03/28/2024 — CV2023012492 ABATE, ANTHONY J 03/28/2024 HONORABLE FRANK W. MOSKOWITZ View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
03/29/2024 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-012492
03/28/2024
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE FRANK W. MOSKOWITZ
S. Motzer
Deputy
SUN CITY GRAND COMMUNITY
ASSOCIATION INC
KATHERINE J MEROLO
v.
ANTHONY J ABATE, et al.
ANTHONY J ABATE
19726 N MOUNTAIN SAGE LN
SURPRISE AZ 85374
COLLEEN M ABATE
19726 N MOUNTAIN SAGE LN
SURPRISE AZ 85374
BROCK J HEATHCOTTE
COMM. KAISER
JUDGE MOSKOWITZ
MINUTE ENTRY
This division has received Plaintiff’s e-filed Application/Affidavit for Entry of Default
against Defendant(s) Anthony J. Abate and Colleen M. Abate, Trustees of the Anthony J.
Abate and Colleen M. Abate Revocable Living Trust Dated April 28, 2003, who are believed
to be deceased, and any Unknown Heirs and Devisees in the above-captioned case.
IT IS ORDERED that no action will be taken by this division on the above referenced
document(s).
The parties are advised that commissioners handle Rule 55(b) Default Judgment
proceedings and that the default proceedings in this matter are to be heard by Commissioner Brian
Kaiser.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-012492
03/28/2024
Docket Code 023
Form V000A
Page 2
IT IS FURTHER ORDERED that all documents necessary to support the entry of a
default judgment must be e-filed.
Pursuant to the Maricopa County eFiling Guidelines, section 2.09, attorneys shall
electronically file all the documents required to request a default judgment, such as the Application
for Entry of Default, Motion for Entry of Default Judgment, Sum Certain Affidavit, and
Application for Attorneys’ Fees when appropriate and Statement of Costs, but shall submit a
default judgment packet required by the Court, including the documents identified on the default
judgment packet coversheet in paper to the assigned commissioner’s division. A commissioner
will not act upon a Motion for Entry of Default Judgment until the default judgment packet with
all the required documents has been received by the division in paper form.
The parties/counsel can find additional information in the form of frequently asked
questions at:
http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/howDoI.asp
The parties/counsel can find additional information regarding the default judgment process
at: https://superiorcourt.maricopa.gov/llrc/cv_cvc6/.
11/20/2023 — CV2023012492 ABATE, ANTHONY J 11/20/2023 HONORABLE FRANK W. MOSKOWITZ View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
11/27/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-012492
11/20/2023
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE FRANK W. MOSKOWITZ
J. Holguin
Deputy
SUN CITY GRAND COMMUNITY
ASSOCIATION INC
KATHERINE J MEROLO
v.
ANTHONY J ABATE, et al.
ANTHONY J ABATE
19726 N MOUNTAIN SAGE LN
SURPRISE AZ 85374
COLLEEN M ABATE
19726 N MOUNTAIN SAGE LN
SURPRISE AZ 85374
SECRETARY OF HOUSING AND
URBAN DEVELOPMENT
451 7TH ST SW
WASHINGTON DC 20410
JUDGE MOSKOWITZ
MINUTE ENTRY
Pending before the Court is Plaintiff’s Motion to Extend Service Deadline, filed November
15, 2023 (“the Motion”).
THE COURT FINDS AS FOLLOWS:
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-012492
11/20/2023
Docket Code 019
Form V000A
Page 2
“Rule 4(i) provides a mandatory extension based on good cause and a discretionary
extension without a showing of good cause.” Sholem v. Gass in & for Cnty. of Maricopa, 248
Ariz. 281, 286 (2020).
The Court in Sholem went on to explain that:
Proving good cause under Rule 4(i) requires a plaintiff to show that, under the
specific facts of the case, she exercised reasonable diligence in trying to serve
the defendant. See Grobe, 105 Ariz. at 579, 468 P.2d at 938 (stating that former
Rule 6(f) “places a legal duty upon a plaintiff to exercise due diligence in
serving a defendant within” the prescribed time period); Maher, 211 Ariz. at
548 ¶ 14, 124 P.3d at 775 (“[T]o show good cause to extend time ... a plaintiff
must demonstrate ... diligence in trying to serve the defendant.”).
To show reasonable diligence, a plaintiff must provide the court with a valid
reason or explanation for failing to serve the defendant within the allotted time
period. See Snow, 121 Ariz. at 83–84, 588 P.2d at 825–26 (stating that there
was no good cause for an extension where plaintiff supplied no “satisfactory
reason” for missing the service deadline); Air Power, Inc., 142 Ariz. at 494,
496, 690 P.2d at 795, 797 (holding that there was no good cause shown where
plaintiff failed to provide a valid reason or explanation “as to why service was
not made within the one-year period”); see also Boley v. Kaymark, 123 F.3d
756, 758 (3rd Cir. 1997) (stating that under Federal Rule 4(m), “[i]n
determining whether good cause exists, a court's ‘primary focus is on the
plaintiff's reasons for not complying with the time limit in the first place’ ”
(citation omitted)). Ignorance of the rule, mistake, and inadvertence do not
constitute a valid reason for missing the service deadline. See Mann v. Castiel,
681 F.3d 368, 376 (D.C. Cir. 2012).
****
Specifically, a valid reason generally involves a circumstance such as “sudden
illness, natural catastrophe, or [defendant's] evasion of service of process,” all
of which are outside a plaintiff's control. Gambino v. Vill. of Oakbrook, 164
F.R.D. 271, 274 (M.D. Fla. 1995); see also Lepone-Dempsey v. Carroll Cty.
Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (“Good cause exists ‘only
when some outside factor[,] such as reliance on faulty advice ... prevented
service.’ ” (citation omitted)).
****
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-012492
11/20/2023
Docket Code 019
Form V000A
Page 3
However, abandoning service after a few unsuccessful attempts does not
constitute diligence. See Riley v. Superior Court, 116 Ariz. 89, 91, 567 P.2d
1218, 1220 (App. 1977) (stating plaintiffs failed, in part, to exercise reasonable
diligence because they made only one attempt to serve defendants, who had
moved to China, while they were in the United States); see also Barrett v. City
of Allentown, 152 F.R.D. 46, 48–49 (E.D. Pa. 1993) (stating there was no good
cause for failure to make *290 **282 proper service under former Rule 4(j)
where plaintiff made two attempts to serve the defendants with an original
complaint and one attempt to serve the amended complaint). Additionally,
diligence generally requires a plaintiff to engage in multiple attempts to serve
the defendant throughout the allotted time period. See D'Amario v. Russo, 750
F. Supp. 560, 563–64 (D.R.I. 1990) (finding good cause shown where plaintiff
attempted service on “numerous occasions throughout the month”); cf.
Saucedo v. Engelbrecht, 149 Ariz. 18, 19, 716 P.2d 79, 80 (App. 1986) (finding
diligence sufficient to satisfy due process and allow service by publication
when the plaintiff made several attempts over eight months to locate and serve
defendant).
****
Although Rule 4(i) provides a court discretion to grant an extension without
good cause shown, this discretion is not “limitless.” Efaw, 473 F.3d at 1041;
see also Mann v. Castiel, 729 F. Supp. 2d 191, 198 (D.D.C. 2010) (stating that
under Federal Rule 4(m), “plaintiffs need not show good cause, but they must
still show some cause as to why the Court should not dismiss their case.”)
(internal quotation marks omitted). As an initial matter, a court's discretionary
finding must be based on facts contained in the record. See United Imps. and
Exps., Inc. v. Superior Court, 134 Ariz. 43, 46, 653 P.2d 691, 694 (1982),
abrogated on other grounds by Gonzalez v. Nguyen, 243 Ariz. 531, 414 P.3d
1163 (2018) (“A discretionary finding of fact based on no evidence is arbitrary
and an abuse of discretion.”).
In determining whether to grant a discretionary extension, courts have
considered several factors, including whether: (1) the applicable statute of
limitations bars the plaintiff from re-filing the action; (2) the defendant evaded
service; and (3) the defendant would be prejudiced if the court grants the
extension.
Id. at 289- 90.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-012492
11/20/2023
Docket Code 019
Form V000A
Page 4
Here, Plaintiff states that it “provided payoff figures to Defendants. Plaintiff requests this
extension so that updated payoff figures can be provided and then, if no payment is remitted, so
that it can request and accomplish service by publication. This request is not may [sic] for any
undue purpose or delay, but rather to conserve costs and resources.” While the Court appreciates
the desire to conserve costs and resources, unfortunately that is not a relevant factor for an
extension under Sholem.
IT IS THEREFORE ORDERED denying the Motion without prejudice to refiling
provided a proper showing for an extension can be made under Sholem.
