DBTC Law Firm

Service of Process Requires “Minding Your P’s and Q’s” to Avoid Being Outfoxed by Wascally Wabbit Lawyer Tricks

In order for a lawsuit to properly begin, the lawsuit (“complaint”) must be filed in the proper court and then “served” on the defendant by any one of a number of prescribed procedures. If the complaint is not properly served, that is grounds for the defendant to seek dismissal of the lawsuit. Lawyers who do not scrupulously and carefully abide by all of the requirements for service may find themselves outfoxed by clever opposing counsel and thrown out of court – for good!

 

Serving the complaint on the defendant requires the inclusion of a “summons” to advise the defendant he has been sued and how he must answer the lawsuit to avoid default.  The summons and complaint must be served within 120 days after the lawsuit is filed, or an extension formally procured from the court, or the service is deemed ineffective.

In the case of Wilson v. Union Pacific Railroad, 2011 Ark. App.508, Mr. Wilson sued Union Pacific Railroad for work-related injuries. The summons prepared by his attorney erroneously noted that the defendant had 20 days to file the answer, instead of the 30 days permitted by the Rules. Thus, the service did not comply with the Rules.

In addition, service was not accomplished until 181 days after the complaint had been filed. When the defendant formally answered the complaint, the answer  asserted without any specificity that the complaint should be dismissed based upon insufficiency of process (improper listing of 20 response days instead of 30) and insufficiency of service of process (service too late). Wilson’s lawyer, who had made the mistakes in process, spoke to the Railroad lawyer and received assurances that dismissal of the case would not be sought because the number of days for response was erroneously stated in the summons (insufficiency of process).  However, the issue of service on the 181st day was not raised between the lawyers.

The case went forward, formal discovery was accomplished, time passed and, after the statute of limitations had run to file the case, the defendant Railroad moved to dismiss the case on the grounds that service had been late (insufficiency of service of process). This deficiency had not been waived by the defense counsel, service was unquestionably late and the trial court dismissed the case “with prejudice,” meaning it could not be brought again anywhere, any time, any way.  This result was appealed by Mr. Wilson, and the Arkansas Court of Appeals ruled that the trial court was correct; service had not been properly accomplished and, with the statute of limitations now expired, the plaintiff could not re-file the case and thus had no remedy for the alleged wrongs.

This, indeed, was a case where a significant claim was thrown out of court on mere technicalities. The plaintiff’s lawyer did not mind his “P’s and Q’s” in carefully following service procedure, and the defendant’s lawyer laid a clever and effective trap by letting the issue lie until the statute of limitations had run.

 

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