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Oldroyd v. Kanjo

Supreme Court of Wyoming

January 7, 2019

SCOTT OLDROYD, Appellant (Plaintiff),
v.
TADGE KANJO, M.D., Appellee (Defendant).

          Appeal from the District Court of Uinta County The Honorable Joseph B. Bluemel, Judge.

          Representing Appellant: Jeffrey C. Shorter of Smart Schofield Shorter, P.C., Salt Lake City, Utah.

          Representing Appellee: James E. Phillips of Phillips Law, P.C., Evanston, Wyoming.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.

          KAUTZ, Justice.

         [¶1] The district court dismissed Scott Oldroyd's medical malpractice suit against Tadge Kanjo, M.D., because Dr. Kanjo was not served with the complaint and summons within 90 days after the case was filed, as required by Wyoming Rule of Civil Procedure 4(w). The district court determined that Mr. Oldroyd had not established good cause for a mandatory extension of time to serve Dr. Kanjo. Finally, the court concluded that although Mr. Oldroyd had shown equitable factors in favor of a permissive extension, the district court would not grant such an extension because of prior procedural problems caused by Mr. Oldroyd's counsel. We find the district court's imposition of additional consequences on Mr. Oldroyd for past difficulties to be an abuse of discretion. We reverse and remand.

         ISSUE

         [¶2] The parties essentially state the same issue:

         Did the district court abuse its discretion in dismissing Mr. Oldroyd's complaint?

         FACTS

         [¶3] Mr. Oldroyd filed a medical malpractice suit against Dr. Kanjo on July 21, 2017. The lawsuit alleged that Dr. Kanjo negligently provided medical care to Mr. Oldroyd at the hospital in Evanston, Wyoming. Alexander Gallup, a private investigator from Utah, served Dr. Kanjo with the complaint and summons on October 26, 2017, at an address in Salt Lake City, Utah.

         [¶4] Dr. Kanjo filed a motion to dismiss the lawsuit, alleging that (1) it was filed after the two-year statute of limitations found in Wyo. Stat. Ann. § 1-3-107 (LexisNexis 2017) had run; and (2) the district court had no jurisdiction because Mr. Oldroyd untimely filed a claim with the medical review panel. Dr. Kanjo's motion erroneously relied upon W.R.C.P. 3(b), claiming that the date of service, October 26, 2017, was deemed as the date the action was commenced for purposes of the statute of limitations because service occurred more than 60 days after the case was filed. W.R.C.P. 3(b) had been repealed and replaced by W.R.C.P. 4(w).

         [¶5] In response to Dr. Kanjo's motion to dismiss, Mr. Oldroyd's counsel apparently knew that W.R.C.P. 4(w) applied, even though the motion to dismiss did not mention the new rule. His response claimed he "made reasonable efforts to serve Defendant," and he asserted that the court "must extend the time for service pursuant to W. R.C.P. 4(w)." Mr. Oldroyd's counsel did not describe any specific efforts he made to locate or serve Dr. Kanjo, but generally alleged he made "numerous, good faith attempts, to locate and serve the Defendant." He attached two documents titled "declaration" signed by David Gallup and Alexander Gallup. Those documents are difficult to follow because they do not contain any time frames, nor do they describe what the servers did to try to locate Dr. Kanjo, or why they attempted service at various addresses. However, the process servers explained they first attempted to serve Dr. Kanjo at a residential address where they had previously served him in Sandy, Utah. After six attempts, they learned he "had vacated two months previous." They made four attempts at an address in South Jordan, Utah, without success. The process servers were unable to locate or ascertain Dr. Kanjo's whereabouts at two hospitals in Utah. Eventually, one of them found a potential work address for Dr. Kanjo, and the other one successfully served him there.

         [¶6] The district court did not hold an evidentiary hearing on Dr. Kanjo's motion to dismiss or Mr. Oldroyd's claim for an extension of time to serve Dr. Kanjo under W.R.C.P. 4(w), but apparently relied on the facts recited in the motion to dismiss and the response. The district court determined it had jurisdiction, and after all savings and tolling statutes had been properly applied, the statute of limitations "would have expired on December 1, 2017."[1] Consequently, it found that the lawsuit was timely. Nevertheless, the district court dismissed the lawsuit sua sponte because Dr. Kanjo was served 97 days after the case was filed, citing W.R.C.P. 4(w). The ...


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