UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1004
EDWARD H. BENJAMIN,
Plaintiff, Appellant,
v.
ALLEN H. GROSNICK,
Defendant, Appellee.
No. 93-1005
PETER J. EMBRIANO
Plaintiff, Appellant,
v.
ALLEN H. GROSNICK,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
Before
Torruella, Circuit Judge,
Feinberg,* Senior Circuit Judge,
and Boudin, Circuit Judge.
* Of the Second Circuit, sitting by designation.
C. Brian McDonald, with whom Ronald P. Weiss, Gerald P.
Ciejka and Bulkley, Richardson and Gelinas, were on brief for
appellants.
Robert Aronson, with whom Law Offices of Robert Aronson, was
on brief for appellee.
July 20, 1993
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TORRUELLA, Circuit Judge. In companion cases,
appellants, Edward Benjamin, M.D. and Peter Embriano, M.D., sued
appellee Allen Grosnick for deceit, fraud, negligent
misrepresentation, breach of fiduciary duty, and violations of
state and federal securities law. The district court dismissed
the claims on the ground that appellants failed to properly serve
pleadings upon appellee within the required one hundred twenty
days of filing suit. We affirm the district court's judgment
with respect to Benjamin and reverse it with respect to Embriano.
BACKGROUND
Appellants filed complaints against appellee on
September 14, 1990. Twelve days later, Deputy Sheriff Paul
Bianconi executed returns of service swearing that he personally
served appellee at 167 Dwight Street, Longmeadow, Massachusetts
with both sets of pleadings. After procuring an extension,
appellee answered alleging improper service of process in both
cases and insufficient process in Benjamin's case. On the same
day, appellee also filed a third party complaint and began
discovery. Six weeks later, the court approved an agreement by
the parties to stay the proceedings for reasons irrelevant to
this appeal.
Eventually, the stay ended, and a scheduling conference
was held at which appellee made a vague assertion that
appellants' service failed to comply with Rule 4 of the Federal
Rules of Civil Procedure.1 At that time, he also asserted that
1 See appendix for the text of Rule 4.
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process was insufficient in Benjamin's case because he was served
with the wrong complaint.2
On April 30, 1992, appellee moved to dismiss the
actions pursuant to Rule 4(j) of the Federal Rules of Civil
Procedure for untimely service. In support of the motions,
appellee submitted an affidavit claiming that, while the returns
of service indicated that personal service took place in
Massachusetts, he was not in Massachusetts on the alleged date of
service. At this point, it became clear that this was the basis
of the insufficient service defenses. In addition, appellee
reiterated in the affidavit that even if the method of service
sufficed, the process itself did not because Benjamin never
served him with the proper complaint. In opposition, appellants
submitted affidavits by the deputy sheriff stating that he had
personally served appellee on the record date. Appellants then
re-served appellee properly.
After an evidentiary hearing, the district court found
that appellee was in Arizona on the service date, and that
appellants therefore failed to personally serve him within the
120 day limit. Then, finding that appellants failed to show good
cause for the delayed service, the court dismissed the action
2 Appellee contends that while the summons properly cited the
without prejudice.3 The district court denied appellants'
appropriate case names, the complaint that the sheriff delivered
for Benjamin regarded an action by Benjamin against Richard K.
Bernstein and The Bernstein Group, Inc. in the United States
District Court for the District of Connecticut. While that
lawsuit concerned similar interests, the complaint for that
action did not name appellee as a defendant.
3 Although the court dismissed the claims without prejudice, the
statute of limitations bars the refiling of appellants' federal
statutory claims.
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request for reconsideration, and appellants filed this appeal.
DISCUSSION
Under Fed. R. Civ. P. 4(j), if a plaintiff fails to
properly serve a named defendant within 120 days after filing a
complaint, he must show "good cause why such service was not made
within that period" or face dismissal.4 We review a district
court's determination of whether a plaintiff established good
cause only for abuse of discretion. United States v. Ayer, 857
F.2d 881, 884-85 (1st Cir. 1988).
With respect to appellants' alleged insufficient
service, we find the district court's dismissal an abuse of
discretion. Appellants did not purposely delay personal service.
Indeed, they completed all of the steps within their power
necessary to effectuate such service. The blame for the error
rested with the deputy sheriff. Moreover, because of the deputy
sheriff's sworn representations in the return of service,
appellants reasonably believed that they had personally served
appellees.
Furthermore, although appellee's answers to appellants'
complaints alleged insufficient service, appellee waited more
4 Rule 4(j) provides in relevant part:
If a service of the summons is not made
upon a defendant within 120 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 . . . .
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than 120 days to notify appellants of the defect's specific
nature. Given the general nature of appellee's asserted defense
and the deputy sheriff's assurance in the return of service that
he had personally served appellee, appellants reasonably
abstained from further investigation.
Still further, the defective service did not prejudice
appellee. See Ayer, 857 F.2d at 881 (considering prejudice to
defendant in Rule 4(j) determination). Appellee had actual
notice of the lawsuit and secured through stipulation additional
time to file an answer. Conversely, dismissal will prejudice
appellants because the statute of limitations has already run on
their federal statutory claims. See Floyd v. United States, 900
F.2d 1045, 1046 (7th Cir. 1990) (considering prejudice to
plaintiff in Rule 4(j) determination).
Given all of the above factors, we conclude that
appellants showed good cause for the delayed personal service.
In its finding to the contrary, the district court erroneously
relied on Roque v. United States, 857 F.2d 20, 22 (1st Cir.
1988),5 which held that:
[G]iven the [defendant's] answer which
did not clearly allege insufficient
service of process, the government's
failure plainly to assert insufficiency
until after the 120 days had run, the
confusion caused by the district court's
5 Although a district court's good cause finding is entitled to
great deference, such a finding "'predicated upon, or induced by,
a misapprehension of law is robbed of its customary vitality.'"
Reliance Steel Products v. National Fire Ins. Co., 880 F.2d 575,
577 (1st Cir. 1989) (quoting RCI Northeast Services Div. v.
Boston Edison Co., 822 F.2d 199, 203 (1st Cir. 1987)).
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initial denial of the government's
motion, the simple manner in which the
service deficiency can be cured, and the
absence of any articulable prejudice to
the [defendant], we think the district
court should have found good cause.
(emphasis added). By implication, the district court found that
where a defendant clearly alleges insufficient service within the
120 day limit, the plaintiff is on notice of some defect, and
therefore must inquire into the nature of that defect. We agree
with the district court that under certain circumstances, the
assertion in an answer of insufficient service of process will
provide notice that would induce a reasonable plaintiff to
investigate the possibility of a deficiency. In addition, there
is no requirement that a defendant specify the source of the
defect in the service. However, the lack of such specificity
bears on the reasonableness of the plaintiff's actions. In the
present case, Grosnick did not specify the source of the defect
until it was too late for appellants to cure it. Where as here,
appellants, relying on an attested to return of service by the
deputy sheriff, believed that they had properly effected service,
and indeed did everything in their power to do so, Roque does not
imply that failure to investigate after a general assertion of
insufficient service prevents a finding of good cause. We
therefore reverse the court's judgment with respect to
appellants' delay of personal service.
On the other hand, we cannot easily forgive Benjamin's
alleged service of insufficient process. Although the district
court requested a statement of contested facts, Benjamin never
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disputed appellee's allegation that he was served with the wrong
complaint. Indeed, although appellee mentioned the problem
numerous times on the record, and again on appeal, Benjamin has
yet to acknowledge it. Accordingly, we accept the allegation as
true.
Also because of Benjamin's failure to acknowledge the
allegation, we cannot possibly conclude that he has met his
burden of establishing good cause why service of the proper
complaint was delayed. We do not know with whom the error
originated, when Benjamin knew about it, or even whether the
deficiency was intentional. By ignoring these major gaps in the
procedural history, and indeed the entire issue, Benjamin failed
to establish good cause for the delayed service of sufficient
process. Thus, we affirm the district court's dismissal of
Benjamin's case on different grounds than the court stated.
Affirmed in part; reversed in part.
Appendix can be found attached to the slip opinion.
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Benjamin v. Grosnick
Combined Opinion