NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

RODNEY J. QUIGLEY, Plaintiff/Appellant,

v.

ARIZONA DEPARTMENT OF TRANSPORTATION, Defendant/Appellee.

No. 1 CA-CV 14-0343

Appeal from the Superior Court in Maricopa County

No. LC2013-000600-001

The Honorable Lisa Daniel Flores, Judge

AFFIRMED

COUNSEL

Rodney J. Quigley, Glendale

Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix

By Stephanie A. Lillie

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
QUIGLEY v. ADOT

Decision of the Court

2

P O R T L E Y, Judge:

¶1 Rodney Quigley appeals the dismissal of his lawsuit against 

Arizona Department of Transportation (“ADOT”). Because we find that 

Quigley did not complete service on ADOT, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Quigley was ordered by ADOT to attend traffic school 

because he had been convicted of a driving offense in Michigan that could 

have resulted in his Arizona license being suspended or revoked pursuant 

to Arizona Revised Statutes (“A.R.S.”) section 28-3306(A)(7).1 He filed a 

complaint for special action relief against the State and ADOT seeking a 

declaration that the statute was unconstitutional and requesting that the 

State be permanently enjoined from enforcing it. He had Donald Hatfield, 

an individual, serve the Arizona Attorney General and the ADOT director.

¶3 When an answer was not timely filed, Quigley filed an 

application and affidavit for entry of default. In response, ADOT filed a 

motion to dismiss arguing that Quigley failed to properly serve ADOT and 

failed to exhaust his administrative remedies because he requested an 

administrative hearing after ADOT ordered him to attend traffic school

pursuant to A.R.S. § 28-3306(A)(7). The superior court granted the motion,

and Quigley appealed the resulting judgment. We have jurisdiction under 

A.R.S. § 12-2101(A)(1).

DISCUSSION

¶4 Quigley argues that the superior court erred by dismissing his 

complaint under Arizona Rule of Civil Procedure (“Rule”) 12(b)(5) because 

the issues with service of process were a trivial technical flaw that resulted 

in harmless error. We disagree.

¶5 Rule 12(b)(5) governs if there is insufficiency of service of 

process of the summons and complaint. See Snow v. Steele, 121 Ariz. 82, 86, 

588 P.2d 824, 828 (1978). Although the parties disagree about our standard 

for reviewing the ruling, we need not resolve the issue because we can 

uphold the Rule 12(b)(5) dismissal under either standard. See Snow, 121 

Ariz. at 84, 588 P.2d at 826 (holding that “the trial court did not abuse its 

discretion in granting the defendants’ . . . [Rule 6(f)] motion to dismiss”); 

Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App. 1997) (stating that the 

standard of review for a denial of a motion to dismiss for insufficiency of 

 

1 We cite to the current version of the statute unless otherwise noted.
QUIGLEY v. ADOT

Decision of the Court

3

process is abuse of discretion); Townsel v. Contra Costa County, 820 F.2d 319, 

320 (9th Cir. 1987) (stating that the standard of review for a dismissal of 

insufficiency of process under Rule 4 is abuse of discretion); but see Prewitt 

Enterprises, Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 920 

(11th Cir. 2003) (stating that, “[w]e review the district court’s grant of a 

motion to dismiss for insufficient service of process under [Federal Rule of 

Civil Procedure] 12(b)(5) by applying a de novo standard to the law and a 

clear error standard to any findings of fact”); Marshall v. Warwick, 155 F.3d 

1027, 1030 (8th Cir. 1998) (stating that, “[i]n reviewing an order to dismiss 

for insufficient service of process, we review de novo the determination that 

service of process was insufficient and we review for abuse of discretion the 

decision to dismiss the complaint”). We review the court’s interpretation 

of statutes and rules de novo. Schwartz v. Ariz. Primary Care Physicians, 192 

Ariz. 290, 294, ¶ 13, 964 P.2d 491, 495 (App. 1998).

¶6 Service of process is required to provide parties with 

adequate notice of the claims against them. Safeway Stores, Inc. v. Ramirez,

99 Ariz. 372, 380, 409 P.2d 292, 297 (1965). Rule 4(d) provides, “[s]ervice of 

process shall be by a sheriff, a sheriff’s deputy, a constable, a constable’s 

deputy, a private process server certified pursuant to the Arizona Code of 

Judicial Administration § 7-204 . . . or any other person specially appointed 

by the court[.]”

¶7 Donald Hatfield submitted an affidavit stating that he served 

Tom Horne, the Attorney General, and John S. Halikowski, the ADOT 

Director by handing the paperwork to a “person apparently in charge” of 

those offices on November 22, 2013. There is no indication in the affidavit 

that Mr. Hatfield is a certified process server or otherwise qualified to serve 

process. His affidavit does not contain a certified private process server 

number or any indication that the court specially appointed him to serve 

process. And Quigley did not otherwise demonstrate that Hatfield was a 

certified process server.

¶8 Moreover, Hatfield’s attempted service failed to comply with 

Rule 4.1(h) (2013). The Rule provides that a party must serve the State by 

serving the Attorney General. Id. Because Hatfield only handed copies of 

the summons and complaint to the “person apparently in charge of the 

Attorney General’s office” and to “to the person apparently in charge of the 

[ADOT] Director’s office on the fourth floor of ADOT’s headquarters,” the 

service of process was ineffectual because Quigley never served the 

Attorney General.
QUIGLEY v. ADOT

Decision of the Court

4

¶9 Because the service of process was improper, the court did not 

have jurisdiction over the defendants or the authority to enter a judgment

against them. See Postal Instant Press, Inc. v. Corral Restaurants, Inc., 187 Ariz. 

487, 488, 930 P.2d 1001, 1002 (1997) (“The incomplete service left the trial 

court without jurisdiction, i.e., without authority to enter the judgment.”). 

As a result, the trial court properly granted the motion to dismiss.2

¶10 Quigley also argues that the judge should have recused

herself sua sponte because she served as an advocate for the State. Judges 

are presumed to be impartial. See State v. Smith, 203 Ariz. 75, 79, ¶ 13, 50 

P.3d 825, 829 (2002). Moreover, Quigley did not use a peremptory challenge 

to remove the judge under Rule 42(f)(1)(A), ask the judge to recuse herself,

or challenge her for cause under Rule 42(f)(2). And we will not consider 

arguments raised for the first time on appeal, when that argument could 

have been raised and decided by the trial court. See Fendler v. Phoenix 

Newspapers, Inc., 130 Ariz. 475, 481, 636 P.2d 1257, 1263 (App. 1981) (stating 

that “[t]he right to apply for a change of judge for cause is waived if not 

timely filed”).

CONCLUSION

¶11 For the foregoing reasons, we affirm the dismissal.

 

2 Because of our resolution, we need not address Quigley’s argument that 

the court erred by finding that he failed to exhaust administrative remedies.