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Taylor v. HCA-HealthONE LLC

Court of Appeals of Colorado, Sixth Division

March 8, 2018

Ladee Taylor, Plaintiff-Appellant,
v.
HCA-HealthONE LLC, d/b/a/ North Suburban Medical Center; The Women's Health Group, P.C.; Cindy E. Long, M.D.; Stacey L. Hennesy, M.D., Defendants-Appellees.

         Adams County District Court No. 16CV30543 Honorable Ted C. Tow III, Judge

          Greer & 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

          Jaudon & 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, P.C.

          OPINION

          HARRIS, JUDGE

         ¶ 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.

         I. Background

         A. The 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 doctor.

         ¶ 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 hysterectomy.

         ¶ 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.

         B. 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 "without prejudice."

         ¶ 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 was served.

         ¶ 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 neglect.

         ¶ 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 answer.

         ¶ 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 motion.

         II. 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. 2006))).

         ¶ 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 ...


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