Blair v. Burgener (12/29/2010)

January 6, 2011

Arizona Court of Appeals Division Two Holds That Under Rule 4.1(m), Service Is “Impracticable” and Warrants an Order for Alternate Service if It Would Be “Extremely Difficult or Inconvenient” to Effectuate.

In May 2008, Plaintiff James Blair filed a complaint against Clifton Burgener and his companies, Tigerlilly Investments, LLC and Bonanza Realty Management, LLC (collectively “Defendants”).  Blair made numerous attempts to serve Burgener individually and as a statutory agent for the companies.  A process server contacted Defendants’ office eight times over a period of two weeks to serve Burgener but was informed each time that he was not in.  The process server then attempted to serve Burgener at his residence five separate times over eight days.  When these attempts failed, Blair moved the court to allow alternate service.  The trial court granted the motion, allowing Blair to serve any person in charge of the Defendants’ office and ordering him to mail a copy of the process and the court’s order to the last known residence or business address of each party.  Blair’s process server left copies of the process with the front desk receptionist at Defendants’ office and mailed copies to the business address.  After the time for responding passed, Blair filed for and was awarded a default judgment.  Several months later, Defendants moved to set aside the default judgment arguing that they had not been properly served and that the judgment was void.  The trial court denied their motion and they timely appealed.

The Arizona Appeals Court affirmed.  Under Arizona Rule of Civil Procedure 4.1(m), a court may order alternate service if service under a preceding paragraph of Rule 4.1 proves “impracticable.”  Relying on cases from other jurisdictions, the Court held that the impracticability standard is less stringent than the “due diligence” standard necessary for service by publication under Rule 4.1(n), and requires the movant only to show that service “is extremely difficult or inconvenient,” rather than impossible.  The Court held that alternate service was appropriate here because Blair’s multiple attempts to serve Burgener at his business and home addresses showed that service would have been “extremely difficult or inconvenient.”

The Court rejected Defendants’ argument that personal service on companies can never be impracticable because they can be served through the Arizona Corporation Commission under Rule 4.1(l).  The Court explained that Rule 4.1(l) only applies when a domestic corporation does not have an agent in the state.  Here, Burgener was an agent in the state.  The Court also rejected Defendants’ argument that the means of alternate service authorized by the trial court violated Defendants’ due process rights, explaining that the means were “reasonably calculated . . . to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  Finally, the Court rejected Defendants’ argument that Blair failed to actually effectuate service, explaining that the process servers’ affidavit showed that the process was mailed.

Presiding Judge Vásquez authored the opinion; Judges Eckerstrom and Kelly concurred.