Cornett v. Carr , 2013 Okla. LEXIS 37 ( 2013 )

COMBS, J.,

with whom KAUGER, WINCHESTER and TAYLOR, JJ., join, dissenting:

11 The majority opinion conclusion to strike Rule 9 from the Rules of the District Courts of Oklahoma is a position I cannot support. The majority finds Rule 9(a) directly conflicts with 12 0.8.Supp.2002 § 2004(T) "to the extent it shortens a plaintiff's allocated time for service of summons". Rule 9(a) concerns the issuance of summons not service of summons and therefor does not shorten the time for service of summons, but rather allows for the trial court to manage the docket.

12 Robert Cornett, appeals the district court's sua sponte order dismissing this case without prejudice on the basis that Cornett failed to issue summons or file a waiver pursuant to Rule 9(a) of the Rules for District Courts of Oklahoma, 12 0.9.2001, Ch. 2 App. Cornett asserts the district court erred in dismissing this case pursuant to Rule 9(a) because this rule conflicts with 12 O.8.Supp. 2002 § 2004(D). Cornett further asserts his actions were not dilatory and he should have been given the opportunity to show good cause for the delay in issuing summons.

T3 Rule 9(a) provides an established, long recognized method for the District Court to manage its docket. This section reads:

Rule 9 Diligence in Prosecution

a. In a case in which summons is not issued or waiver filed within ninety (90) days after the filing of the petition, or alias summons is not issued within (30) days after the return of the summons not served, the action may be dismissed by the court without notice to the plaintiff. (Emphasis added)

Title 12 0.8. Supp.2002 $ 2004(I) provides:

SUMMONS: TIME LIMIT FOR SERVICE. If service of process is not made upon a defendant within (180) days after the filing of a petition and the plaintiff cannot show good cause why such service was not made within that period, the action may be dismissed as to that defendant without prejudice upon the court's own initiative with notice to the plaintiff or upon motion. The action shall not be dismissed where a summons was served on the defendant within one hundred eighty (180) days after the filing of the petition and a court later holds that the summons or its service was invalid. After a court quashes a summons or its service, a new summons may be served on the defendant within a time specified by the judge. If the new summons is not served within the specified time, the action shall be deemed to have been dismissed without prejudice as to that defendant. This subsection shall not apply with respect to a defendant who has been outside of this state for one hundred eighty (180) days following the filing of the petition.

T4 Rule 9a) does not conflict with 12 O.S8.8upp.2002 § 2004(I). Rule 9(a) pertains to the issuance or waiver of summons. Section 2004(I) specifies the time limit within which service of process shall be made. Section 2004(I) clearly presupposes that summons has been issued in the case. There is no indication in the limited record that summons was ever issued in this case; therefore the 180 day time allowance for serving such summons under 12 O.S8.Supp.2002 § 2004(I) was never invoked. The present proceeding was first filed in January 2006, and was initially dismissed in March of 2008, without prejudice, for failure to appear at the pretrial conference. The journal entry reflecting this dismissal was filed on May 1, 2008. It was subsequently refilled in April of 2009, no summons was issued and the trial court dismissed the second suit on August 4, 2009 pursuant to Rule 9(a). There is no indication in the record that Cornett ever attempted to remedy the deficiency which caused the district court's invocation of Rule 9(a) or that he presented any facts supporting the reasons for delay in issuing summons ¹. See, Willis v. Sequoyah House, Inc., 2008 OK 87, ¶¶ 13-15, 194 P.3d 1285. Cornett never sought a show cause order to explain his failure to issue summons.

15 Now in 2013, Cornett is allowed an additional 84 days to complete service of summons on a lawsuit first filed over 7 years ago. Rule 9(a) allows the trial court to manage its docket. The consideration of Rule 9a) and 12 0.98.2004.1 are not inconsistent but provide for a stair stepped approach allowing a trial court the opportunity to dispose of litigation as rapidly as possible for all parties. A plaintiff's access to the courts must be balanced with the defendant's opportunity to respond to frivolous filings meant to cloud dockets and inflict unnecessary strife.²

T6 The issuance of summons within 90 days of the filing of the petition is not an unreasonable requirement. A defendant should be able to rely upon the court's discretionary disposal of proceedings filed but not pursued within 90 days. Why require the defendant to be in limbo for 180 days? The dismissal is without prejudice to refiling and a plaintiff's access to the courts is not significantly impaired. Rule 9(a) provides a balancing of the scales of justice for all litigants. I respectfully dissent to the majority opinion rendering Rule 9 unnecessary and striking it from the Rules for the District Courts of Oklahoma. I would find the district court did not abuse its discretion in dismissing this case without first ordering Cornett to show good ecause why it should not be dismissed. The district court's order of dismissal should be affirmed.

1 . Rule 9(b) provides: "Where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice. A court shall dismiss actions in which no action has been taken for a year as provided in 12 0.$.1981 § 1083."

2 . Consider the effects of simply filing a petition as in the present matter. 12 O.S. § 2004.2 Notice of pendency of action, provides in pertinent part:

A. Upon the filing of a petition, the action is pending so as to charge third persons with notice of its pendency. While an action is pending, no third person shall acquire an interest in the subject matter of the suit as against the prevailing party's title:

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2. Notice of the pendency of an action shall have no effect unless service of process is made upon the defendant or service by publication is commenced within one hundred twenty (120) days after the filing of the petition. Emphasis added.