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Date: 05-13-2019

Case Style:

Gina Crossetti v. Cargill, Inc.

Case Number: 18-1622

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Robert R. Herrick

Defendant's Attorney: Robert J. Gilbertson, Jenny Gassman-Pines, Caitlinrose H. Fisher, Jeffrey E. Poindexter, Elizabeth S. Zuckerman

Description:




Massachusetts Rule of Civil
Procedure 4(j) requires a plaintiff to effect service of process
within ninety days of filing suit. Mass. R. Civ. P. 4(j).
Massachusetts courts accord this deadline "the respect reserved
for a time bomb." Comm'r of Rev. v. Carrigan, 698 N.E.2d 23, 28
(Mass. App. Ct. 1998) (quoting Braxton v. United States, 817 F.2d
238, 241 (3d Cir. 1987)). The plaintiff in this removed diversity
suit failed to meet that deadline.
In a thoughtful opinion, the court granted the
defendant's motion to dismiss for insufficient timely service of
process. Crossetti v. Cargill, Inc., No. 3:18-CV-30002-KAR, 2018
WL 2770130, at *1 (D. Mass. June 8, 2018). The court also denied
the plaintiff's motion for an extension of time to perfect service
of process. Id. We affirm.
I.
We briefly describe the relevant background, taking the
complaint's allegations as true for these purposes. In November
2014, Robert Crossetti, Jr., died from work-related injuries
sustained from a machine owned and "superintende[d]" by Cargill,
Inc. Gina Crossetti, as personal representative of Robert's
estate, sued Cargill in Massachusetts Superior Court on September
28, 2017, bringing claims for negligence and wrongful death. The
statutes of limitations on Crossetti's claims ran shortly
thereafter, on November 19, 2017. See Mass. Gen. Laws ch. 260,
- 3 -
§ 2A (three years for negligence); Mass. Gen. Laws ch. 229, § 2
(same for wrongful death).
Cargill maintains a registered agent to accept service
of process in Massachusetts, but Crossetti served Cargill with
process by mail. See Mass. R. Civ. P. 4(e)(3). On November 29,
2017, Crossetti mailed a certified letter to "Cargill
Incorporated" in which she enclosed a copy of the summons,
complaint, civil action cover sheet, and scheduling order. For
purposes of this appeal, it is not contested that this service of
process was invalid because "Massachusetts law requires that, in
the case of a corporation, service be made on 'the president,
treasurer, clerk, resident agent appointed pursuant to section 49
of chapter 156D, cashier, secretary, agent or other officer in
charge of its business, or, if no such officer is found . . . any
member of the corporation.'" Crossetti, 2018 WL 2770130, at *2
(quoting Mass. Gen. Laws ch. 223, § 37).
Cargill removed the action to federal court on January
2, 2018, and moved to dismiss based on insufficient service of
process a week later, on January 9, 2018. Also on January 9,
Crossetti filed a motion to extend the time to perfect service of
process. The court granted Cargill's motion to dismiss because
Crossetti had failed to properly serve Cargill with process within
ninety days of filing her complaint and had not shown good cause
- 4 -
to excuse that failure. Crossetti, 2018 WL 2770130, at *3-4
(applying Mass. R. Civ. P. 4(j)).
The court also denied Crossetti's motion to extend time
to perfect service of process under Massachusetts Rule 6(b). Id.
at *6. The relevant provision of that rule applies after a
deadline passes and allows for an enlargement of time when failure
to meet the deadline "was the result of excusable neglect." Mass.
R. Civ. P. 6(b)(2). The court concluded that, under Massachusetts
law, Rule 6(b) did not relieve Crossetti of her burden of showing
"good cause" under Rule 4(j). Crossetti, 2018 WL 2770130, at *6.
The court did not reach whether Crossetti had shown "excusable
neglect."
II.
"We review for abuse of discretion a dismissal for
insufficient service of process." Calderón Serra v. Banco
Santander P.R., 747 F.3d 1, 7 (1st Cir. 2014). Finding no such
abuse here, we affirm.
Rule 4(j) requires a plaintiff to effect service of
process within ninety days of filing. Mass. R. Civ. P. 4(j).
Failure to meet this deadline may be excused only for "good cause."
Id. "Good cause is 'a stringent standard requiring diligen[t]'
albeit unsuccessful effort to complete service within the period
prescribed by the rule." Carrigan, 698 N.E.2d at 26 (quoting
- 5 -
Shuman v. Stanley Works, 571 N.E.2d 633, 635 (Mass. App. Ct.
1991)).
Crossetti argues that Cargill had "evaded" service or
"concealed" the defect in service and that the court erred in
failing to recognize this as "good cause." As a matter of state
law, both arguments are meritless. Cargill did not evade service;
indeed, it maintained a registered agent in Massachusetts to
receive service, whom Crossetti chose not to utilize. See
Carrigan, 698 N.E.2d at 26 ("[W]e observe that the [plaintiff]
offers few facts to support [her] characterization of [the
defendant] as evading service . . . ."). And Cargill did not
conceal the defect in process, nor was Cargill under any duty to
notify Crossetti of the defect. Crossetti would have discovered
the defect had she read the relevant rule of Massachusetts
procedure. "Failure to read a rule is the antithesis of good
cause." Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996).
The court did not abuse its discretion in concluding that Crossetti
had not shown "good cause."
This also disposes of Crossetti's claim for an extension
of time under Rule 6(b)(2). Massachusetts case law clearly states
that the Rule 4(j) "good cause" standard applies when "a plaintiff
files a [Rule 6(b)(2)] motion to extend after expiration of the
original ninety-day period." Passatempo v. McMenimen, 960 N.E.2d
275, 293 n.30 (Mass. 2012); see Carrigan, 698 N.E.2d at 27 n.5.

Outcome: III.
We affirm.

Plaintiff's Experts:

Defendant's Experts:

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