Dismissal For Failure To Serve Within One Year May Still Be A Viable Defense Even After a Court Extends Service Time by Court Order

Andrew R. Alder, Esquire
January 2nd, 2019
By: Andrew R. Alder, Esquire

Virginia Code § 8.01-275.1 and Rule 3:5(e) require that service of process be made within twelve months of the commencement of a lawsuit. Service on a defendant more than twelve months after commencement is timely only if there is a “finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.” Va. Code § 8.01-275.1. Va. Code § 8.01-277(A) allows a defendant to challenge the timeliness of service.

What is the effect of a court order granting an extension of the twelve-month service deadline prior to the defendant being served? In Bowman v. Concepcion, 283 Va. 552 (2012), one year after the complaint was filed and before the defendant was served, the plaintiff sought an extension of the service deadline. The basis for the request was to allow the plaintiff time to obtain the written certification required in a medical malpractice case by Va. Code § 8.01-20.1. Following an ex parte hearing, the trial court entered an order finding “that the plaintiff has shown good cause” why the defendant has not been served and extended the plaintiff’s time to serve the defendant. After the defendant was served, the defendant filed a motion to dismiss for failure to serve within one year, arguing, among other things, that the court applied the wrong standard (“good cause” instead of “due diligence”) in granting the plaintiff’s request for an extension of time. The circuit court granted the motion and dismissed the case, ruling that the prior order was void and finding that the plaintiff did not exercise due diligence. On appeal, the Virginia Supreme Court held that “absent service of process of the complaint upon [the defendant] the court lacked personal jurisdiction over [the defendant]” and that the prior order was “voidable.” The Court held that the initial order extending, prospectively, the service deadline was erroneous, and upheld the circuit court’s finding that the plaintiff did not exercise due diligence in seeking to obtain service of process within one year.

In Perry v. Horstmann, CL2017-13206 (Fairfax), the Fairfax Circuit Court extended the principle set forth in Bowman. Seven days after the twelve month deadline for service expired, the court entered an Order finding that the plaintiff “has shown that due diligence has been exercised to have service timely effected on the defendant” and further ordered “that plaintiff/plaintiff’s counsel will diligently continue to attempt service on the defendant, and will attend the next scheduled Scheduling Conference….” The defendant was ultimately served, after which she filed a Motion to Quash and Dismiss for Failure to Serve Within One Year. In response, the plaintiff presented no evidence to show that due diligence was exercised in attempting to serve the defendant within one year. The plaintiff conceded that a summons was not even requested from the court until one day before the twelve-month service deadline. Unlike in Bowman, the Perry court in its prior ruling extending the time for service had used the correct standard in its finding that the plaintiff had exercised “due diligence.” In reconsidering the issue once raised by the defendant, the court nevertheless relied upon the general principle set forth in Bowman that the prior order was voidable. Concluding there was no evidence the Plaintiff exercised due diligence in attempting to timely serve the defendant, the Court granted the defendant’s Motion to Quash and Dismiss for Failure to Serve within One Year.

The above cases illustrate the importance of examining the timing and circumstances of service. Where a defendant is served more than twelve months after the filing of a complaint, the defendant should not assume that a prior court order extending the time for service is valid. In such circumstances, the defendant should raise the issue by filing a motion to quash service and dismiss for failure to serve within one year under Va. Code § 8.01-277(A).

Disclaimer

This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More