Opinion
15-P-959
03-31-2016
DWAYNE M. CRUTHIRD v. THOMAS GERMANY & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals a judgment dismissing without prejudice his complaint based on his failure to effect service in the manner ordered by a judge of the Superior Court. We affirm.
The plaintiff filed his complaint in the nature of certiorari on December 8, 2014, when he was within the custody of the Department of Correction (DOC). The defendants are DOC employees alleged to have been involved in one or more classification decisions involving the plaintiff. Shortly after the filing of the complaint, the plaintiff filed an affidavit of indigency. On January 13, 2015, acting pursuant to Superior Court Standing Order 92-1, a judge ordered the plaintiff to make service on each named defendant by "regular mail" at his expense. That judge also ordered that the return of service be made to the clerk's office and that a copy of the complaint be sent to the DOC. On January 15, 2015, the plaintiff filed an ex parte motion for leave to effect service of the complaint by "in-house" mail. That motion was denied on January 23, 2015. Despite the denial of his motion, the plaintiff "served" the complaint "by regular institutional mail." On March 16, 2015, the defendants moved to dismiss, arguing that service had not been properly effectuated because the plaintiff used the internal mail service at the correctional facility rather than "regular mail" as the first judge had ordered. A second judge agreed and, on that basis, dismissed the complaint.
The complaint is not included in the record; therefore, we are relying on the parties' representations in their briefs as to the allegations of the original complaint.
The order also required the defendant to purchase summonses from the clerk's office at the cost of five dollars each, and determined that the plaintiff had the ability to pay a fifty-dollar filing fee.
The defendant does not challenge the fact that the first judge ordered that the complaint be served by regular mail and that he instead used the internal institutional mail system. He argues, however, that the defendants were, as a practical matter, "served" with the complaint (albeit by a means not allowed by the court) and that fairness and practicality should require no more. Although the defendant's argument is not without some logic, it does not address the question before us, which is whether the second judge erred in concluding that the defendant had failed to show good cause for his failure to comply with the order specifying the manner by which service was to be made.
Rule 4(j) of the Massachusetts Rules of Civil Procedure, as appearing in 402 Mass. 1401 (1988), requires that an action be dismissed without prejudice where the plaintiff cannot show good cause why service was not properly and timely made. Here, there is no dispute that the plaintiff did not serve the complaint by regular mail as ordered within ninety days of filing his complaint. See Mass.R.Civ.P. 4(j). It was accordingly his burden to show good cause why he failed to do so. Commissioner of Rev, v. Carrigan, 45 Mass. App. Ct. 309, 311 (1998). Good cause is "'a stringent standard requiring diligen[t]' albeit unsuccessful effort to complete service within the period prescribed by the rule." Shuman v. Stanley Works, 30 Mass. App. Ct. 951, 952-953 (1991), quoting from Davis-Wilson v. Hilton Hotels Corp., 106 F.R.D. 505, 509 (E.D. La. 1985).
"If a service of the summons and complaint is not made upon a defendant within 90 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice" (emphasis supplied).
Here, the plaintiff failed to show good cause for his failure to comply with the manner of service ordered by the first judge. The order was in no way particularly onerous; it required only that the plaintiff use regular postal mail. The plaintiff provided no reason why he could not comply with that order. He did not have the right to choose unilaterally a different manner of service without first obtaining leave of court which, in this case, was denied. In these circumstances, dismissal without prejudice was required under rule 4(j).
Judgment affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 31, 2016.