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.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
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.
The parties essentially state the same issue:
district court abuse its discretion in dismissing Mr.
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
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W.R.C.P. 3(b) had been repealed and replaced by W.R.C.P.
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.
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." 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 ...