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No. 86-121 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986 ASSOCIATION OF UNIT OWNERS OF THE DEER LODGE CONDOMINIUM; LARRY BURNSIDE; MARY BURNSIDE; MEL'S REMODELING, INC.; ROBERT FOUSIGNANT; GERALD TEREICH; CAROLYN TEREICH; BRUCE J. HEDBLOOM; EMIL ESCHENBURG; DOLLY ESCHENBURG; RAYMOND D. RYAN; ERNEST M. SCHEWCHUK; MAURICE LOBE; MURRAY B. STEVENS; W. KEITH STINSON, et al., Plaintiffs and Appellants,

BIG SKY OF MONTANA, INC.; BIG SKY OF MONTANA REALTY, INC.; BOYNE USA, INC.; CHRYSLER REALTY CORP; THOMAS & CO (GENERAL ELECTRIC PENSION TRUST); MERIDIAN INVESTING & DEVELOPMENT CORP; CONTINTNTAL OIL CO.; THE MONTANA POWER CO.; ST. LOUIS and KANSAS CITY LAND CO. (BURLINGTON NORTHERN, INC.); NORTHWEST AIRLINES, INC., et al., Defendants and Respondents.

APPEAL FROM:

District Court of the Fifth Judicial District, In and for the County of Madison, The Honorable Prank Davis, Judge presiding.

COUNSEL OF RECORD: For Appellant: Berg, Coil, Stokes Bozeman, Montana
&

Tollefsen; Michael C. Coil argued,

For Respondents: Boone, Karlberg & Haddon; Sam E. Haddon argued for Chrysler Realty, Missoula, Montana Jerry Ashby, Houston, Texas Rockwood Brown argued for GE & BN, Billings, Montana Poore, Roth & Robinson; Urban Roth argued for Conoco, Butte, Montana Patrick Fleming argued for MPC, Butte, Montana Loble & Pauly; Thomas Hopgood argued for Northwest Airlines, Helena, Montana John Bobinski, Dept. of Administration, Helena, Montana Moulton Law Firm, Billings, Montana Corette, Smith, Pohlman & Allen, Butte, Montana Schulz, Davis & Warren; John S. Warren, Dillon, Montana Submitted: October 21, 1986 Decided: Vovember 2 4 , 1 9 8 6 Filed:

NOV241986
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Clerk

Mr. Justice Fred J. Weber delivered the Opinion of the Court. Association of Unit Owners of the Deer Lodge Condominiums and others (owners) brought an action to recover damages resulting from a fire that occurred in Deer Lodge Condominiums located at Big Sky, Montana. The District Court for

Madison County, Fifth Judicial District, granted the motions to dismiss of six defendants pursuant to Rule 41(e),

M.R.Civ.P.

(Rule 41 (e)), on the grounds that there was a We

failure to comply with the rule as to service of process. affirm in part and reverse in part. The issues are: 1.

Did the District Court err by granting the defen-

dants' motions to dismiss based on Rule 41 (e), M.R.Civ.P.?
2.

Did the District Court err when it denied owners'

motion to amend the original and duplicate summons? 3. Did the District Court err by not granting owners

additional time within which to file their brief opposing the motion to dismiss of Burlington Northern? On January 18, 1983, owners filed a complaint naming each of the defendants in this action. at that time. No summons was issued

On February 18, 1983, owners filed a first

amended complaint and issued a summons captioned "Association of Unit Owners of the Deer Lodge Condominium, et all Plaintiffs, versus Big Sky of Montana, Inc., et al., Defendants." The summons did not otherwise name any other defendant.

Service was made on four defendants who are not involved in this present appeal. Service of the February 18, 1983 sum-

mons was not made on Continental Oil Company (Conoco), St. Louis and Kansas City Land Company Northwest Airlines, Inc. (Burlington Northern), Chrysler Realty

(Northwest),

Corporation (Chrysler), Montana Power Company (Montana Power), and Thomas and Company (General Electric), who are the respondents in this action. caption listed all of the The amended complaint in its plaintiffs and all of the

defendants. In May 1984, about 15 months after the original summons was issued, a number of additional summons were issued which were marked "duplicate summons" and these summons were served on Conoco, Burlington Northern, Northwest Airlines, Montana Power Company, and General Electric. caption of the As an example, the

"duplicate summons" served on Burlington "Association of Unit Owners of the Deer Lodge

Northern read:

Condominium, et al., Plaintiffs, versus Burlington Northern; et al, Defendants." Chrysler was served with a "duplicate Because the appearance of each

summons" on August 21, 1984.

of the defendants is so important, a brief summary of their appearances and relevant court order dates after they were served is presented. Burlinaton Northern June 14, 1984: Burlington Northern filed its motion to dismiss raising Rule 41(e) and supporting memorandum. July 9, 1984: Chrysler October 5, 1984: M.R..Civ.P. (Rule 12(b)), motion and moved for change of place of trial and moved to dismiss for failure to comply with Rule 41 (e). August 6, 1985: Chrysler dismissed from suit. Chrysler appeared by Rule 12 (b) Burlington Northern dismissed from suit.

Conoco June 11, 1984: Conoco moved to dismiss not raising Rule 41 (e) and at the same time asked for additional briefing time to August 17, 1984. June 20, 1984: July 23, 1984: Conoco's motion to dismiss was denied. Conoco order August 2, 1984: filed a motion denying the to rescind to the

motion

dismiss.

Court order granting Conoco's motion to rescind the court's previous order denying its motion to dismiss was granted and Conoco was given until August 17, 1984 to file and serve its brief in support of its motion to dismiss.

August 20, 1984:

Conoco filed a brief raising Rule 41 (e) without having filed a motion to dismiss on that ground.

July 9, 1985: Northwest July 31, 1984:

Conoco dismissed from suit.

Northwest

filed motion

to dismiss and

supporting brief not raising Rule 41 (e) August 17, 1984: Without court

.

authorization, Northwest

filed an amended motion to dismiss raising Rule 41 (e) July 9, 1985: General Electric June 11, 1984: General Electric filed a general motion to dismiss not raising Rule 41 (e) General Electric moved the

.

Northwest dismissed from suit.

.
for

court

additional time to file a memorandum in support of its motion to dismiss.

August 2, 1984: October 31, 1984:

Additional time granted. General Electric Without court filed its memorandum. it also

authorization,

filed an amended motion to dismiss raising Rule 41 (e). July 9, 1985: General Electric dismissed from suit.

Montana Power Company June 8, 1984: Montana Power Company filed a motion

to dismiss not raising Rule 41(e). August 20, 1984: Without court authorization, filed an Montana

Power Company

amended motion

raising Rule 41 (e) with supporting memorandum and affidavit. July 9, 1985: Montana suit. Owners resisted the above motions to dismiss with their own motions and briefs. On October 22, 1984, owners filed a Power Company dismissed from

motion for leave to amend the summons and to correct the variations in the date of issuance shown on the original summons and the duplicate summons. The District Court heard

oral argument on all the foregoing motions and on July 9, 1985, granted the motions to dismiss of Burlington Northern, Conoco, Northwest, General Electric, and Montana Power
'I.

..
The

for the reason that there was a fatal failure of Plaintiffs to comply with the rule as to service of process."

District Court also denied owners' motion for leave to amend the summons. On July 17, 1985, the court granted Chrysler's

motion to dismiss.
I

Did the District Court err by granting the defendants' motion to dismiss based on Rule 41(e), M.R.Civ.P.?

The District Court dismissed the six defendants involved in this appeal based upon Rule provides : No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and return made and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years. When more than one defendant has been named in an action, the action may within the discretion of the trial court be further prosecuted against any defendant who has appeared within 3 years, or upon whom summons which has been issued within 1 year has been served and return made and filed with the clerk within 3 years as herein required. The six defendants contend that because the original summons dated February 18, 1983, failed to name any of them, and because the so called duplicate summons were not issued until more than one year after the commencement of the action, each of the six defendants should be dismissed from the suit. The record shows that the duplicate summons served 41 (e), M.R.Civ.P., which

upon each of these six defendants were issued more than one year after the commencement of the action and the filing of the first amended complaint. Our rules do not contain a We

provision for the issuance of a "duplicate" summons.

disregard that terminology in the title of the summons, and conclude that the service of such a summons fails to meet the requirements of Rule 41 (e), M.R.Civ.P., which requires that

the summons be issued within one year after the commencement of the action. We are not able to relate the actual service

back to the summons properly issued on February 18, 1983, because that summons failed to name any of the six defendants in its caption or anywhere else in the summons. As a result,

that summons would have been inadequate to give notice to these six defendants because of the absence of the defendants' names in the summons. We therefore affirm the conclu-

sion of the District Court that the attempted service on Burlington Northern, Chrysler, Conoco, Northwest, General Electric, and Montana Power was insufficient under Rule

41 (e), M.R.Civ.P. We now must determine if the appearances of each of these six defendants are sufficient to constitute a waiver of the insufficiency of service of process defense. Rule

12 (h)(1) , M. R. Civ. P. , contains the following provisions with regard to waiver of the insufficiency of service of process defense:
(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Rule 12 (g), M.R.Civ. P., referred to in the above quotation states in pertinent part: If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted,

...

...

A number of the initial motions filed by the six defendants were motions to dismiss for failure to state a claim upon which relief can be granted as provided for under Rule 12(b),

In substance, the foregoing rules require that if a defendant makes a motion to dismiss for failure to state a claim upon which relief can be granted, or any other motion under the provisions of Rule 12, he must raise a contention of insufficiency of service of process in that first motion or the objection is waived. M.R.Civ.P., The purpose of Rule 12 (b),

"is to afford an easy method for the presentation

of defenses but at the same time prevent their use for purposes of delay." (1985). 2A As
J.

Moore, Moore's

Federal Practice foregoing summary,

9 12.02

appears from the

several of these defendants made an initial motion to dismiss for failure to state a claim upon which relief could be granted and failed to make any reference to the insufficiency of service in the original motion. Thereafter, some of the

defendants filed amended motions without the permission of the District Court raising the Rule 41 (e) question on insufficiency of service. Regarding the amendments of motions, 2A

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