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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 32879 ) ) ) ) ) ) ) ) ) ) ) )

LANA CAMPBELL, Plaintiff-Appellant-Cross Respondent, v. MICHAEL E. REAGAN, Defendant-Respondent-Cross Appellant.

Lewiston, April 2007 Term 2007 Opinion No. 73 Filed: May 3, 2007 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Second Judicial District of the State of Idaho, for the County of Lewis. Hon. John H. Bradbury, District Judge. Judgment dismissing the action is affirmed. Aherin, Rice & Anegon, Lewiston, for appellant. argued. Darrel W. Aherin

Ramsden & Lyons, Coeur d'Alene, for respondent. Michael E. Ramsden argued. ____________________ JONES, Justice Lana Campbell appeals a judgment dismissing her action for failing to timely serve Respondent, Michael Reagan, with the summons and complaint. The district court found that Campbell had not demonstrated good cause for her failure to effect timely service within the time prescribed by Idaho Rule of Civil Procedure 4(a)(2).1 We affirm. I. Campbell filed a complaint on October 27, 2004, alleging that Reagan, an attorney, participated with her ex-husband in a scheme to defraud her of marital property in a divorce settlement. Campbell mailed Reagan a letter the next day, with a copy of the

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Reagan filed a cross appeal regarding the form of the judgment but indicated at oral argument that the issue of concern had been mooted by that time.

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summons and complaint enclosed, informing him that she was prepared to entertain settlement negotiations. The letter stated that she would "proceed with service" if she did not receive a reply by November 15, 2004. Upon receipt of the letter, Reagan retained the services of attorney Michael Ramsden. A member of Ramsden's law firm faxed Campbell a letter on November 12, 2004, which stated in pertinent part: [Ramsden] is currently in the fourth week of what appears to be a sixweek trial. Our office has not received any file or other documents related to this claim and we are unclear as whether Mr. Reagan has actually been served. Regardless, I appreciate your granting an extension of time (assuming the summons and complaint have been served) and not taking any action adverse to our client without prior notice. Campbell asserts that within about a month's time her attorney spoke several times by phone with Ramsden's firm and was advised Ramsden needed additional time to address Campbell's suit because he was either engaged in the lengthy trial or trying to regroup from the rigors of the trial. Thereafter, the parties had no further correspondence until shortly before August 8, 2005, when Reagan's attorney informed Campbell's attorney that Reagan had not been formally served within the six-month time period prescribed by Rule 4(a)(2). Campbell then filed an ex-parte motion requesting the district court to enlarge the service time, asserting that good cause supported the motion. The district court granted

Campbell's request, and Campbell proceeded to serve Reagan with the summons and complaint on August 12, 2005. When Reagan filed his answer, he asserted Campbell's failure to timely serve process as a defense. Campbell challenged Reagan's defense in a Rule 12(c) motion, alleging it was invalid because the district court had entered an order extending the time for service. Reagan responded by filing a motion for reconsideration of the court's decision to extend the service time, along with a motion for summary judgment asserting that no genuine issue of material fact existed as to whether Campbell timely served process. The district court granted Reagan's motions, finding that Campbell had not demonstrated good cause for failing to timely serve process. The district court dismissed the case "without prejudice." Campbell appeals the district court's decision to reconsider its order extending the service time and its finding that she failed to establish good cause.

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Reagan cross appeals, asserting the district court erred in not dismissing the case "on the merits." II. In this opinion, we address the following issues: (1) whether the district court erred in determining Campbell did not establish good cause for her failure to timely serve process, and (2) whether the district court erred in reconsidering its order allowing late service. A. When reviewing a summary judgment order, this Court applies the same standard as the district court. Foster v. Traul, 141 Idaho 890, 892, 120 P.3d 278, 280 (2005). Whether good cause exists under Rule 4(a)(2) for a plaintiff's failure to effect timely service is a factual determination. Sammis v. Magnetek, Inc., 130 Idaho 342, 346, 941 P.2d 314, 318 (1997). As such, "[t]he standard of review on appeal is the same as that for reviewing the granting of a motion for summary judgment." Rudd v. Merritt, 138 Idaho 526, 532, 66 P.3d 230, 236 (2003). This Court will construe all disputed facts liberally in favor of the non-moving party, and all reasonable inferences will be drawn in favor of the non-moving party. Hayward v. Jack's Pharmacy Inc., 141 Idaho 622, 625, 115 P.3d 713, 716 (2005). When analyzing whether good cause exists, this Court focuses on the sixmonth period beginning on the date the complaint was filed. Sammis, 130 Idaho at 346, 941 P.2d at 318. B. Campbell has not shown good cause for her failure to timely serve process. Rule 4(a)(2) requires that a plaintiff serve a defendant with the summons and complaint within six months of filing the complaint. When a plaintiff fails to serve a defendant within the prescribed period "the action shall be dismissed as to that defendant without prejudice," unless the plaintiff demonstrates good cause for the untimely service. I.R.C.P. 4(a)(2). The parties do not dispute that Campbell did not serve Reagan with process within six months of filing. As a result, Rule 4(a)(2) dictates that we affirm the district court's grant of summary judgment, unless Campbell demonstrates good cause for her untimely service. Campbell asserts two reasons why good cause existed for her untimely service: (1) within a day of filing she mailed Reagan a copy of the summons and

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complaint and he proceeded thereafter as if he had been formally served, and (2) she was wrongfully enticed by Reagan's attorney to delay formal service. Each argument will be addressed in turn. i. Campbell argues that good cause existed because she informally mailed Reagan a copy of the summons and complaint a day after filing and Reagan proceeded thereafter as if he had formally been served. Reagan asserts that neither his knowledge of the claim, nor his actions following his receipt of Campbell's letter, constitute good cause excusing Campbell's failure to timely serve process. That Campbell mailed Reagan a copy of the summons and complaint will not establish good cause for her delay in serving him with process. Idaho Rule of Civil Procedure 4(c)(1) provides that service of process cannot be made by a party to the suit, but rather must be made by "an officer authorized by law to serve process." Thus, the sole consequence of Reagan's receipt of Campbell's letter was to put him on notice that a claim had been filed against him. In Telford v. Mart Produce, Inc., 130 Idaho 932, 935, 950 P.2d 1271, 1274 (1998), this Court held that a defendant's prior notice of a claim does not establish good cause for a plaintiff's failure to timely serve the defendant. Campbell attempts to factually distinguish this case from Telford on the ground that the defendant in this case informally received the actual papers

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