Legal Docs Phoenix

Service of Process Outside Arizona

Alan Ariav — Wed, 24 Oct 2012 17:26:53 +0000

While the filing of the lawsuit constitutes the formal start of the legal action, and stops the statute of limitations, service of process on the defendant must be accomplished under the Arizona Rules of Civil Procedure. The complaint (lawsuit) is merely the statement of the plaintiff’s claim. The Clerk of the Court issues a summons under the seal of the court, announcing the presence of the court and gives the defendant notice that the Arizona court is assuming jurisdiction for the purpose of resolving the “controversy,” or dispute. Service is not effective until process is either served upon or accepted by an authorized representative of the person or entity to be served.

The time limit to serve a party within Arizona is 120 days after the filing of the lawsuit. The day on which the complaint is filed is not counted, but weekends and holidays are included. If service is not made on a defendant within that period, the Arizona court may grant a motion to dismiss the suit or do so on its own initiative. The complaint is dismissed “without prejudice,” meaning that the defendant may be served within a new time period usually set by the court, usually another 120 days. If the plaintiff demonstrates good cause as to why service cannot be accomplished within the initial 120-day period, the court must extend the time for service for an appropriate period. A plaintiff cannot serve his own lawsuit. He must retain a sheriff’s deputy, a constable or a certified process server to do so, and pay them directly for their service.

Alternative or Substitute Service in Arizona

Alan Ariav — Sat, 06 Oct 2012 11:18:27 +0000

The Arizona court can direct an alternative method of service of process when other methods become impracticable. While the rule was primarily addressed to the situation when a third party, such as a residential security guard or office receptionist, denies access to the person on whom service is sought, it is not limited in its application to such situations.

An application must be made to the court for authority to employ alternative service and, regardless of the alternative method of service the court authorizes. a copy of the summons, the lawsuit and other ancillary documents must be mailed to the last known business or residential address of the person on whom effective service is sought. We will discuss service by publication in a later blog.

Service Upon Corporations Under Arizona Law

Alan Ariav — Wed, 03 Oct 2012 03:53:07 +0000

Corporations that are organized under the laws of Arizona, and “foreign” (out-of-state) corporations that conduct business in Arizona, such as Microsoft, are required by statute to appoint a resident of Arizona to accept service of process. The usual manner of accomplishing service upon such a corporation is to serve that “statutory agent.” Service may also be effected upon an officer or managing or general agent. The officer or agent served, on the other hand, must be of a character and rank that assures that the corporate defendant will receive actual notice of the service. Service upon the sole stockholder who shares an address with the corporate party has been held to satisfy the requirements of the due process clause and the requirements of the Arizona Rules of Civil Procedure.

Voluntary Appearance in Arizona

Alan Ariav — Mon, 01 Oct 2012 23:04:03 +0000

In Arizona, a person may voluntarily accept service by formally signing an acceptance or waiver of service, which must be in writing, or by entering a general appearance in the action. This rule also applies to litigants in Arizona courts without attorneys. A general appearance by a party or counsel has the same effect as a timely and valid service of a summons. Mere physical presence in court, however, without participation in the proceedings, does not constitute an appearance. Such an appearance is usually referred to as a “special appearance.” Similarly, an appearance to defend against a garnishment does not constitute an appearance in the main action in which the writ was issued. Service of process in Arizona upon an attorney who has entered a special appearance in the action to contest personal jurisdiction is not sufficient to secure service upon the client.

Lastly, a party’s participation in proceedings after unsuccessfully moving to dismiss for insufficient process, and when the party still refuses to submit to the court’s jurisdiction, does not constitute a voluntary appearance.

Return of Service in Arizona

Alan Ariav — Sun, 30 Sep 2012 21:23:15 +0000

Return of service in Arizona refers to the time when the process server files an affidavit of service with the court indicating whether he served the defendant or was unable to serve him. He can try later to serve the defendant again once he obtains more specific information on his whereabouts. The judge gets a copy of the affidavit for her file.

A return of service must be made within the time during which the person must respond to the lawsuit. The return of service by the sheriff or duly appointed or registered process server may be “impeached” — questioned the veracity or credibility of the server — only by the high standard of clear and convincing evidence.

Amending Process in Arizona

Alan Ariav — Sat, 29 Sep 2012 20:56:55 +0000

Under the Arizona Rules of Civil Procedure, the judge may permit an amendment to process of service or to the proof of service unless the amendment would result in “material prejudice” to the “substantial rights” of the party against whom the process was or is issued.

Replacement Summons in Arizona

Alan Ariav — Fri, 28 Sep 2012 18:14:11 +0000

The Arizona Rules of Civil Procedure now authorizes the Clerk’s issuance of what is called a “replacement summons” when the original summons is lost or is, for some reason, returned without being served. A replacement summons is deemed to have been issued on the same date as the original summons.

The Summons in Arizona

Alan Ariav — Wed, 26 Sep 2012 22:01:01 +0000

The summons tells the defendant he is being sued. It is normally served by a certified process server along with the lawsuit and other ancillary documents. The summons also informs the defendant that he must “appear and defend” himself within 20 days after he was served with the summons and complaint (the lawsuit). The phrase appear and defend means the defendant can file an answer to the lawsuit or a motion to dismiss the lawsuit, among other motions at his disposal. If the summons is served outside Arizona, the defendant has 30 days to appear and defend from the date of service. Service by publication is complete 30 days after the first date of publication. Direct service — a process server handing the lawsuit to the defendant — is complete when made. Service upon the Arizona Motor Vehicle Superintendent, for example, is complete within 30 days after filing the affidavit of compliance and return receipt or officer’s return.

Arizona Service Upon Unknown Heirs By Publication

Alan Ariav — Wed, 26 Sep 2012 17:54:14 +0000

Service in Arizona may be accomplished by publication in actions involving real property where parties of unknown heirs are necessary to complete the lawsuit. The publication need only be made in the county where the action is pending because, by definition, there will be no last known residence addresses for the heirs in question, so it makes no sense to advertise in every county in Arizona.

Removing a Lis Pendens in Arizona

Alan Ariav — Wed, 26 Sep 2012 12:46:19 +0000

We spoke last time about what a lis pendens is. We will address now how to remove one. In Arizona, the removal of an improper lis pendens can be secured through motion or application in that action in connection with which it was filed. The law also allows the owner or beneficial title holder of the real property affected to bring an independent action to claim title to the property and for damages. The denial of a motion to quash a lis pendens is not an order that can be appealed to the Arizona Court of Appeals. Relief may be available, however, through a petition for special action with the Arizona appellate courts when the denial of the motion to quash was an abuse of discretion by the Arizona trial judge.