Opinion
Civil Action No. 05-40184-FDS.
January 12, 2007
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
This case represents an unfortunate, if easily-preventable, set of circumstances: a plaintiff who waited until the last minute to file a lawsuit and then failed to serve the complaint within the time period provided by law. Plaintiff Anita Crevier alleges that she was unlawfully discharged from her employment with the Town of Spencer on the basis of medical disability and in violation of the Family and Medical Leave Act. She was discharged in October 2002, and waited nearly three years, until October 2005, to file her complaint in this Court. She then failed to serve the complaint within 120 days, as required by Fed.R.Civ.P. 4(m).
Defendants the Town of Spencer, Carter Terenzini, and H. Warran Ramsey have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(5) for insufficiency of service of process. Defendants allege that service was attempted through Spencer Town Clerk Jean Mulhall 123 days after the filing of the complaint, in violation of the time limit set forth in Rule 4(m), and was otherwise improper as to defendants Terenzini and Ramsey. For the following reasons, the motion to dismiss will be granted in part and denied in part.
I. Background
According to the complaint, Crevier began working for the Town of Spencer Water Department in 1978 as an Administrative Clerk-Registrar. She was diagnosed with Crohn's disease, a chronic gastrointestinal disorder, in 1990. Until 1999, the Town and its Board of Selectmen made reasonable accommodations for her illness. A new Town Administrator, defendant Carter Terenzini, was appointed on June 28, 1999. The complaint alleges that soon thereafter, Terenzini and another supervisor, defendant Ramsey, began a pattern of discrimination based on her medical condition.
On October 16, 2002, Terenzini decided to terminate Crevier on the ground that she was unable to perform the essential functions of her job. She was offered a resignation agreement that would allow her to receive retirement benefits and maintain her health care coverage in exchange for waiving certain legal rights. She signed a resignation letter on October 30, 2002, stating she would not sign the agreement. She now contends that the reason given for her termination is pretextual and that the termination was actually based on her disability.
In April 2003, Crevier filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD"), alleging disability discrimination and Family and Medical Leave Act violations by defendants. On March 7, 2005, after pre-determination discovery had taken place, she withdrew her case from MCAD to pursue a private cause of action. She filed the present action with this Court on October 17, 2005.
The complaint alleges claims against three defendants: the Town of Spencer, Terenzini, and Ramsey. On February 16, 2006, 123 days after Crevier filed her complaint, a process server appeared at the home of Clerk Mulhall and served her by hand with the complaint and summons for all three defendants.
II. Analysis
Under the Federal Rules of Civil Procedure, a plaintiff is responsible for serving a summons and copy of the complaint upon all defendants. Fed.R.Civ.P. 4(c). Within a judicial district of the United States, service may be effected by delivering a copy of the summons and complaint: (1) to the defendant personally; (2) to the defendant's dwelling or usual place of abode; or (3) to an agent authorized by appointment or law. Fed.R.Civ.P. 4(e). Service may also be effected pursuant to the law of the state in which the district court is located. Id. The Massachusetts Rules of Civil Procedure, in relevant part, allow service upon a town to be made by delivering the summons and complaint to the town clerk. Mass. R. Civ. P. 4(d)(4).
Defendants do not dispute that the Town of Spencer could be served properly by delivery of the summons and complaint to Clerk Mulhall.
A plaintiff must serve the complaint within 120 days after it is filed. Fed.R.Civ.P. 4(m). If the plaintiff fails to do so, the court "shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." Id. The Advisory Committee's notes on the 1993 amendments to Rule 4(m) state as follows:
The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown. . . . Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.
Defendants contend that (1) service of process on all defendants was not made within 120 days, without good cause shown, and (2) in any event, service of process as to defendants Terenzini and Ramsey was never properly made. Plaintiff contends in response that (1) service was timely because three days should be added to the prescribed period for service of process under Fed.R.Civ.P. 6(e), and (2) any delay in service was excusable under the circumstances and that therefore a three-day extension should be granted under Fed.R.Civ.P. 6(b)(2). Plaintiff does not address the issue of service on the individual defendants, which the Court will consider first.
A. Service on the Individual Defendants
As a threshold matter, there is no evidence that defendants Terenzini and Ramsey have ever been properly served. The only attempted service on the individuals was made when Clerk Mulhall was served on February 16, 2006. The individual defendants were not served personally or at their dwellings or usual places of abode. See Fed.R.Civ.P. 4(e). There is no evidence that Clerk Mulhall is authorized by appointment or law to receive service for town employees. See id. Furthermore, the Court is not aware of any Massachusetts statute or rule that would allow such service. See id.
The attempt to serve Terenzini and Ramsey on February 16, 2006, was therefore ineffective, without regard to the 120-day window provided by Rule 4(m). Accordingly, the claims against Terenzini and Ramsey will be dismissed without prejudice. B. Service on the Town 1. Whether Rule 6(e) Is Applicable
As noted, the Town was served 123 days after the filing of the complaint. Plaintiff contends that she is entitled to a three-day extension of the 120-day service window pursuant to Fed.R.Civ.P. 6(e). Rule 6(e) provides as follows:
Whenever a party must or may act within a prescribed period after service and service is made under Rule 5(b)(2)(B), (C), or (D), 3 days are added after the prescribed period would otherwise expire under [Rule 6(a)].
Plaintiff's argument fails on at least two grounds.
First, Rule 6(e) allows for an extension "[w]henever a party must or may act within a prescribed period after service." (emphasis added). This language obviously suggests that such an extension applies only where parties are responding to a served document, and not to the service of the document itself.
Second, Rule 6(e) by its terms applies only to service made under Fed.R.Civ.P. 5(b)(2)(B), (C), and (D). Id. Rule 5(b) establishes the manner in which service of a pleading under Rule 5(a) is made. Fed.R.Civ.P. 5(b). In relevant part, Rule 5(a) requires service of "every pleading subsequent to the original complaint." Fed.R.Civ.P. 5(a). Plaintiff contends that the charge filed with MCAD was either the original complaint or a "pleading prior to the original complaint," and therefore Rule 5(a) (and the Rule 6(e) extension) is applicable to her current, "subsequent" complaint. The MCAD filing, however, was not filed in this Court, and is not a "pleading" as defined by Fed.R.Civ.P. 7. The "original complaint" under Rule 5(a) is the complaint filed with the court that commences a civil action. See Fed.R.Civ.P. 3. The "original complaint" here was the document filed on October 17, 2005, and which plaintiff attempted to serve upon defendants 123 days later. Rule 6(e) is therefore inapplicable.
2. Whether Rule 6(b) Is Applicable
Plaintiff further contends that her opposition to the motion to dismiss should be treated as a motion for a three-day enlargement of the window for service under Fed.R.Civ.P. 6(b)(2). Rule 6(b)(2) provides as follows:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion . . . (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . .
Thus, if a party moves for enlargement after the time period has expired, the court may only grant it where the delay was a result of "excusable neglect." Id.
The Supreme Court has outlined four factors to consider when determining whether neglect is excusable: (1) danger of prejudice to the opposing party; (2) length of delay and its potential impact on judicial proceedings; (3) reason for the delay, including whether it was within the reasonable control of the moving party; and (4) whether the moving party acted in good faith. See Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). In the First Circuit, these factors are not weighted equally. Hospital del Maestro v. National Labor Relations Bd., 263 F.3d 173, 175 (1st Cir. 2001). In Hospital del Maestro, the court found that the delay was short (one day), there was little danger of prejudice to the opposing party, and that the plaintiff acted in good faith. Id. The court then stated:
The Pioneer analysis focused on the term "excusable neglect" as used in Federal Rules of Bankruptcy Procedure 9006(b)(1), though the Court states that 9006(b)(1) is based upon Federal Rules of Civil Procedure 6(b). Pioneer Inv. Serv. Co., 507 U.S. at 391.
The four Pioneer factors do not carry equal weight; the excuse given for the late filing must have the greatest import. While prejudice, length of delay, and good faith might have more relevance in a closer case, the reason-for-delay factor will always be critical to the inquiry. . . . At the end of the day, the focus must be upon the nature of the neglect.Id. (citing Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000)).
Here, plaintiff has supplied the Court with no reason why service was not at least attempted within the 120-day window of Rule 4(m), much less why that delay was "excusable." Absent any evidence favorable to plaintiff with regard to the other Pioneer factors, the Court cannot find that the delay was a result of "excusable neglect." An enlargement of time under Rule 6(b) therefore cannot be granted under the rule.
3. Whether an Extension Should Be Granted under Rule 4(m)
Finally, the Court must consider whether an extension of time is appropriate under Fed.R.Civ.P. 4(m). As noted, Rule 4(m) provides that, even in the absence of good cause shown, the Court may "direct that service be effected within a specified period of time." No showing of good cause has been made here; the only issue is whether the Court should grant relief because the applicable statute of limitations would bar the action if refiled. Although plaintiff has not raised the statute of limitations issue, it appears that the limitations period has expired on all of her claims.
It is unclear whether the federal or state tolling rules apply to plaintiff's claims. See West v. Conrail, 481 U.S. 35, 40 n. 6 (1987). Under the federal rules, tolling begins upon filing the action if the service requirements under Fed.R.Civ.P. 4(m) are met within 120 days. 4B CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE ("WRIGHT MILLER"), § 1137 at 397 (2002). In Massachusetts, tolling begins upon filing of the action as long as service is made within a "reasonably short time thereafter." Hoch v. Gavan, 520 N.E.2d 1319, 1321 n. 4 (Mass.App.Ct. 1988); see Heacock v. Heacock, 568 N.E.2d 621, 622 (Mass.App.Ct. 1991). This Court need not reach the issue of which set of rules applies, as under both, the statute of limitations on Crevier's claims appears to have run.
A similar situation arose in McIsaac v. Ford, 193 F. Supp. 2d 382 (D. Mass. 2002). There, plaintiff McIsaac failed to obtain same-day service on the 120th day after filing his complaint. Id. at 383. Defendants were eventually served a few days later after the Rule 4(m) time limit had expired. Id. As in this case, the statute of limitations had run on McIsaac's claims by the time the court ruled on the sufficiency of service of process. Id. at 382 n. 1. Specifically noting the Advisory Committee's notes on Rule 4(m) regarding extension of the 120-day service window when the statute of limitations has run, Judge Stearns allowed defendants' motion to dismiss. Id. at 384. "[T]his exceptional relief [extension of the service window absent good cause] is appropriate only in circumstances where an extension of time is sought prior to the expiration of Rule 4(m)'s deadline, or where a pro se litigant can show confusion on his part, either because of his unfamiliarity with the rules, or because of his reliance on the misleading advice of others." Id.
McIsaac was denied an extension notwithstanding his pro se status. McIsaac, 193 F. Supp. 2d at 383 (citing 4B WRIGHT MILLER, § 1137 at 342 (2002)).
The conclusion of McIsaac has substantial superficial appeal. Crevier did not seek an extension prior to the Rule 4(m) deadline and has been represented by counsel since the filing of her complaint. Nonetheless, the McIsaac decision appears to run counter to the language of the Advisory Committee notes to the 1993 amendment to Rule 4(m), which specifically states that the court may relieve a plaintiff of the consequences of her own failure to serve the complaint, "even if there is no good cause shown," where "the applicable statute of limitations would bar the refiled action."
The Court accordingly concludes that although Rule 4(m) does not require that plaintiff be granted relief, the Court has the discretion to do so. Because the delay in serving the Town was relatively short (three days), there is little danger of prejudice to the defendant, and the consequence to plaintiff is severe, the Court will relieve plaintiff of the consequences of her inexcusable neglect — albeit with some misgivings. Plaintiff will therefore be deemed to have timely served the Town of Spencer. III. Conclusion
Defendant the Town of Spencer shall answer or otherwise respond to the complaint within 20 days of the date of this order.
For the foregoing reasons, defendants' motion to dismiss is GRANTED as to defendants Terenzini and Ramsey and DENIED as to the Town of Spencer. The dismissal of the claims as to defendants Terenzini and Ramsey shall be without prejudice. Plaintiff's motion for enlargement under Federal Rules of Civil Procedure 6(b) is DENIED.