Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Order granting motion to dismiss action, affirmed.
Richard and Sylvia Naranjo (the Naranjos) appeal from the dismissal of their tort action against the Idaho Department of Correction (IDOC). They argue the district court erred when it granted a motion to dismiss for failure to timely serve the complaint.
On December 10, 2008, the Naranjos filed a complaint against IDOC in which Richard Naranjo alleged that he sustained personal injuries from slipping on a wet floor that was negligently maintained by IDOC. On June 2, 2009, the Naranjos delivered two copies of the summons and complaint to the office of a state deputy attorney general who represented IDOC. On July 7, 2009, IDOC filed a motion to dismiss pursuant to Idaho Rule of Civil Procedure 12(b)(5) on the ground that the Naranjos had not completed service of the complaint within six months of its filing as required by I.R.C.P. 4(a)(2). IDOC pointed out that the Naranjos had not delivered a copy of the summons and complaint to the secretary of state as required by the Idaho Tort Claims Act (ITCA), Idaho Code § 6-916, for initiation of a tort action against a state agency. Three days later, the Naranjos delivered a copy of the summons and complaint to the secretary of state. The Naranjos then filed a memorandum in opposition to the motion to dismiss, supported by an affidavit from their attorney.*fn1 In the affidavit, the attorney stated that prior to representing the Naranjos, he had never filed an action against IDOC, and "was uncertain as to whom and where service of the Summons and Complaint should be made." The affidavit continued:
That your affiant, within a week prior to the date of May 29, 2009, contacted the office of the Idaho State Attorney General and was referred to one of the deputy attorneys that . . . dealt specifically with the issues involving the [IDOC].
Your affiant . . . advised him that he had a pending lawsuit against the [IDOC]; and requested information from him as to whom service of Summons and Complaint should be made. . .
Your affiant was advised that he should serve two copies of the Summons and Complaint upon the [IDOC] at the office of the Deputy Attorney General . . . Your affiant relied upon this information. .
Your affiant herein asserts, on behalf of the Plaintiffs, that he should have been able to rely on the information furnished to him by the State of Idaho Deputy Attorney General as to whom and where said service of process should have been made with reference to the [IDOC] and that the Defendant should be estopped from asserting that the service . which occurred on July 10, 2009, was untimely.
After a hearing on IDOC's motion, the district court dismissed the case without prejudice.
On appeal, the Naranjos assert that IDOC should be precluded from seeking a Rule 4(a)(2) dismissal by the doctrine of quasi-estoppel, and that their failure to timely effect service of process should be excused because they demonstrated good ...