Brandon L. McMahan v. Grasshopper Trans. Inc.

Arizona Court of Appeals, Division One

August 28, 2025

JSH Attorney:  Justin Ackerman, Brett Silverstein

In February 2023, Brandon L. McMahan was injured at a construction site by a tractor-trailer allegedly operated by Grasshopper Transportation Inc. McMahan sued Grasshopper in February 2024, serving the complaint on an employee of Grasshopper’s statutory agent. The employee accepted the documents and forwarded them to Grasshopper, which notified its insurance carrier the same day.

After Grasshopper failed to respond to the complaint, McMahan moved for entry of default, which became effective on April 29, 2024. On June 11, 2024, Grasshopper filed an answer, asserting multiple defenses but not insufficient service of process. In July and August 2024, Grasshopper twice moved to set aside the entry of default. Grasshopper did not challenge service of process in either motion and in fact acknowledged in both motions that it was served on March 6, 2024.  The superior court denied the motions.

Grasshopper argued improper service for the first time in a February 2025 motion for reconsideration. The superior court granted it as a Rule 60 motion, vacating the default judgment on the grounds that service was insufficient and could not be waived.

McMahan then special actioned to the Arizona Court of Appeals, which accepted jurisdiction. It held that Grasshopper waived its objection to service of process in two ways:

    1. Failure to Timely Assert the Defense In A Responsive Pleading: Grasshopper did not raise the defense of insufficient service in a Rule 12(b)(5) motion or in its answer. The court emphasized that Rule 12 is designed to ensure early resolution of such defenses. By failing to assert it when it had all the necessary facts, Grasshopper waived the argument.
    2. Litigation Conduct: Parties can waive objections to the sufficiency of service of process by their litigation conduct. Here, Grasshopper repeatedly acknowledged in its motions that it had been served and actively litigated the case. These actions were inconsistent with preserving a jurisdictional objection and constituted waiver under Arizona law and persuasive federal precedent.

The Court also rejected Grasshopper’s argument that service could be waived only through a written waiver under Rule 4.2(d) because such a rule would undermine the purpose of Rule 12 and judicial efficiency.

Thus, the Arizona Court of Appeals vacated the superior court’s order granting Rule 60 relief and reinstated the default judgment against Grasshopper. This opinion reinforces the principle that procedural defenses must be timely asserted and that litigation conduct can waive objections to service of process.

Justin Ackerman  represents clients in federal and state appellate matters in cases involving excessive force, wrongful death, personal injury, bad faith, and premises liability. After graduating as the valedictorian of his class from Phoenix School of Law, Justin worked as a law clerk for the Hon. Michael J. Brown in Division One of the Arizona Court of Appeals. Following his clerkship, Justin has handled over 75 appeals, successfully arguing before the Arizona Court of Appeals, Arizona Supreme Court, and U.S. Court of Appeals for the Ninth Circuit.  Justin has spoken at many seminars on appellate preservation topics and is recognized as a Southwest Super Lawyers and Best Lawyers in the area of Appellate Practice.

jackerman@jshfirm.com | 602.263.4552 | jshfirm.com/jackerman

Brett Silverstein is a new addition to our JSH Appellate Team, where he will work on both appeals and dispositive motions across our practice groups. Brett most recently served for two years as a Judicial Law Clerk at the Arizona Court of Appeals, first for Judges James B. Morse Jr. and Jennifer M. Perkins and then for Chief Judge Randall M. Howe, following his term as a Constitutional Law Fellow with the Pacific Legal Foundation in Washington, D.C. During his time at Georgetown University Law Center, where he earned his J.D., Brett was the Senior Notes Editor for the Georgetown Journal of International Law. He earned his B.A. (cum laude, History and Classics) from Columbia University, and he spent a semester abroad at the Universidad Autónoma de Madrid in Spain.

bsilverstein@jshfirm.com | 602.263.4468