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Packheiser v. Miller

June 2, 2005

LISA PACKHEISER, APPELLANT,
v.
GEORGE F. MILLER, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-4182-03). (Hon. Zoe Bush, Trial Judge).

The opinion of the court was delivered by: Reid, Associate Judge

Argued May 12, 2005

Before SCHWELB, REID and WASHINGTON, Associate Judges.

On May 22, 2003, appellant Lisa Packheiser filed a complaint against appellee George F. Miller, alleging medical malpractice. On November 19, 2003, after several unsuccessful attempts by Ms. Packheiser to serve process on Dr. Miller, Dr. Miller moved to quash service of process and to dismiss the complaint. The trial court granted Dr. Miller's motion and dismissed the complaint. On December 23, 2003, Ms. Packheiser filed a motion to vacate the order pursuant to Super. Ct. Civ. R. 41 (b); this motion was denied. On appeal, Ms. Packheiser claims that the trial court abused its discretion in denying her motion to vacate. We reverse and remand.

FACTUAL SUMMARY

The record before the court shows that on May 22, 2003, Ms. Packheiser, acting pro se, filed a complaint against Dr. Miller, her plastic surgeon, alleging medical malpractice stemming from facial plastic surgery. Pursuant to Super. Ct. Civ. R. 4 (m), Ms. Packheiser had sixty days from the date of filing her complaint to show proof of service of the summons and complaint on Dr. Miller. On July 22, 2003, exactly sixty days after filing her complaint, Ms. Packheiser filed a praecipe with the trial court alleging that while she had mailed Dr. Miller a copy of the complaint via U.S. Postal Service certified mail, she had failed to receive confirmation of its delivery.*fn1

On July 31, 2003, Ms. Packheiser filed a second praecipe with the trial court. Ms. Packheiser explained that she had failed to receive a copy of the "green card" from the Postal Service which would ordinarily act as confirmation of delivery. She stated that in lieu of including the green card in her filings, she had enclosed "a copy of the actual signed [green] card that [she] received from the Post Office." Ms. Packheiser also attached a computer printout, obtained from the U.S. Postal Service's website, which showed that her complaint was delivered on July 21, 2003.*fn2 On August 8, 2003, Ms. Packheiser filed a third praecipe with the trial court. She stated that the "Post Office ha[d] apparently misplaced the green card" and that as a result she would not be able to produce it for the trial court.

On August 22, 2003, the trial court held a status conference on Ms. Packheiser's matter. Based upon her earlier representations, the trial court granted Ms. Packheiser's oral motion to extend Rule 4 (m)'s sixty-day time period for service of process for an additional sixty days -- giving her until October 21, 2003. On August 28, 2003, Ms. Packheiser again attempted to serve process on Dr. Miller via U.S. Postal Service certified mail. On September 23, 2003, Ms. Packheiser filed an affidavit with the trial court claiming that she had served Dr. Miller a copy of the complaint and summons. While acknowledging that "[a]gain, the post office ha[d] not returned the green card," Ms. Packheiser included a computer printout from the Postal Service's website showing that her second attempt at service was delivered on September 4, 2003; however, it failed to indicate who signed for the document or where it was delivered.

On October 21, 2003, Dr. Miller filed a motion to quash service of process and to dismiss the complaint. Dr. Miller argued that Ms. Packheiser had failed to comply with Super. Ct. Civ. R. 4 because she had "not filed an affidavit containing the information required by Rule 4(l)(2)." Specifically, he argued that there were not "any specific facts from which the [trial] Court [could] determine that the person who signed the receipt [met] the qualifications set forth in Rule 4 (e)-(j)." Dr. Miller argued that Ms. Packheiser's complaint should be dismissed because she "had until October 21, 2003 to file a proof of service that meets the requirements of Rule 4(l)(2)." On October 29, 2003, after employing a private process server, Ms. Packheiser was finally able to have Dr. Miller personally served. Ms. Packheiser filed an affidavit of service in the trial court on October 31, 2003.

By order dated November 12, 2003, the trial court denied Dr. Miller's "unopposed" motion to quash service and to dismiss the complaint. The trial court denied Dr. Miller's motion without explanation, although it noted that Ms. Packheiser had filed an affidavit of service. On November 19, 2003, Dr. Miller filed a second motion to quash service and dismiss the complaint, arguing that Ms. Packheiser's complaint should be dismissed because she had failed to offer "proof of service . . . within 60 days after filing the complaint" as required by Rule 4. Dr. Miller noted her attempt to serve him on October 29, 2003, was untimely under the trial court's sixty-day extension, which expired on October 21, 2003. The trial court did not immediately rule on Dr. Miller's motion.

A status hearing was held on November 21, 2003. Ms. Packheiser, now represented by counsel, asked the court for an "additional 60 day[]" extension pursuant to Super. Ct. Civ. R. (6) "to serve the doctor." Dr. Miller, who was represented by substitute counsel, repeated his argument that the trial court should dismiss Ms. Packheiser's complaint for failing to serve process by October 21, 2003. The trial court, however, stated that it did not actually have a copy of Dr. Miller's second motion to dismiss and was therefore reluctant to rule on the matter. Instead, at Ms. Packheiser's suggestion, the trial court scheduled another status conference for December 19, 2003. The trial court stated that they would "discuss service and early mediation . . . on December 19th." Finally, when asked by Ms. Packheiser if she could "respond to the renewed motion to quash," the trial court stated that she "could raise it again at the status hearing."*fn3

On December 15, 2003, four days before the scheduled status hearing, the trial court granted Dr. Miller's second motion to quash service and dismiss the complaint. The trial court provided no explanation for its ruling, other than to note that Dr. Miller's motion was "unopposed." On December 23, 2003, Ms. Packheiser filed a motion pursuant to Super. Ct. Civ. R. 41 (b) to vacate the trial court's order. This motion was denied without discussion.*fn4

Ms. Packheiser filed a timely notice of appeal on ...


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