Opinion
1 CA-CV 23-0797
06-27-2024
PHILLIP STEVEN MATWYUK, Plaintiff/Appellant, v. STATE OF ARIZONA, et al., Defendants/Appellees.
Phillip Steven Matwyuk, Tucson Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Daniel P. Schaak, Claudia Acosta Collings Counsel for Defendants/Appellees State of Arizona Jellison & Robens, PLLC, Scottsdale By James M. Jellison, Rodney F. W. States Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015CV202200058 The Honorable Lee Frank Jantzen, Judge
Phillip Steven Matwyuk, Tucson Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix By Daniel P. Schaak, Claudia Acosta Collings Counsel for Defendants/Appellees State of Arizona
Jellison & Robens, PLLC, Scottsdale By James M. Jellison, Rodney F. W. States Counsel for Defendants/Appellees
Presiding Judge Anni Hill Foster delivered the decision of the Court, in which Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe joined.
MEMORANDUM DECISION
FOSTER, JUDGE
¶1 Phillip Matwyuk appeals the superior court's denial of a default judgment and subsequent dismissal of his case. For the following reasons, the superior court's dismissal is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2014, Matwyuk was convicted of attempted second- degree murder, first-degree burglary, five counts of aggravated assault, disorderly conduct, and two counts of misdemeanor assault stemming from an altercation with his ex-girlfriend, her relative, and a male friend, resulting in a total sentence of approximately 36 years. State v. Matwyuk, 1 CA-CR 14-0202, 2015 WL 3400939, at *3, ¶ 13 (Ariz. App. May 26, 2015) (mem. decision). His convictions and sentences were affirmed upon appeal, his state post-conviction relief petition was denied, and his federal habeas corpus petition was denied. Id. at ¶ 16; State v. Matwyuk, 1 CA-CR 16-0833 PRPC, 2017 WL 5147238, at *1, ¶ 3 (Ariz. App. Nov. 7, 2017) (mem. decision); Matwyuk v. Ryan, CV-18-08299-PCT-JAT, 2020 WL 3026487, at *5 (D. Ariz. June 5, 2020) (mem. decision).
¶3 In the present case, Matwyuk sued the lead investigator in his case, Brian DeLong; the Kingman Police Department; the prosecutor in his case, James Schoppmann; the "Mohave County District [sic] Attorney's Office," (all four collectively, "City and County Defendants") along with the State and Attorney General Mark Brnovich (collectively, "State Defendants"). His complaint alleged fraudulent schemes, "with[olding], tamper[ing], destroy[ing], [and] falsif[ying] evidence," prosecutorial misconduct, and supporting terrorism, all in furtherance of convicting him. He later filed a document he captioned as "Proof of Service" affirming that he served each defendant by certified mail and further provided the Certified Mail Receipts. After more than a month without any filings from the defendants, Matwyuk filed documents he captioned as "Entr[ies] of Default" against each defendant.
¶4 Within two days of the filing of the "Entry of Default" documents, City and County Defendants made their first appearance in the case, waived service, and removed the case to the federal court. While the case was pending in federal court, Matwyuk moved for default judgment in the state superior court. After a mandatory screening under 28 U.S.C. § 1915A, the district court dismissed Matwyuk's federal claims for failure to state a claim and because he had not received a "favorable determination" of his underlying convictions as required by Heck v. Humphrey, 512 U.S. 477, 489 (1994). The court remanded the case back to the superior court to resolve his state claims.
¶5 The case was returned to the state system on June 21, 2022. Six days later, City and County Defendants moved to dismiss the remaining state claims for failure to file within the applicable statute of limitations, failure to strictly comply with Arizona's notice of claim statute A.R.S. § 12821.01, the Mohave County Attorney's Office and Kingman Police Department are nonjural entities, preclusion because of Matwyuk's habeas corpus action, absolute immunity against Schoppmann, and qualified immunity against DeLong. The next day, State Defendants made their first appearance in the case and also moved to dismiss for failure to comply with Arizona's notice of claim statute, failure to state a claim against Brnovich in either his official or individual capacity, and because Matwyuk never claimed serious physical injury as required by A.R.S. § 31-201.01(L). A few months later, the court dismissed Matwyuk's claims against State Defendants as barred by statute and found no remaining pending matters. City and County Defendants moved for clarification, and the court issued its final judgment dismissing "all claims against all defendants."
¶6 Matwyuk timely appealed. This Court has jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
DISCUSSION
¶7 Matwyuk argues the court committed two errors: (1) not entering default judgment against the defendants and (2) dismissing the case. To resolve these issues this Court must consider how the superior court applied the Arizona Rules of Civil Procedure, which this Court reviews de novo. Stafford v. Burns, 241 Ariz. 474, 483, ¶ 35 (App. 2017).
I. The superior court properly denied the default judgment.
¶8 A plaintiff may seek default judgment when a defendant "has failed to plead or otherwise defend" the case. Ariz. R. Civ. P. 55(a)(1). A defendant has 20 days to file "an answer or other responsive pleading" after being served. Ariz. R. Civ. P. 12(a)(1)(A)(i). When seeking a default judgment, the plaintiff must file an application and include proof of service. Ariz. R. Civ. P. 55(a)(2)(F). Filing the application enters the default, which becomes effective after ten days unless the opposing party "pleads or otherwise defends" during that time. Ariz. R. Civ. P. 55(a)(4)-(5).
¶9 Matwyuk argues that default judgment was mandatory because he served the defendants via certified mail, more than 20 days passed after the defendants received those mailings, the defendants never filed anything during that time, and Matwyuk filed "Entr[ies] of Default." But Matwyuk never properly served the defendants. "[P]roper service . . . is a legal question of personal jurisdiction which [this Court] review[s] de novo." Ruffino v. Lokosky, 245 Ariz. 165, 168, ¶ 9 (App. 2018) (citations omitted).
¶10 A party generally has three ways to serve an individual:
(1) delivering a copy of the summons and the pleading being served to that individual personally;
(2) leaving a copy of each at that individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(3) delivering a copy of each to an agent authorized by appointment or law to receive service of process.Ariz. R. Civ. P. 4.1(d). Matwyuk did not follow any of these methods; he used certified mail without the court's leave. "Service by mail is an alternative form of service, available in lieu of personal service." Postal Instant Press, Inc. v. Corral Rests., Inc., 186 Ariz. 535, 537 (1996), supp. op., 187 Ariz. 487 (1997); Ariz. R. Civ. P. 4.1(k)(2). But to use an alternative means of service, the serving party must show that the other ways of serving process are impractical. Ariz. R. Civ. P. 4.1(k)(1). Even then, this allowance is at the court's discretion. Id. (stating "the court may" order service under an alternative means (emphasis added)).
¶11 The record here does not reflect that Matwyuk showed the impracticability of regular service or that the court granted the use of alternative service. Thus, Matwyuk was not permitted to serve the defendants via certified mail. And because Matwyuk had not properly served the defendants by the time he filed his entries of default, the court lacked personal jurisdiction over the defendants to enter a default judgment against them. See Ruffino, 245 Ariz. at 168, ¶ 10.
¶12 Because the defendants were never properly served, the court could not assert personal jurisdiction over them until they filed and waived service. Blair v. Blair, 48 Ariz. 501, 506 (1936) ("[I]t has been accepted as axiomatic that a judgment which acts in personam may not be rendered against a defendant unless such defendant has either been served personally . . . or has voluntarily entered an appearance."); Morgan Bank (Del.) v. Wilson, 164 Ariz. 535, 537 (App. 1990) (concluding that a court may assert personal jurisdiction over a defendant who consents because "[p]ersonal jurisdiction is a right which may be waived").
¶13 Here, City and County Defendants filed a waiver of service and then removed the case to the federal court system the next day. Once the case was remanded back to the state court, they moved to dismiss within 20 days. As for State Defendants, their first filing-and submission to personal jurisdiction-was a motion to dismiss the case. All defendants defended the case within the time allotted and the denial of the default was proper. Ariz. R. Civ. P. 12(a)(1)(A)(i).
II. The superior court properly dismissed the case as time barred.
¶14 Matwyuk also contends that the court erred in dismissing his case. This Court reviews a dismissal for failure to state a claim de novo and may affirm if the dismissal "is correct for any reason." Old Republic Nat'l Title Ins. Co. v. New Falls Corp., 224 Ariz. 526, 530, ¶ 19 (App. 2010); Hammer Homes, LLC v. City of Phoenix, 256 Ariz. 472, 474, ¶ 10 (App. 2023).
¶15 Before suing a public entity or public employee, a plaintiff must file a notice of claim with a person authorized to accept service on behalf of that entity or employee. A.R.S. § 12-821.01(A). This must happen within 180 days of the cause of action accruing or the claim will be barred. Id. "[A] cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage." A.R.S. § 12-821.01(B). This strict requirement "serve[s] to allow the public entity to investigate and assess liability, to permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting." Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 527, ¶ 9 (2006) (internal quotation and citation omitted). If a plaintiff properly notices a claim, then the statute of limitations to file a claim is one year from when the cause of action accrues. A.R.S. § 12-821.
¶16 Matwyuk signed and mailed the Notice of Claim in this case in October 2021 and filed his complaint in January 2022. To satisfy the statutory deadlines, the latest conceivable date Matwyuk could have realized he was damaged (assuming the truth of his complaint) was when he was sentenced in March 2014; he did not allege that new information was presented after this time to support his claims. As for his knowledge of "the cause, source, act, event, instrumentality or condition," Matwyuk raised grounds against the City and County Defendants in both his 2018 federal habeas corpus petition and his 2016 state post-conviction relief petition. Moreover, Matwyuk filed a document in this case in which he admitted he "has made multiple attempts to settle this matter since 2012 with the [defendants]." This shows Matwyuk knew "the cause, source, act, event, instrumentality or condition that caused or contributed to [his] damage" (again, assuming the truth of his complaint) before 2021. Matwyuk's notice of claim was well past the 180 days allotted, and he filed his claim after the one-year statute of limitations expired. The superior court's dismissal was proper.
¶17 Although the defendants raise other arguments supporting the superior court's dismissal, this Court need not address those arguments because the time-bar issue resolves the matter in their favor. See In re M.N., 1 CA-JV 22-0227, 2024 WL 1874759, at *4, ¶ 20 (Ariz. App. Apr. 30, 2024) ("Because Father prevails on this issue, this Court need not address Father's other arguments.").
CONCLUSION
¶18 For the reasons above, the superior court's ruling is affirmed.