumstances begin five and a half months after he filed
his May 28, 2008, complaint. On November 15, 2008, Hoover mailed his request to the clerk’s
office to issue a summons. Hoover does not offer any justification for waiting so long to begin
his effort to serve Farmers. However, he blames the district court clerk, postal workers and
process servers for not enabling him to effect service in the twelve days following his request to
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the clerk to issue summonses. In the good cause analysis, courts look to factors outside of the
plaintiff’s control including sudden illness, natural catastrophe, or evasion of service of process.
Martin, 133 Idaho at 377, 987 P.2d at 289. Although the speed with which the court clerk, postal
workers and process servers acted on Hoover’s request was outside of his control, he has not
shown that any of these persons caused an inordinate delay or that the time taken by any of them
to complete their tasks rose to the level of an unforeseeable event. These circumstances do not
demonstrate good cause.
Hoover also claims to have made a diligent attempt to serve Farmers within the six-
month period. A court may consider a party’s diligent efforts to effect service. Sammis, 130
Idaho at 346, 941 P.2d at 318. However, one legitimate attempt to effect service, just a few days
before the time expires, does not constitute a diligent effort. In Martin, 133 Idaho at 377, 987
P.2d at 289, for example, the court did not find a diligent effort where the plaintiff had made one
timely act of mailing the complaint and summons to the Sheriff for service eleven days before
the six-month period would run. Here, Hoover’s last minute attempt to serve Farmers does not
amount to a diligent effort.
Hoover also asks the court to consider that his service on Farmers occurred only five days
after the deadline and that this slight delay did not prejudice Farmers. However, in Sammis, the
Idaho Supreme Court rejected an argument that lack of prejudice to the defendant should be a
factor weighed by the court on a motion to dismiss for untimely service. The Court said:
[T]he rule’s language renders a consideration of prejudice to the defendants
irrelevant to good cause determinations. The rule required the Sammises to show
“good cause why such service was not made” within the stated time frame.
I.R.C.P. 4(a)(2) (1994) (emphasis added). As a federal court noted when
interpreting identical language in the analogous federal rule, lack of prejudice to
the defendant does not constitute a reason why service could not be made. [Floyd
v. United States, 900 F.2d 1045, 1048 (7th Cir. 1990).]
Sammis, 130 Idaho at 348, 941 P.2d at 320. Therefore, this Court will not consider lack of
prejudice to Farmers as a relevant factor in determining whether there was good cause. The
district court correctly determined that Hoover has not shown good cause for failing to timely
effect service.
In the alternative, Hoover argues that the I.R.C.P 4(a)(2) is invalid to the extent that it
violates Article 1, Section 10 of the United States Constitution which provides, “No state shall . .
. pass any . . . law impairing the obligation of contracts . . . .” Hoover argues that his right to
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enforce part of an existing contract has been substantially impeded by application of I.R.C.P.
4(a)(2).
In challenges to state laws for allegedly violating this constitutional provision, the
threshold question is, “whether the state law has, in fact, operated as a substantial impairment of
a contractual relationship.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978).
See also United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 17 (1977). “If the state
regulation constitutes a substantial impairment, the State, in justification, must have a significant
and legitimate public purpose behind the regulation.” Energy Reserves Group, Inc. v. Kansas
Power & Light Co., 459 U.S. 400, 411 (1983).
Civil Rule 4(a)(2) does not operate as a substantial impairment of the insurance contract
that Hoover seeks to enforce. The rule does not reduce Hoover’s contractual rights nor prevent
him from pursuing their enforcement in a court of law. The rule merely imposes standards to
ensure efficient and timely disposition of court cases. Courts have inherent power to impose
procedural rules to achieve the orderly and expeditious disposition of cases. Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991); Talbot v. Ames Const., 127 Idaho 648, 652, 904 P.2d 560,
564 (1995). Hoover’s adherence to Rule 4(a)(2) would have expedited his action for contract
enforcement, not impeded it. Rule 4(a)(2) therefore does not unconstitutionally infringe
Hoover’s right to contract.
C. Attorney Fees
Farmers requests this Court to award its costs and attorney fees on appeal. An award of
attorney fees may be granted under I.C. § 12-121 to the prevailing party when the court is left
with the abiding belief that the appeal has been brought or defended frivolously, unreasonably, or
without foundation. Rendon v. Paskett, 126 Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995).
We conclude that such an award is appropriate here as the appeal is frivolous. Sowersby did not
request an award of fees. As the prevailing parties, both respondents are entitled to costs.
III.
CONCLUSION
The district court’s order dismissing the complaint against Farmers and the order granting
summary judgment to Sowersby are affirmed. Attorney fees are awarded to Farmers. Costs to
both respondents.
Judge GUTIERREZ and Judge GRATTON CONCUR.
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