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Date: 07-16-2021
Case Style:
Case Number: 1:21-cv-10490-ADB
Judge: Allison D. Burroughs
Court: United States District Court for the District of Massachusetts (Suffolk County)
Plaintiff's Attorney:
Defendant's Attorney: Sean F. McDonough and Christopher J. Grimaldi
Description: Boston, MA: Personal injury lawyer represented Plaintiff, who sued Defendant on a negligence theory claiming to have suffered more than $75,000 in damages and/or injuries as a direct result of a an accident caused by Defendant’s failure to exercise due care.
Generally speaking all negligence cases have the same three elements: (1) failure to exercise due care, (2) injury as a direct result of the failure to exercise due care, and a direct casual relationship between the failure to exercise due care and the claimed injuries and/or damages.
The defenses usually asserted by defendants are no negligence, no damages, claimed injuries existed before the claimed event and/or contributory or comparative negligence.
Outcome: 07/16/2021 14 Judge Allison D. Burroughs: ELECTRONIC ORDER entered.
Plaintiff Rachel Simms initiated this personal injury suit against Defendant Target Corporation ("Target") on December 4, 2020 in Norfolk County Superior Court. [ECF No. 1 -1]. On January 14, 2021, a Deputy Sheriff in the Norfolk County Sheriff's Office, acting on Ms. Simms' behalf, personally delivered the summons and complaint to Duillerno Diaz, a manager at Target's store in Stoughton, Massachusetts. [ECF No. 7 -3 at 3]. On March 23, 2021, Target removed the action to this Court. [ECF No. 1 ]. After answering on April 1, 2021, [ECF No. 4 ], Target filed the instant motion to dismiss for failure to effect proper and timely service, [ECF No. 6 ]. Ms. Simms opposes dismissal and asks the Court to issue a new summons and extend the ninety-day service window. [ECF No. 9 ]. For the reasons set forth below, Target's motion, [ECF No. 6 ], is GRANTED, and Ms. Simms' complaint is DISMISSED without prejudice.
As an initial matter, the Court finds that Ms. Simms has not, to date, properly served Target. "[S]tate law governs the service of process prior to removal to the district court." Osborne v. Sandoz Nutrition Corp., No. 95-1278, 1995 WL 597215, at *1 (1st Cir. Oct. 6, 1995) (per curiam). Accordingly, the Court must determine whether service was proper under the same rubric the state court would have used. Id. at *2. To serve a corporation like Target, Ms. Simms was required to deliver the summons and complaint to (1) an officer, (2) a managing or general agent, (3) a person in charge of the business at Target's principal place of business in Massachusetts, or (4) another agent authorized by appointment or law to receive service of process. Mass. R. Civ. P. 4(d)(2). It is Ms. Simms' burden to demonstrate that she made valid service, Wasser v. PricewaterHouseCoopers, LLP, No. 02-P-01002, 2004 WL 225534, at *2 (Mass. App. Ct. Feb. 5, 2004), and she has failed to demonstrate that delivering the summons and complaint to Mr. Diaz, who appears to be a branch manager, satisfied the Massachusetts service rules. To the contrary, Ms. Simms seemingly concedes that she has not properly served Target, and instead asks the Court to allow her to cure the deficiency. See [ECF No. 9 at 2-3]. The Court, however, cannot do so. Under Massachusetts Rule of Civil Procedure 4(j), if the plaintiff does not serve the summons and complaint within ninety days of the filing of her complaint, the case must be dismissed without prejudice unless the plaintiff demonstrates "good cause" for her noncompliance. Mass. R. Civ. P. 4(j); see Commr of Revenue v. Carrigan, 698 N.E.2d 23, 26 (Mass. App. Ct. 1998) (noting that rule 4(j) is strictly construed); Pantos v. Zarozny, No. 14-P-01789, 2015 WL 3618188, at *2 (Mass. App. Ct. June 11, 2015) ("Dismissal is mandatory absent a showing of good cause."). Here, Ms. Simms has failed to meet her burden of showing "good cause." Shuman v. Stanley Works, 571 N.E.2d 633, 635 (Mass. App. Ct. 1991). In fact, Ms. Simms has offered no explanation as to why she did not properly serve Target within the ninety-day service window (or even why she has not served Target properly since then). Rather, she asserts that Target has had notice of her claim for a long time and will not be prejudiced if her noncompliance is excused. [ECF No. 9 at 1-3]. This is plainly insufficient. See Crossetti v. Cargill, Inc., No. 18-cv-30002, 2018 WL 2770130, at *4 (D. Mass. June 8, 2018) ("Good cause is a stringent standard.... In determining whether a plaintiff has sustained its burden of showing good cause, [t]he focus of the court's inquiry is the reasonableness and diligence of counsel's effort to effect service within the time required. Half hearted efforts by and inadvertence of counsel do not constitute good cause." (alteration in original) (citations and internal quotation marks omitted)), aff'd, 924 F.3d 1 (1st Cir. 2019). Ms. Simms' failure is particularly difficult to understand given that Target has a readily accessible registered service agent in Massachusetts (presumably established precisely for the purpose of accepting service on Target's behalf). See [ECF No. 7 at 3 (Target's representation regarding its registered agent); ECF No. 9 at 2 (Ms. Simms' statement that, if given an extension, she would serve Target through its registered agent)]. Thus, because Ms. Simms has failed to show "good cause" for failing to comply with the Massachusetts Rule of Civil Procedure 4(j)'s requirements, the Court must dismiss her case.
Ms. Simms seeks to invoke 28 U.S.C. § 1448 to avoid dismissal. According to her, under that statute, the Court can simply issue a new summons and restart the ninety-day service window. [ECF No. 9 at 2]. Ms. Simms' argument misses the mark. The First Circuit has held that § 1448 cannot be used to revive a case that was subject to dismissal in state court prior to removal. See Osborne, 1995 WL 597215, at *2. Because Ms. Simms filed her state court complaint on December 4, 2020, she had until March 4, 2021 to serve Target. Target removed the case on March 23, 2021. At that point, the case was already subject to dismissal under Massachusetts Rule of Civil Procedure 4(j). As such, Ms. Simms cannot use § 1448 to restart the service window even though the case was subsequently removed to federal court. See id.; Crossetti, 2018 WL 2770130, at *6.
The Crossetti case is particularly instructive. There, a man was killed in a work-related accident in Massachusetts, and his estate's representative brought a wrongful death suit in Massachusetts state court. Crossetti, 2018 WL 2770130, at *1. Shortly after Massachusetts Rule of Civil Procedure 4(j)'s ninety-day service window expired, the defendant removed the action to federal court and filed its motion to dismiss based on insufficient service of process. Id. at *2. The estate representative then filed a motion for an extension of time to complete service. Id. In an exhaustive and well-reasoned order, Magistrate Judge Robertson granted the defendant's motion and denied the estate representative's. Id. at *1. In so doing, she found, among other things, that: (1) the service did not comport with the Massachusetts Rules of Civil Procedure, (2) because the estate representative had failed to demonstrate "good cause," dismissal without prejudice was required, and (3) § 1448 did not compel a different result. Id. at *2-6. The First Circuit then affirmed the decision. See 924 F.3d at 2. Given the factual similarities between Crossetti and this case-and Magistrate Judge Robertson's thorough and thoughtful analysis-the Court sees no reason to reach a different outcome here.
Accordingly, for the reasons outlined above, Target's motion to dismiss, [ECF No. 6 ], is GRANTED, and Ms. Simmsu' complaint is DISMISSED without prejudice.
(McDonagh, Christina) (Entered: 07/16/2021)
07/16/2021 15 Judge Allison D. Burroughs: ORDER entered. ORDER DISMISSING CASE. (McDonagh, Christina) (Entered: 07/16/2021)
Plaintiff's Experts:
Defendant's Experts:
Comments: