Blair v. City of Worcester

United States Court of Appeals
For the First Circuit

Nos. 06-1626, 07-1258

BRANDON S. BLAIR et al.,

Plaintiffs, Appellants,

v.

CITY OF WORCESTER et al.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Boudin, Chief Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.

Michael L. Altman with whom Altman Riley Esher LLP was on
brief for appellants.
Andrew J. Cambaccini with whom Reardon, Joyce & Akerson, P.C.,
and Janet J. McGuiggan, City of Worcester Law Department, were on
brief for appellees.

April 8, 2008
 STAHL, Senior Circuit Judge. Plaintiffs-appellants

Brandon S. Blair and Richard N. Tousignant ("plaintiffs") appeal

the district court's dismissal of two separate actions in favor of

defendants City of Worcester, Massachusetts ("City"), former

Worcester Chief of Police James Gallagher, and Worcester Police

Officers Daniel Dowd, Thomas Dowd, Thomas C. Duffy, Falcone1,

Edward McGinn, James Moore, Jose Ortiz, Jonathan Thomas, and Peter

Towler (collectively, "defendants").2 The plaintiffs, in separate

complaints that were later consolidated, alleged that they were

attacked and beaten by Worcester police officers, for which they

sought recovery against the defendants under myriad legal theories.

In an initial action, the district court granted the defendants'

motions to dismiss, without prejudice, for failure to perfect

service of process. After the plaintiffs refiled their claims in

a second action, the district court granted the defendant officers'

motions to dismiss for failure to state a claim, holding that the

matter was time-barred. We affirm in part, reverse in part, and

remand for further proceedings.

I. BACKGROUND

1
The first name of Officer Falcone is unclear.
2
We note that the City of Worcester, Chief Gallagher, and
Officer Thomas were not named in the second action. Moreover, the
plaintiffs voluntarily dismissed Falcone from the second action on
August 29, 2006. Finally, the plaintiffs have abandoned their
claims with respect to Chief Gallagher and the City. Where these
distinctions matter, we refer to the remaining defendants as the
"defendant officers."

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 The record facts of this case, at least those relevant to

the instant appeal, are not in material dispute. On December 22,

2001, the plaintiffs were involved in an altercation with several

of the defendant officers. As a result of this incident, criminal

charges were brought against the plaintiffs. At the conclusion of

a jury trial, both plaintiffs were acquitted. Shortly thereafter,

on August 16, 2002, the plaintiffs, represented by W. Theodore

Harris, filed separate complaints3 in federal district court,

alleging various claims based on their purported mistreatment at

the hands of the defendants. On September 5, 2002, Donald Rider,

an attorney for the City, notified Chief Gallagher and Officers

Daniel Dowd, Thomas Dowd, Duffy, Patricia Falcone,4 McGinn, Moore,

Ortiz, Thomas, and Towler that two civil rights lawsuits were

pending against them in federal district court; indicated that he

would handle the lawsuits; and requested that they inform him if

served with process. The record does not reveal how Rider learned

of the lawsuits, although the plaintiffs introduced as evidence a

copy of a newspaper article, dated August 29, 2002, describing the

3
Blair and Tousignant filed separate but nearly-identical
complaints and amended complaints in the initial action. Although
the district court and the parties exclusively referred to each set
of complaints in the singular, we use the proper forms to ensure
clarity, as the cases were not consolidated until a later juncture.
4
Rider sent this email to a recipient identified as "Patricia
Falcone," not the "Thomas Falcone" named in the plaintiffs' second
action. It is undisputed, however, that "Falcone," whether
Patricia or Thomas, was never served.

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action, which might have been the source of his knowledge.

Subsequently, on November 25, 2002, Deputy Sheriff Ronald E.

Richard attempted service upon Officers Daniel Dowd, Thomas Dowd,

Duffy, McGinn, Moore, Ortiz, and Towler by leaving copies of the

summonses and the original complaints with an individual named

Katherine McNamara, a "Principal Clerk" at the police department.

These returns of service were filed with the district court on

December 2, 2002. No returns of service were filed for the City,

Chief Gallagher, Officer Thomas, or Officer Falcone.

On January 8, 2004, 402 days after the plaintiffs' last

action in the case, the district court mailed to Harris a Notice

indicating that because the case had been inactive more than one

year, it would be dismissed in thirty days pursuant to Local Rule

41.1 unless the plaintiffs took appropriate action. Blair and

Tousignant learned of the Notice, which was entered on the docket,

and chose to retain different counsel. On February 6, 2004,

attorney Stephen CampoBasso filed an appearance on behalf of the

plaintiffs and submitted motions requesting that the cases not be

dismissed, which were granted. Harris withdrew as counsel of

record on March 22, 2004, and he was subsequently suspended from

the practice of law for a period of eighteen months for reasons

that are not apparent on the face of the record.

On April 30, 2004, CampoBasso filed amended complaints on

the plaintiffs' behalf. On June 8, 2004, CampoBasso obtained a

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summons for Chief Gallagher, which was then served, via a purported

agent named Jennifer Tauper, and a return of service was

subsequently filed with the court on July 8, 2004. The record

discloses that, on August 4, 2004, CampoBasso sent a letter to

Attorney Rider, to which copies of a summons and an amended

complaint were apparently appended, in the apparent expectation

that Rider would assist in "service of the Summons" and then return

it to him. No copy of the attachment is in the record. On

November 16, 2004, CampoBasso sent follow-up correspondence,

apparently due to his concern regarding Rider's silence. On

December 14, 2004, CampoBasso directed yet another letter to Rider,

requesting his "assistance in getting the Summonses5 filed with the

Court." He mentioned that his clients were growing "uneasy"

regarding the lack of activity in the case. Unfortunately, the

record does not explicate which defendant or defendants CampoBasso

sought to serve in this manner. Regardless, CampoBasso's efforts,

which might have been an attempt to obtain waiver of personal

service under Rule 4(d), were apparently fruitless--and, in any

event, the plaintiffs do not rely on this set of correspondence in

any of their claims of error.

5
CampoBasso's correspondence does not clearly indicate whether
his query referred to only one or multiple summonses. CampoBasso
seems to have used the singular and plural form of "summons"
interchangeably.

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 CampoBasso took no further record action in the case and

committed suicide in February 2005. On April 14, 2005, Jo Ann

Citron and Michael Altman appeared on behalf of the plaintiffs as

the third set of counsel of record. Proceeding expeditiously

thereafter, on April 26, 2005, the plaintiffs filed a motion for

default judgment against the defendants. In response, the

defendants moved to dismiss the plaintiffs' claims, arguing that

the plaintiffs had failed to effect personal service of process

upon them. The defendants attached an affidavit from McNamara

stating that she was not authorized to accept service for the

defendant officers. Likewise, Officer Thomas Dowd submitted an

affidavit indicating that he had not appointed McNamara as his

agent for receiving service of process.

In response, the plaintiffs offered evidence purporting

to show that McNamara had actual and apparent authority to accept

process on behalf of the defendant officers, requested leave to

conduct additional discovery to prove this agency relationship, and

argued that even if no agency relationship existed, the district

court should extend the time to serve the defendants. On March 13,

2006, the district court issued an opinion denying the plaintiffs

relief and granting the defendants' motions to dismiss, without

prejudice. The plaintiffs filed a timely Notice of Appeal on April

6, 2006, but subsequently requested and received a stay during the

pendency of the action described below.

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 On June 26, 2006, the plaintiffs initiated a new action

in federal district court, based on the same underlying conduct,

seeking similar relief as before, asserting that the Massachusetts

renewal statute revived their otherwise time-barred claims. The

district court, based on its construction of the renewal statute,

rejected the plaintiffs' contentions and dismissed the case.

Again, the plaintiffs appealed; the two appeals have since been

consolidated.

II. ANALYSIS

A. Effect of the Amended Complaints

The defendants argue that the filing of the April 30,

2004, amended complaints makes irrelevant any service of process,

whether effective or not, that was performed in this case in

relation to the original complaints. On the defendants' theory,

the amended complaint--by being filed , and whether or not properly

served--superseded the original complaint, and made it no longer

available as a basis for pursuing this case. Under Federal Rule of

Civil Procedure 5(a)(2), an amended complaint stating a new claim

must be served on defendants, such as those here, who have failed

to appear. The defendants argue that because the original

complaint was superseded and the amended complaint was never

served, dismissal of the suit for insufficient service of process

was proper.

-7-
 There are two flaws with the defendants' theory. First,

it is doubtful that the unserved amended complaint in fact

superseded the original complaint. See Anunciation v. W. Capital

Fin. Servs. Corp., 97 F.3d 1458 (table), 1996 WL 534049, at *2 (9th

Cir. Sept. 19, 1996) (unpublished); Int'l Controls Corp. v. Vesco,

556 F.2d 665, 669 (2d Cir. 1977). Second, the amended complaint

did not in fact contain a new claim for relief, and therefore did

not require service under Rule 5(a)(2). The defendants are correct

that the original complaint contained a Statement indicating that

either Count Nine or Count Ten--which, precisely, is ambiguous--was

subject to a presentment requirement, and that an amended complaint

would be filed in the future to actually urge the claim following

satisfaction of the presentment requirement.

Dismissal on this basis would exalt form over substance

because the original and amended complaints are substantively

identical. Rule 5(a)(2) ensures that a party, having been served,

is able make an informed decision not to answer a complaint without

fearing additional exposure to liability for claims raised only in

subsequent complaints that are never served. Here, we have no

doubt that the original complaints provided the defendants with

fair notice that the plaintiffs sought recovery on both Count Nine

and Count Ten. See Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 55

(1st Cir. 2006). It is not as if satisfaction of the presentment

requirement were somehow in doubt--the Statement revealed that

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notice of the claim had already been provided, and the silence of

the government agency is sufficient compliance with the statute.

See Mass. Gen. Laws ch. 258, § 4.

Moreover, the factual predicate for the plaintiffs'

claims did not change at all. See Ruiz-Rosa v. Rullan, 485 F.3d

150, 154 (1st Cir. 2007) (explaining that fair notice is provided

where a complaint explains "who did what to whom, when, where, and

why" (citations omitted)); Morales-Vallellanes v. Potter, 339 F.3d

9, 14 (1st Cir. 2003) (indicating that a complaint may

"sufficiently raise[] a claim even if it points to no legal theory

or . . . the wrong legal theory" (citation omitted)); DeNovellis v.

Shalala, 124 F.3d 298, 310 n.6 (1st Cir. 1997) (holding that a

complaint "need not clearly articulate the precise legal theories"

to provide fair notice). Thus, because the amended complaints did

not urge any new, substantive claims against any of the defendants,

additional service of process was not required.6 See Fed. R. Civ.

P. 5(a)(2); accord Gilles v. United States, 906 F.2d 1386, 1389

(10th Cir. 1990) (explaining that dismissal based on improper

service of an amended complaint is inappropriate so long as the

6
This conclusion is buttressed by the fact that Massachusetts
does not require plaintiffs to plead presentment. Vasys v. Metro.
Dist. Comm'n, 438 N.E.2d 836, 840 (Mass. 1982).

-9-
amended complaint "relates back" under Rule 15(c)7 to a prior,

properly served complaint).

B. Denial of Discovery and an Evidentiary Hearing

The district court dismissed the plaintiffs' original

action for insufficient service of process under Rule 12(b)(5) of

the Federal Rules of Civil Procedure. The plaintiffs do not argue

that the existing record substantiates that they provided adequate

service of process to any of the defendants. Rather, they contend

that the district court erred by denying their request for limited

discovery and an evidentiary hearing for the purpose of determining

whether McNamara was authorized to accept service of process for

the defendant officers. In relevant part, Rule 4(e)(2) of the

Federal Rules permits a plaintiff to effect service by "delivering

a copy of [the summons and complaint] to an agent authorized by

appointment or by law to receive service of process." Fed. R. Civ.

P. 4(e)(2)(C). This action was brought in a federal district court

located in Massachusetts, and service was attempted in

Massachusetts; therefore, the plaintiffs were also permitted to

serve the defendants in accordance with Massachusetts state law.

Fed. R. Civ. P. 4(e)(1). Massachusetts likewise allows a plaintiff

to effect service "[u]pon an individual by . . . delivering a copy

7
Under Rule 15(c)(1)(B), an amended complaint relates back to
a prior complaint where "the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out-
or attempted to be set out--in the original pleading."

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of the summons and of the complaint to an agent authorized by

appointment or by statute to receive service of process." Mass. R.

Civ. P. 4(d)(1). The district court declined the plaintiffs'

requests for discovery and an evidentiary hearing based on its

determination that they were merely "grasp[ing] at straws" without

any "realistic prospect" of success. Blair v. City of Worcester,

Nos. 02-40152-FDS, 02-40153-FDS, 2006 WL 1581582, at *6 (D. Mass.

Mar. 13, 2006).

A district court generally retains "broad discretion in

determining whether to grant jurisdictional8 discovery." United

States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 626 (1st Cir. 2001)

(citation omitted). Accordingly, "[t]he standard for reversing a

district court's decision to disallow jurisdictional discovery is

high." Id. To obtain relief, the aggrieved party must show that

"the lower court's discovery order was plainly wrong and resulted

in substantial prejudice." Id. (citation omitted).9

8
Several cases to which we cite technically pertain to
dismissal pursuant to Rule 12(b)(1) for lack of subject-matter
jurisdiction or Rule 12(b)(2) for lack of personal jurisdiction.
Nonetheless, these cases lend insight to our present inquiry. We
note that the parties and district court have cited such cases
interchangeably, as well.
9
As a preliminary matter, the plaintiffs argue that
application of the ordinary abuse of discretion standard is
inappropriate in this case. They reason that an erroneous legal
assumption underlying the district court's analysis of the returns
of service executed by Deputy Richard tainted its subsequent review
of all of the issues pertaining to this appeal. Thus, the
plaintiffs contend that de novo review is appropriate, given the
purported legal error. Because we reverse even under the abuse of

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 In contrast, the threshold showing that a plaintiff must

present to the district court to merit limited discovery is

relatively low. See Surpitski v. Hughes-Keenan Corp., 362 F.2d

254, 255-256 (1st Cir. 1966) (per curiam) (explaining that a party

should be allowed to conduct jurisdictional discovery when its

position is not frivolous); see generally Swiss Am. Bank, 274 F.3d

at 637 ("As a general matter, discovery . . . should be freely

permitted . . . ." (internal quotation marks omitted) (quoting

Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (D.C.

Cir. 1991))). Moreover, factual disputes regarding agency should

typically be resolved only after a live hearing, see Rivera-Lopez

v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992), in

order to explore issues of "credibility and resolve

. . . unanswered questions implicated by the parties' briefing."

Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 34, (1st Cir. 2008).

Indeed, we may find an abuse of discretion even where the lower

court's decision is "by no means wholly unsupported by the record."

Id. Thus, where a plaintiff can demonstrate the existence of a

plausible factual disagreement or ambiguity, our jurisprudence

favors permitting the litigants the opportunity to flesh out the

record. See id.

Here, the returns of service executed by Deputy Richard

state, in relevant part:

discretion standard, we need not resolve this question.

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 I hereby certify and return that on 11/25/2002
at 11:59 AM I served a true and attested copy
of the Summons, Complaint and Jury Demand in
this action in the following manner: To wit,
by delivering in hand to KATHERIN [sic]
MCNAMARA, agent, person in charge at the time
of service for [the defendant officer] at
WORCESTER POLICE DEPARTMENT, 9-11 LINCOLN SQ,
WORCESTER, MA.

As the defendants point out, the language of the returns seems

designed to indicate both service of an agent under Fed. R. Civ. P.

4(e)(2) and Mass. R. Civ. P. 4(d)(1), and service of a "person in

charge of [a] business" under Mass. R. Civ. P. 4(d)(2), which

provides one method for the service of corporations and

unincorporated associations. Quite obviously, Mass. R. Civ. P.

4(d)(2) is completely inapplicable to service of the defendant

officers in their individual capacities.

A return of service generally serves as prima facie

evidence that service was validly performed. See, e.g., O'Brien v.

R.J. O'Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993);

Curley v. Radow, No. 00-10956-GAO, 2007 WL 2060015, at *4-5 (D.

Mass. July 16, 2007); Johnson v. Witkowski, 573 N.E.2d 513, 524

(Mass. App. Ct. 1991). Whether or not this return of service

qualifies as such evidence, the defendants have adduced sufficient

rebuttal evidence to refute any presumption of valid service. In

an affidavit, McNamara stated that:

I have not been authorized or appointed by
Peter Towler, Thomas Dowd, Daniel Dowd, Thomas
C. Duffy, Edward McGinn, James Moore[,] or
Jose Ortiz to accept service of process on

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 their behalf for lawsuits in which they are
being sued, whether in their individual
capacity or their official capacity, and I was
not so authorized or appointed by them in
November 2002.

Thus, McNamara specifically denied being appointed an agent by any

of the defendant officers for whom returns of service were filed.

Additionally, Officer Thomas Dowd provided an affidavit denying

that he had "authorized any individual or entity to accept service

of process on my behalf."

Under Massachusetts law, an affidavit is sufficient to

refute the prima facie presumption created by a return of service.

See Konan v. Carroll, 638 N.E. 2d 936, 938 (Mass. App. Ct. 1994)

(citing Farley v. Sprague, 372 N.E.2d 1298, 1301-02 (Mass. 1978));

see also Maniscaclo v. Kenworthy, No. 03-P-626, 815 N.E.2d 656

(table), 2004 WL 2185422, at *3 (Mass. App. Ct. Sept. 28, 2004)

(per curiam) ("Where, as here, [the] affidavit is uncontradicted

other than by the deputy's return, the affidavit controls.").

Similarly, federal courts have held that an affidavit denying

agency, standing alone, may be sufficient to overcome the

presumption of proper service created by the return of service.

See Hornick v. S. & M. Trucking Co., 208 F. Supp. 950, 952 (M.D.

Pa. 1962); Metropolitan Theatre Co. v. Warner Bros. Pictures, 16

F.R.D. 391, 392-93 (S.D.N.Y. 1954); Puett Elec. Starting Gate Corp.

v. Thistle Down Co., 2 F.R.D. 550, 551 (N.D. Ohio 1942); see also

Elibee v. Leonard, 226 F. App'x 351, 356 (5th Cir. 2007) (per

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curiam) (unpublished) (holding averments of defendants sufficient

to refute agency relationship); Gottlieb v. Sandia Am. Corp., 452

F.2d 510, 514 n.5 (3rd Cir. 1971) (stating that "although a

marshal's return is not conclusive on the question of service on an

agent, it will stand in the absence of proof to the contrary").

Hence, the defendants effectively rebutted any

presumption that might have arisen from the returns of service

executed by Deputy Richard. At that point, the ultimate burden of

proving proper service returned to the plaintiffs. See Rivera-

Lopez, 979 F.2d at 887 (indicating "that, once challenged,

plaintiffs have the burden of proving proper service"). We

emphasize, however, that the real issue at hand is not whether the

plaintiffs proved service--but merely whether they adduced

sufficient evidence to warrant limited discovery and an evidentiary

hearing. See id.

The plaintiffs have mustered evidence--specifically, the

Second Affidavit of Theresa Labriola (one of their attorneys), a

document known as Worcester Police Policy and Procedure No. 351

("Policy No. 351"), and returns of service for Officers Daniel

Dowd, Thomas Dowd, Duffy, McGinn, Moore, Ortiz, and Towler in a

different case--to refute McNamara's and Officer Thomas Dowd's

affidavits. We examine each of these items in turn.

First, we address the Labriola affidavit. In the

affidavit, Labriola indicates that Deputy Richard informed her that

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he had served Worcester police officers "hundreds" of times in the

past by leaving copies of the complaint and summons at the office

of the chief of police, as he did here. At some point, he was

supposedly "informed that the Chief's Office would no longer accept

any summonses or complaints for the Worcester City Police Officers"

(emphasis added). The affidavit further states that Labriola

corroborated this information with another Deputy Sheriff, Rusty

Valery. Neither Deputy Richard nor Deputy Valery provided an

affidavit substantiating these remarks. While not based on first-

hand knowledge, Labriola's representations are sufficient to

militate in favor of discovery and an evidentiary hearing.

Although Deputy Richard apparently refused to supply an affidavit,

he would presumably answer to a court-authorized subpoena.

Moreover, the Labriola affidavit alleges that the

plaintiffs attempted to obtain "cop[ies] of all documents

concerning all summonses received by the Worcester Police

Department from June 2002 through December 2002," to ascertain

whether the defendant officers routinely acquiesced to service of

process via the method attempted in this case. According to

Labriola, the Worcester Police Department never responded to this

request; moreover, she stated that Rider, the City's attorney,

agreed to help her obtain the information, but that he never

followed through. Limited discovery and an evidentiary hearing

would permit the plaintiffs to uncover whether there is additional

-16-
evidence of service effected in the manner attempted in this case.

If the defendant officers have accepted service in this fashion on

a number of occasions, then a strong argument exists that McNamara

possessed implied, actual authority to accept service of process on

their behalf. See In re Focus Media Inc., 387 F.3d 1077, 1082 (9th

Cir. 2004) (holding that, while a purported agent must possess

actual authority to accept service of process, such authority may

be implied rather than express); accord United States v. Ziegler

Bolt & Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997); United States

v. Balanovski, 236 F.2d 298, 303 (2d Cir. 1956); see generally Inn

Foods, Inc. v. Equitable Co-op. Bank, 45 F.3d 594, 597 (1st Cir.

1995) (explaining basic, common law principles of agency and

implied authority in different context).

Second, the plaintiffs point to Policy No. 351, which

they suggest establishes apparent authority for McNamara to accept

service of process on behalf of the defendant officers. We

disagree; the policy lends negligible support to the plaintiffs'

assertion of agency. The policy states that "[a]ll summonses

received by the Worcester Police Department shall be recorded in

the office of the Chief of Police. The summons and travel fee

shall be forwarded to the officer named in the summons." As the

district court recognized, however, the policy is labeled "Revenue

Management" and concerns the acceptance of summonses and fees for

police officers to appear as witnesses. Indeed, Policy No. 351

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states that its purpose "is to provide guidelines for the

acceptance and receipt of monies received by any police personnel,"

so as to prevent conflicts of interests. The language of the

policy simply does not comport with the interpretation that the

plaintiffs ascribe to it. Even if it did, nothing in the policy

indicates that any of the defendant officers actually appointed--or

were required to appoint--McNamara, or any other individual, as an

agent for service of process. See Maiz v. Virani, 311 F.3d 334,

340 (5th Cir. 2002) (requiring actual authority) (citing United

States v. $184,505.01, 72 F.3d 1160, 1164 n.10 (3rd Cir. 1995));

see also Ziegler Bolt & Parts Co., 111 F.3d at 881 (mandating

express or implied actual authority, but noting that some courts

have found implied actual authority based on "'the doctrine of

apparent authority or agency by estoppel'" (quoting 1 Robert C.

Casad, Jurisdiction in Civil Action § 301.[2][b], at 3-12 to 3-13

(1991))). At most, Policy No. 351 serves as circumstantial

evidence that McNamara may have accepted summonses on the defendant

officers' behalf in a different context.

Third, the plaintiffs point to a related case, Boucher v.

City of Worcester, No. 04-12673-REK (D. Mass. Aug. 22, 2006), in

which certain of the defendant officers appear to have been served

in a similar manner without any objection. Thus, the plaintiffs

have shown that the defendant officers have, on at least one

occasion, acquiesced to a similar attempt at service. In Rivera-

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Lopez, a factually similar case, we reversed a lower court's

determination that a defendant was estopped from denying an agency

relationship with a secretary because "[t]he acceptance of service

[by a secretary] in prior cases unconnected with plaintiff might

have been specially authorized, or defendant . . . might have

chosen to waive formalities." 979 F.2d at 887. Nevertheless, we

remanded for further proceedings to determine the actual authority

of the secretary to accept service of process for the defendant.

Id. We explained that, "[i]n view of [the issue's] importance,

there should be a hearing on live testimony, not on conflicting

affidavits." Id. The record before us is silent as to why the

defendant officers did not challenge service in Boucher. The

plaintiffs' posited explanation--that they did not because McNamara

was an agent of the defendant officers--is plausible. It is also

credible that the defendants, for reasons of their own,

affirmatively decided to waive service in that case, or even that

their attorneys simply neglected to raise a valid defense. See

Rivera-Lopez, 979 F.2d at 887. An evidentiary hearing, with live

testimony, would help to resolve this unanswered question.

In summary, the circumstantial evidence adduced by the

plaintiffs gives rise to a permissible inference that the defendant

officers, in the past, authorized McNamara--or, perhaps, the clerks

in the Office of the Chief of Police--to act as their agent for

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service of process. The self-serving10 affidavits submitted by the

defendants are not so powerful as to resolve the matter

definitively, at least where the plaintiffs have introduced some

contravening evidence and have had no opportunity to conduct

related discovery and elicit testimony from McNamara and the

defendant officers. Thus, the district court was mistaken in its

assessment that the plaintiffs' request for limited discovery and

an evidentiary hearing was nothing more than a "grasp at straws."

Moreover, the plaintiffs have quite clearly demonstrated

substantial prejudice, given the district court's reasons for

dismissing the original action.

Accordingly, we hold that the district court abused its

discretion by dismissing the action without first permitting

limited discovery and holding an evidentiary hearing, given the

persistent factual uncertainty concerning agency.11 See id.; see

10
Although McNamara is not a defendant, she is nevertheless
affiliated with them.
11
Because we remand for limited discovery and an evidentiary
hearing, we decline to address the plaintiffs' additional
challenges. We note, however, that evidence adduced following
remand might alter the calculus for application of the
Massachusetts renewal statute by elucidating the nature of Deputy
Richard's erroneous service or the reasonableness of the
plaintiffs' reliance upon it, should the district court again
dismiss the original action based on a finding that McNamara was
not authorized to serve as an agent for the defendant officers.
For example, if the defendant officers accepted service of process
in this manner in many cases, but only due to multiple acts of
waiver, the plaintiffs might be deemed justified in mistakenly-but-
reasonably relying upon such an attempt at service.

-20-
also Surpitski, 362 F.2d at 256 ("When the fish is identified, and

the question is whether it is in the pond, we know no reason to

deny a plaintiff the customary license [to conduct discovery].").

However, the record is devoid of evidence describing any attempt at

service of either Thomas or Falcone, and the plaintiffs have not

offered any explanation to mitigate this apparent failure.

Additionally, the plaintiffs have abandoned their claims against

the City and Chief Gallagher. Consequently, these defendants were

properly dismissed from the case. If after discovery the district

court allows the first action to proceed, it may dismiss the second

action as duplicative; if the district court dismisses the first

action based on insufficient service of process, then it should

proceed to reconsider whether the renewal statute saves the second

action.

III. CONCLUSION

For the foregoing reasons, we reverse the district

court's dismissal of the original and the second action with

respect to Officers Daniel Dowd, Thomas Dowd, Duffy, McGinn, Moore,

Ortiz, and Towler. We remand for limited discovery and an

evidentiary hearing. We affirm the district court's dismissal of

the City of Worcester, Chief Gallagher, and Officers Falcone and

Thomas from the original action.

Affirmed in part, reversed in part, and remanded for

further proceedings. Costs are awarded in favor of appellants.

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