Opinion
21-P-1126
10-14-2022
NELLIE SANINOCENCIO v. LUBIN & MEYER, P.C.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff, Nellie Saninocencio, appeals from the judgment dismissing without prejudice her complaint against the defendant, Lubin & Meyer, P.C. (L&M). On appeal, Saninocencio claims the motion judge abused his discretion in dismissing her complaint because her first attempt to serve L&M was on the last day of the ninety-day service period prescribed by Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988), and L&M intentionally evaded service and engaged in fraud. We affirm.
Discussion.
We review the allowance of a motion to dismiss de novo. See Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 614 (2019). Rule 4 (j) of the Massachusetts Rules of Civil Procedure states that the court must dismiss an action without prejudice if the plaintiff: (1) does not serve the summons and complaint upon a defendant within ninety days after filing, and (2) cannot show good cause for not making service within that period. See Mass. R. Civ. P. 4 (j) .
Saninocencio filed this lawsuit in Superior Court on October 20, 2020. She first attempted to serve L&M at 2:20 £.M-on the afternoon of January 20, 2021, the last day of the ninety-day service period. L&M's office was closed and its staff was working remotely due to the COVID-19 pandemic. The attempted service therefore failed. The next day, L&M moved to dismiss for lack of service. Following the denial of that motion for noncompliance with Rule 9A of the Rules of the Superior Court (2018), L&M filed a second motion to dismiss on February 25, 2021. Saninocencio did not move to enlarge the time for service, as permitted under Mass. R. Civ. P. 6 (b), 365 Mass. 747 (1974), until after the June 2021 hearing on that motion. The motion judge denied the motion to enlarge and granted L&M's motion to dismiss. The judge treated Saninocencio's subsequent "motion to vacate" the dismissal as a motion for reconsideration and denied it.
Saninocencio waived her appeal from the order denying her motion to vacate the dismissal.
Saninocencio claims the motion judge erroneously dismissed the case because she attempted service within ninety days and L&M turned the process server away. Rule 4 (j) requires a judge to dismiss an action if the plaintiff does not make service within ninety days and cannot show good cause for failing to do so. Mass. R. Civ. P. Rule 4 (j). Because Saninocencio tried but failed to serve L&M within the ninety-day period, the rule required the motion judge to dismiss the complaint unless Saninocencio could show good cause.
As the motion judge correctly noted, good cause for failure to make service is "a stringent standard" (citation omitted). Kennedy v. Beth Israel Deaconess Med. Ctr., Inc., 7 3 Mass.App.Ct. 459, 464 (2009). A plaintiff claiming good cause must show that she made a "diligent albeit unsuccessful effort to complete service within the period prescribed by the rule" (citation omitted) . I_d. at 464-465. Here, Saninocencio made a single attempt at service, just hours before the close of business on the ninetieth day and with no prior request to enlarge that time. The motion judge was well within his right to conclude this effort lacked diligence and did not amount to good cause.
Saninocencio could have moved to enlarge time even after the service period if she could show good cause. See Passatempo v. McMenimen, 461 Mass. 279, 301 n. 30 (2012) (after service period, plaintiff must show good cause for delay).
Saninocencio unsuccessfully attempts to distinguish this case from Shuman v. Stanley Works, 30 Mass.App.Ct. 951 (1991), which is directly on point with this case. In Shuman, we concluded no good cause existed where the plaintiff waited more than sixty-five days before attempting to locate an agent to accept service and only procured a process server with eight days remaining. See id. at 953. Saninocencio claims the motion judge should have considered that, in contrast to Shuman, she made timely arrangements for service with the Suffolk County sheriff's department. We disagree. Rule 4 (j) requires that service be made, not attempted, within ninety days. See Mass. R. Civ. P. Rule 4 (j). Moreover, in accordance with Shuman, a process server's failure to complete service does not by itself constitute good cause. See Shuman, supra. Here, the sheriff's deputy was unable to complete service because of L&M's office closure. But in the absence of other diligent efforts by Saninocencio and her attorney, the process server's incomplete service is immaterial. See id.
Saninocencio has provided little justification for the lack of diligence prior to the ninetieth day. In her brief, Saninocencio states that her attorney's attempt to familiarize himself with legal malpractice or to find alternate counsel caused the delay. However, her January 2021 opposition to L&M's motion to dismiss for lack of service indicated the delay occurred because Saninocencio was in Florida and her attorney was looking for alternate counsel because he was under investigation by bar counsel.
Saninocencio further claims that L&M evaded service. We have previously held that three failed attempts at service by certified mail did not amount to evasion even though each mailing was returned marked "unclaimed." Commissioner of Revenue v. Carrigan, 45 Mass.App.Ct. 309, 313 (1998) . In Shuman, we found no evasion where the defendant's corporate offices were out-of-state, and the company had no resident agent for service in Massachusetts. Shuman, 30 Mass.App.Ct. at 952-953. The defendants in those cases were less accessible than L&M, whose office was well known to Saninocencio and could have been approached at any time during the service period. The motion judge therefore properly found there was no evasion. See Carrigan, supra (no evasion where failure of service was due to "inadvertence of [plaintiff's] counsel and half-hearted efforts"). Because Saninocencio did not show good cause for failing to make service on L&M within the ninety-day service period, the motion judge did not abuse his discretion in dismissing the complaint.
The hearing transcript also directly contradicts Saninocencio's assertion that the motion judge denied her the opportunity to present evidence of evasion. In fact, the motion judge asked Saninocencio's counsel to present this evidence at least twice. The judge also explained that the burden was on Saninocencio to show that L&M's doors were locked for evasive reasons rather than because its employees were working remotely due to the COVID-19 pandemic.
The dismissal is affirmed without prejudice, as the motion judge originally ordered. We decline to affirm with prejudice, as L&M asks us to do. Saninocencio's request for sanctions and costs is denied.
Judgment of dismissal without prejudice affirmed.
The panelists are listed in order of seniority.