from the District Court of the Seventh Judicial District of
the State of Idaho, Bonneville County. Hon. Dane H. Watkins,
Jr., District Judge.
district court's judgment is affirmed.
McBride, Roberts & Romrell, Idaho Falls, for appellant.
Michael R. McBride argued.
B. Peck, Pocatello, for respondent.
a case about what constitutes "good cause" for
failing to timely serve a defendant in accordance with the
Idaho Rules of Civil Procedure. The case began with a May
2014 auto collision in Idaho Falls involving Melanie Hansen
and Gary White. Hansen claimed White's negligence caused
the collision, and she filed a complaint against him in May
2016. Process servers attempted to serve White in October
2016 at the address listed on the police report, which was
taken from his driver's license. White had not lived at
this address for years. Just days before the six-month
deadline, Hansen attempted service by publication without
obtaining a court order as required by statute. The process
server also left the complaint and summons with White's
daughter-in-law at the address listed on the police report.
White filed a motion to dismiss for lack of service in
November 2016. The district court initially found that good
cause existed for Hansen's failure to timely serve White,
but after holding a hearing on White's subsequent motion
for reconsideration, dismissed the claim without prejudice
for failure to timely serve. Hansen appeals the dismissal. We
23, 2014, Melanie Hansen and Gary White were involved in a
vehicle collision in Idaho Falls. An Idaho Falls Police
officer responded to the scene, talked with both parties, and
assessed that White's inattention caused the collision.
White provided the officer his driver's license, on which
White's address was listed as being in the city of Firth
(the "Firth residence"). The officer listed the
Firth residence as White's address on the collision
report. Hansen filed a complaint seeking damages resulting
from the collision on May 10, 2016, shortly before the
two-year statute of limitations ran.
October 2016, Hansen's attorney's legal assistant
engaged Bulldog Legal Support ("BLS") to serve the
complaint on White. The summons listed the Firth residence as
White's address. BLS attempted service at this address on
October 25, 2016. The BLS process server met Jeremy White at
the Firth residence. Jeremy White informed the process server
that he was Gary White's son, that Gary had not lived
there for over ten years, and that he did not know Gary's
current location but thought it may be in Mesquite, Nevada.
BLS informed the legal assistant, who provided no further
information as to Gary White's current address. BLS then
provided an affidavit of non-service to the legal assistant.
On October 31, 2016, the legal assistant asked BLS to return
to the Firth residence and effect service. BLS returned on
November 2, 2016, leaving the complaint with Natalie White,
Jeremy's wife and Gary's daughter-in-law.
assistant additionally searched various internet sites for
1.5 hours in late October, but she was unable to find Gary
White's address. She also attempted service by
publication after discovering White did not live at the Firth
residence, submitting the summons on October 27, 2016 to the
Post Register. Publication began on November 1 and continued
four successive weeks through November 22. Hansen conceded,
however, to not obtaining a court order in accordance with
Idaho Code section 5-508 before attempting service by
filed a motion to dismiss Hansen's complaint on November
21, 2016, due to lack of personal jurisdiction for failure to
serve him with process within the requisite six-month period,
which ended on November 10. Hansen responded with a motion
requesting an extension, claiming "good cause"
existed for failing to effect service within the six-month
period. The district court denied White's motion to
dismiss, granted Hansen's motion for an extension, and
ordered service by publication in the Post Register.
filed a motion for reconsideration, and stated that the
motion would draw on supplemental case law as well as new
evidence, including additional affidavits and testimony from
the Idaho Falls officer who responded the day of the
collision. Each party submitted briefs. On April 27, 2017,
the district court held an evidentiary hearing on the motion,
after which the court issued an oral ruling dismissing
Hansen's case without prejudice. The court provided a
written order consistent with its oral ruling on May 5, 2017.
Since the statute of limitations expired one year earlier, in
May 2016, the dismissal without prejudice effectively ended
Hansen's claim. Hansen timely appealed.
STANDARD OF REVIEW
district court may reconsider and vacate a prior
interlocutory order "so long as final judgment has not
been entered." Sammis v. Magnetek, Inc., 130
Idaho 342, 346, 941 P.2d 314, 318 (1997). "If a
defendant is not served within 6 months after the complaint
is filed, the court . . . must dismiss the action without
prejudice against the defendant. But if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period." I.R.C.P.
4(b)(2). Whether good cause exists is a factual
determination. Sammis, 130 Idaho at 346, 941 P.2d at
318; Martin v. Hoblit, 133 Idaho 372, 375, 987 P.2d
284, 287 (1999). The inquiry into good cause must focus on
the six-month time period from the filing of the complaint,
and the trial court must consider the totality of the
circumstances to "determine whether the plaintiff had a
legitimate reason for not serving the ...