County District Court No. 16CV30543 Honorable Ted C. Tow III,
& Van Donselaar, PLLC, Marlo J. Greer, Denver, Colorado;
Foster Graham Milstein Calisher, LLP, Brian Proffitt, Chip
Schoneberger, Denver, Colorado, for Plaintiff-Appellant
Dickinson Prud'Homme Adams LLP, Gilbert A. Dickinson,
Molly G. Hoffman, Denver, Colorado, for Defendant-Appellee
HCA-HealthONE LLC, d/b/a North Suburban Medical Center
& Avery LLP, David H. Yun, Jared R. Ellis, Denver,
Colorado, for Defendants-Appellees Cindy E. Long, M.D.;
Stacey L. Hennesy, M.D.; and The Women's Health Group,
1 Ladee Taylor's medical malpractice lawsuit was
dismissed after she failed to serve the defendants, Cindy E.
Long, M.D.; Stacey L. Hennesy, M.D.; The Women's Health
Group, P.C.; and HCA-HealthONE LLC, d/b/a North Suburban
Medical Center, with a copy of her complaint within the time
allotted by the district court's delay reduction order.
2 On appeal, she contends that the district court failed to
provide the requisite notice before dismissing the action and
applied the wrong legal standard in evaluating whether she
had demonstrated excusable neglect. We disagree with the
first contention, but we agree with the second. Therefore, we
vacate the court's order dismissing Taylor's lawsuit
and remand for further findings.
Events Giving Rise to the Lawsuit
3 In September 2013, Taylor underwent a laparoscopic
hysterectomy. Following the surgery, Taylor experienced
pelvic pain so substantial that she could not tolerate
sitting at work. Her doctor, who had performed the surgery,
prescribed medication for a urinary tract infection, but the
medication did not alleviate Taylor's symptoms because
she did not have a urinary tract infection. Two weeks later,
Taylor had a second follow-up visit during which she
continued to complain of bladder pain.
4 Though the pain persisted, the second follow-up visit was
Taylor's last. Her doctor decided to end treatment
because Taylor no longer had private insurance and instead
was covered by Medicaid. Taylor was not referred to another
5 Finally, in April 2014, Taylor went to the emergency room,
complaining of "constant, throbbing pelvic pain with
discharge." She was informed that she had a
"residual surgical device in her vagina that was
imbedded in scar tissue and protrud[ing] into the
rectum." A computed tomography (CT) scan showed what
appeared to be a uterine manipulator cup from the
6 Later that month, Taylor underwent surgery to remove the
cup, which was imbedded behind her bladder. She was
subsequently diagnosed with urinary incontinence, chronic
pelvic pain, bladder spasm, and levator spasm - injuries that
she says are permanent.
Procedural History of the Lawsuit
7 On March 31, 2016, Taylor filed a medical malpractice
action against her doctor, a second doctor who assisted in
the surgery, the doctors' medical practice, and the
medical center where the procedure was performed.
8 Under C.R.C.P. 4(m), unless the court specifies a different
time for service or the plaintiff requests an extension,
service must be effectuated within sixty-three days of filing
the complaint - or, in this case, by June 2, 2016.
Taylor's lawyer did not immediately serve the defendants,
and, on May 18, 2016, the district court issued a delay
reduction order, directing Taylor to serve the defendants
within thirty-five days (or June 22, 2016) or the lawsuit
would be dismissed. On June 28, 2016, when proof of service
had not been filed, the court dismissed the case
9 By that time, though, the statute of limitations had run.
Therefore, despite the district court's dismissal of the
lawsuit "without prejudice, " Taylor could not
refile the complaint.
10 So Taylor's lawyer took the following immediate
action: on June 28, the date of the order of dismissal,
counsel filed a motion requesting a vacation of the dismissal
order and a seven-day extension of time to serve the
defendants. In the motion, counsel explained that her
docketing system had apparently malfunctioned during her
transition from her prior law firm to her current firm. She
sought relief from the court's order under C.R.C.P. 60(b)
based on inadvertence or excusable neglect. Then, also on
June 28, counsel served three of the four defendants: the
doctor who had performed the surgery, the medical practice,
and the medical center. The next day, the remaining defendant
11 The district court was not persuaded by Taylor's
hastily filed Rule 60(b) motion. Without holding a hearing,
it denied the motion in a short written order, concluding
that counsel's docketing errors constituted "common
carelessness and negligence" not amounting to excusable
12 Nonetheless, a week later, the medical center filed its
answer and jury demand. Shortly thereafter, counsel for
another defendant sought an extension of time to file her
13 In the meantime, Taylor filed a motion to reconsider under
C.R.C.P. 59, in which she provided a fuller explanation of
the docketing problems. In an affidavit attached to the
motion, counsel told the court that a few weeks before she
filed the complaint, her case management and calendaring
software had somehow been disabled, which apparently deleted
all of her docketed deadlines from her calendaring program.
After some "troubleshooting" with a technician from
the software company, it appeared that the problem had been
resolved and that the re-enabled software had re-entered the
pre-existing deadlines into the computer. But further
investigation - necessarily conducted after she filed her
June 28 motion to vacate the dismissal order - revealed that
many of the docketing entries had not automatically been
re-entered. A technician with whom counsel spoke could not
explain why some of the entries were re-entered upon
re-enabling of the software, but others were not. The
deadline for obtaining service on Taylor's complaint had
been deleted, but not automatically re-entered.
14 As for the district court's delay prevention order,
counsel said that neither she nor her law partner had
received it on their office computers. Instead, the order
appeared on her cell phone. Counsel explained that her
practice was not to open and read court documents on her cell
phone, primarily because she could not access her case
management and calendaring system from her phone. An exhibit
to the motion appeared to show that counsel had not received
an electronic notification of the delay reduction order from
the court's filing system on her computer, and another
exhibit confirmed that the delay reduction order had not been
opened by counsel.
15 In the motion, counsel also argued that the district court
had applied the wrong standard in denying her earlier motion
to vacate the dismissal order. Under Craig v. Rider,
651 P.2d 397 (Colo. 1982), she contended, the court should
have considered not just whether the error arising from the
software malfunction constituted excusable neglect on its
own, but also whether she had asserted a meritorious claim in
the underlying medical malpractice suit and whether granting
relief would be consistent with considerations of equity.
16 Before the court could rule on the Rule 59 motion, Taylor
filed a notice of appeal of the denial of the Rule 60(b)
motion. The district court then declined on jurisdictional
grounds to decide the Rule 59 motion, and that motion was
eventually deemed denied. Taylor later amended her notice of
appeal to include an appeal of the denial of the Rule 59
Notice Under C.R.C.P. 4(m)
17 We turn first to what we consider a threshold argument by
Taylor that the district court's dismissal order was
invalid under C.R.C.P. 4(m) - an argument that, if
successful, would obviate the need to determine whether the
court erred in its excusable neglect analysis.
18 According to Taylor, the district court's delay
reduction order was premature and therefore could not
constitute the requisite notice under Rule 4(m). In the
absence of proper notice, she says, the district court's
dismissal order was invalid.
19 We interpret rules of civil procedure in the same manner
as statutes, applying similar principles of construction.
In Interest of M.K.D.A.L., 2014 COA 148, ¶ 5.
We must therefore interpret the rule according to its
commonly understood and accepted meaning. Antero Res.
Corp. v. Strudley, 2015 CO 26, ¶ 15.
20 Rule 4(m) provides:
Time Limit for Service. If a defendant is not served within
63 days (nine weeks) after the complaint is filed, the court
- on motion or on its own after notice to the plaintiff -
shall dismiss the action without prejudice against that
defendant or order that service be made within a specified
time. But if the plaintiff shows good cause for the failure,
the court shall extend the time for service for an
appropriate period. This subdivision (m) does not apply to
service in a foreign country under rule 4(d).
21 Taylor contends that, consistent with the plain language
of the rule, the court must provide notice after the
deadline for obtaining service has expired. But here, the
district court issued its delay reduction order on May 18,
more than two weeks before the sixty-three-day deadline was
set to expire, and therefore the delay reduction order could
not have served as proper notice that the action would be
dismissed based on her failure to effectuate service.
22 Under Taylor's reading, the expiration of the
sixty-three-day deadline is a condition precedent to both
notice and dismissal: if the defendant is not served within
sixty-three days, then the court (1) must issue a notice and
(2) may dismiss the action without prejudice or impose a new
deadline for service.
23 But we read the sixty-three-day deadline as a condition
precedent only to dismissal or a new deadline. Our reading
finds support in the structure of the rule's first
sentence: without the intervening clause, the sentence
instructs that "[i]f a defendant is not served within
[the deadline], the court . . . shall dismiss the action
without prejudice . . . or order that service be made within
a specified time." C.R.C.P. 4(m). The intervening
clause, which comes between "the court" and
"shall dismiss" describes how "dismissal"
can come about - either via a motion by one of the parties or
on the court's own motion, but if the latter, only after
notice to the plaintiff. In other words, while Taylor reads
the word "notice" to relate to the sixty-three-day
deadline for service, we read the word "notice, "
based on its placement in the text of the rule, to relate to
"dismissal." See Wolf Creek Ski Corp. v. Bd. of
Cty. Comm'rs, 170 P.3d 821, 825 (Colo.App. 2007) (in
interpreting statute, court looks at "the context in
which a statutory term appears" (quoting Robinson v.
Colo. State Lottery Div., 155 P.3d 409, 413 (Colo.App.
24 Moreover, under Taylor's interpretation, although the
rule presents two options for the court - dismissal of the
action or an instruction that "service be made within a
specific time" - the court would always be forced to
exercise the second option. In this case, for example, Taylor
says that the court could not issue a notice until she failed
to comply with the sixty-three-day deadline. And the notice
would have to advise the plaintiff of her noncompliance
before a subsequent dismissal order could be entered. But a
notice of noncompliance and possible dismissal at some time
in the future would then create, in every case, a new
deadline for effectuating service - that is, a
"specified time" within which "service [must]
be made." Thus, Taylor's reading effectively renders
the dismissal option superfluous, a result we avoid in
construing the rule. See Spahmer v. Gullette, 113
P.3d 158, 162 (Colo. 2005) ("We construe a statute so as
to give effect to every word, and we do not adopt a
construction that renders any term superfluous.").
25 We therefore conclude that the rule requires notice before
dismissal, but does not require notice after expiration of
the service deadline.
26 Still, we do not mean to establish a rule that
any notice prior to dismissal, no matter its timing,
would necessarily suffice. The purpose of the notice is to
spur counsel to action, with a warning that the window for
obtaining service is closing and that a failure to meet the
deadline might have dire consequences. A boilerplate delay
reduction order issued within a matter of days of the filing
date may not serve the rule's intended purpose.
27 We have no concern about the timing or content of the
court's order here, though. Just a couple of weeks before
the expiration of the Rule 4(m) deadline, the court issued an
order specifically addressing counsel's obligation to
obtain service on the defendants.
28 Thus, Taylor was not entitled to additional notice beyond
the delay reduction order, and the district court's June