United States Court of Appeals
For the First Circuit
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No. 01-2189
JAMES A. CHUTE,
Plaintiff, Appellant,
v.
GEORGE WALKER,
Defendant, Appellee,
CITY OF CAMBRIDGE AND CAMBRIDGE RENT CONTROL BOARD, ROBERT W. HEALY,
CITY MANAGER, RONNIE WATSON, AS POLICE COMMISSIONER, CITY OF
CAMBRIDGE, UNKNOWN POLICE OFFICERS OF THE CITY OF CAMBRIDGE,
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, GEORGE WALKER, POLICE
OFFICER, CITY OF CAMBRIDGE, IN HIS OFFICIAL CAPACITY,
Defendants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
____________________
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Gertner,* District Judge.
____________________
Valeriano Diviacchi for appellant.
Thomas J. Urbelis with whom Urbelis, Fieldsteel & Bailin, LLP was
on brief for appellee.
* Of the District of Massachusetts, sitting by designation.
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February 27, 2002
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LYNCH, Circuit Judge. James A. Chute, a man of Irish
descent, filed a nine-count complaint against the City of
Cambridge, the city's police commissioner, and several of the
city's police officers in both their individual and official
capacities, alleging that defendant, officer George Walker,
directed ethnic slurs toward him, hit him on the head,
handcuffed him too tightly, and then falsely arrested,
imprisoned, and charged him with various crimes.
Walker, appearing through counsel, filed a motion to
dismiss one of Chute's nine counts and an answer to Chute's
complaint. On the next day, the city, and all of the other
defendants, including Walker, in their official capacities only,
filed a motion to dismiss counts two through four. Chute
responded to none of these motions. Although no party moved to
dismiss eight of the claims against Walker individually, the
district court nonetheless dismissed Chute's complaint in its
entirety for failure to state a claim, Fed. R. Civ. P. 12(b)(6),
and denied Chute's motion for relief from judgment, Fed. R. Civ.
P. 60(b).
Chute appeals the dismissal of seven of the nine
counts, only as they apply to Walker in his individual capacity.
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He concedes the dismissal of two of the counts in their
entirety. He also concedes the dismissal of all of the counts
against Walker in his official capacity as well as the dismissal
of all of the counts against all of the other defendants.1 As
to the remaining counts against Walker individually, Chute says
the district court erred by, sua sponte, dismissing those counts
without providing him notice or an opportunity to be heard. In
addition, Chute says the district court's conclusion that all of
his claims against Walker must be dismissed, because he never
served Walker with process, is incorrect because Walker waived
this objection. We agree that the district court erred and so
we reverse the district court's dismissal of counts one, two,
and five through nine of Chute's complaint, against Walker
individually, and reinstate the case for further proceedings.
I.
On August 2, 2000, Chute filed a nine-count complaint
in the district court seeking money damages against the City of
Cambridge, the city's police commissioner, and several police
1 On October 19, 2001, this court granted the official capacity
defendants' unopposed motion to dismiss the appeal naming them, and
dismissed the appeal except for Chute's appeal of the dismissal of the
action against defendant Walker in his individual capacity.
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officers, including officer Walker, in their individual and
official capacities. The complaint stated that on August 7,
1997, officer Walker called Chute a "mick bastard" and said to
him "I'm an American, why don't you scum go back to where you
came from." According to Chute, Walker then hit him on the head
several times and, with the help of other unknown officers,
falsely arrested him and used excessive force in doing so.
Chute's complaint also asserted that Walker and the other
unknown officers falsely charged him with "several criminal and
motor vehicle violations" and falsely imprisoned him. According
to the signed Return of Service, on August 3, 2000, a constable
served the summons and complaint by handing copies to Lieutenant
Walsh, who signed as an authorized agent for officer Walker.
In counts one, four, and five, Chute claimed that these
acts violated, in different ways, his Fourth, Eighth, and
Fourteenth Amendment rights under color of state law in
violation of 42 U.S.C. § 1983. In counts two and six, he also
claimed that these acts constituted interference, by threat,
intimidation, and coercion, with the exercise of his
Massachusetts constitutional and statutory rights, in violation
of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12,
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§§ 11H and 11I (2000). In count three, he alleged a violation
of the Massachusetts Tort Claims Act, id. ch. 258, and, in
counts seven through nine, state tort law prohibiting assault
and battery, false arrest, and false imprisonment. Counts five
through eight were explicitly against Walker in his individual
capacity and counts one, two, and nine might also fairly be read
to assert claims against Walker individually.
Approximately one month later, on September 5, Walker
filed a Rule 12(b)(6) motion to dismiss count three -- Chute's
state Tort Claims Act count -- and an answer to the complaint.
In neither filing did Walker object to the manner in which he
had been served or otherwise purport to limit the appearance by
his counsel. On the next day, September 6, the city, and all of
the other defendants, including Walker, in their official
capacities only, filed a motion to dismiss counts two through
four and an answer to the complaint. Chute did not respond to
any of these filings.
On February 15, 2001, the district court dismissed
Chute's complaint, in its entirety and with prejudice. The
court based its dismissal on the official capacity defendants'
September 6 motion to dismiss counts two through four, which the
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district court incorrectly characterized as a motion to dismiss
"all" counts other than count one (the § 1983 claim). The
district court dismissed count one once it dismissed all of the
other counts because it characterized count one as derivative of
those other counts.
Almost two weeks later, on February 28, Chute filed a
motion for relief from final judgment, under Fed. R. Civ. P.
60(b), arguing (1) that Walker had never, in his individual
capacity, moved to dismiss,2 and (2) that the official capacity
defendants' motion to dismiss only sought dismissal of counts
two through four. Chute's counsel admitted having failed to
respond to the official capacity defendants' motion to dismiss,
but argued that the motion did not seek dismissal of any counts
against the individual capacity defendants and that it did not
even seek dismissal of all counts against the city and the
official capacity defendants.
2 About two weeks later, Chute amended his 60(b) motion,
conceding that Walker had filed a motion to dismiss count three
(Chute's Tort Claims Act count) only, but continuing to insist
that no defendant had sought dismissal of all counts against the
individual capacity defendants. The amendment to the motion
consistently, but erroneously, refers to defendant Watson (the
Cambridge police commissioner, sued in his official capacity)
instead of Walker.
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Without addressing Chute's claim that no party had ever
filed a motion to dismiss all counts against the individual
capacity defendants, all defendants responded to Chute's 60(b)
motion by arguing that Chute's counsel had not provided a
legally sufficient excuse for failing to respond to the earlier-
filed motions to dismiss counts two through four and count
three.
Around this time, Chute's counsel withdrew and new
counsel appeared for him. Chute's new counsel, who represents
him on appeal, waived the portion of Chute's 60(b) motion that
sought vacation of the dismissal of the claims against the city
and all official capacity defendants; he only sought vacation of
the judgment dismissing counts one, two, and five through nine,
against the individual capacity defendants. Counsel explained
that neither Walker, nor any of the "unknown officers," in their
individual capacities, had ever filed a motion to dismiss these
counts and that there was no basis for a sua sponte dismissal.
On June 12, 2001, the district court entered an order
deferring its ruling on Chute's 60(b) motion and inviting him to
show good cause for relief from judgment. The district court
reasoned that it properly dismissed Chute's complaint, in its
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entirety, because the complaint did not assert any individual
capacity claims. This was not so. The district court also
offered a new justification for dismissal: it said that Chute
had never served Walker with process in his individual capacity
and that Walker had only participated in the litigation in his
official capacity.
Chute's new counsel accepted the district court's
invitation to show cause and filed a memorandum stating that
Chute's complaint did, in fact, assert counts against Walker
individually. In response to the district court's insufficient
service rationale, the memorandum noted that, contrary to the
district court's June 12 conclusion, separate counsel had
represented Walker in his individual capacity. Chute also
explained that Walker, in his individual capacity, had not moved
to dismiss the entire complaint and that Walker had waived any
objection to service of process by not objecting in his answer.
Again, this time in response to Chute's memorandum to
show cause, Walker advanced the inapposite argument that Chute's
counsel had failed to provide a legally sufficient excuse for
failing to respond to the earlier-filed motion to dismiss counts
two through four. Walker argued, without ever addressing
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Chute's claim that no motion to dismiss all counts against
Walker individually had ever been filed, and without rebutting
Chute's claim that Walker had waived any service of process
objection, that Chute's failure to respond to the earlier-filed
motions to dismiss did not constitute excusable neglect.
Finally, on July 30, 2001, the district court denied
Chute's 60(b) motion. The district court deleted its previous
conclusion that Walker had only been represented by a single
attorney, but noted that Walker's attorney had never claimed
that he had been authorized to represent Walker individually.
The district court, in defending its dismissal of the individual
capacity claims against Walker, relied on its view that Walker
had never been served in his individual capacity.
II.
We review de novo a district court's dismissal of a
complaint for failure to state a claim under Fed. R. Civ. P.
12(b)(6).3 Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,
228 F.3d 24, 30 (1st Cir. 2000).
3 Because Chute has brought a timely appeal of the
district court's final judgment, we need not discuss or apply
the standard of review for rulings on 60(b) motions.
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Here, the district court dismissed Chute's complaint
sua sponte. The complaint set out nine counts against several
different defendants. Among these counts were several counts
against Walker in his individual capacity. Neither Walker nor
anybody else ever moved to dismiss all nine counts.
Nevertheless, the district court dismissed Chute's complaint, in
its entirety and with prejudice,4 based on the official capacity
defendants' September 6 motion to dismiss counts two through
four.
Contrary to the district court's conclusion, Chute did
sue Walker in his individual capacity. Chute's complaint
stated, at least thirteen separate times, including twice in the
4 The district court appears to backtrack from its
February 15 memorandum and order dismissing the entirety of
Chute's action when it concluded its July 30 denial of Chute's
60(b) motion by stating:
When the adjudication, now confirmed, was made, no claim of
liability of a police officer individually was before the
court and no individual had been served or filed an
appearance. In these circumstances, no adjudication on the
merits has been made in this case as to any claim against
a police officer individually.
This recharacterization does not change the fact that Chute's
complaint explicitly asserted several counts against Walker
individually and that, on February 15, the district court
dismissed the complaint.
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complaint's caption, that Chute was suing Walker and other
unknown officers "individually" or in their "individual
capacities." Nevertheless, the district court incorrectly
concluded that its "interpretation of the original complaint as
one making only official-capacity claims was reasonable" and
noted that "[t]he City of Cambridge, under that interpretation,
was the only defendant." Chute sued Walker individually, and
the City of Cambridge was not the only defendant.
Furthermore, no party moved to dismiss the entire
complaint. Walker filed a motion to dismiss count three and the
city, and all of the other defendants, including Walker, in
their official capacities only, filed a motion to dismiss counts
two through four. Based on the official capacity defendants'
motion to dismiss counts two through four, which the district
court characterized as a motion to dismiss "all" counts (other
than the § 1983 count), the district court dismissed the entire
complaint.
Chute grants that he never responded to these two
motions to dismiss and concedes the dismissal of all counts
against the city and the official capacity defendants, and count
three against Walker. He also relinquishes count four against
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Walker. He only seeks reinstatement of counts one, two, and
five through nine against Walker individually because, he says,
these counts were improperly dismissed. Chute claims that these
counts were dismissed sua sponte and without any notice or
opportunity for him to be heard; no defendant moved to dismiss
the entire complaint and so he was caught by surprise when the
district court dismissed. We agree.
"Sua sponte dismissals are strong medicine, and should
be dispensed sparingly." Gonzalez-Gonzalez v. United States,
257 F.3d 31, 33 (1st Cir. 2001). The general rule is that "in
limited circumstances, sua sponte dismissals of complaints under
Rule 12(b)(6) . . . are appropriate," but that "such dismissals
are erroneous unless the parties have been afforded notice and
an opportunity to amend the complaint or otherwise respond."
Futura Dev. of P.R., Inc. v. Estado Libre Asociado de P.R., 144
F.3d 7, 13-14 (1st Cir. 1998); see also Carparts Distrib. Ctr.,
Inc. v. Auto. Wholesaler's Assoc. of New England, Inc., 37 F.3d
12, 15 (1st Cir. 1994).
"This does not mean . . . that every sua sponte
dismissal entered without prior notice to the plaintiff
automatically must be reversed. If it is crystal clear that the
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plaintiff cannot prevail and that amending the complaint would
be futile, then a sua sponte dismissal may stand." Gonzalez-
Gonzalez, 257 F.3d at 37; see also Clorox, 228 F.3d at 30
(noting "limited exceptions to the general rule barring
dismissal without notice"); accord Curley v. Perry, 246 F.3d
1278 (10th Cir. 2001). The party defending the dismissal must
show that "the allegations contained in the complaint, taken in
the light most favorable to the plaintiff, are patently
meritless and beyond all hope of redemption." Gonzalez-
Gonzalez, 257 F.3d at 37.
Without expressing any further opinion of the merits
of Chute's complaint, we conclude that counts one, two, and five
through nine, against Walker individually, are not "patently
meritless and beyond all hope of redemption." Id. Therefore,
it was error to dismiss these counts sua sponte and without
notice.
This does not end the matter because the district court
stated, as its reason for denying Chute's 60(b) motion, that it
lacked personal jurisdiction because Chute had never served
Walker individually with process. Without endorsing that
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reasoning or reaching the issue,5 the dismissal was still
improper because Walker waived any insufficiency of service of
process objection when he filed an answer to the complaint and
a motion to dismiss without raising such an objection.
Fed. R. Civ. P. 12(h)(1) states: "A defense of . . .
insufficiency of service of process is waived . . . if omitted
from a motion in the circumstances described in [Rule 12](g)."
Rule 12(g) states: "If a party makes a motion under this rule
but omits therefrom any defense or objection then available to
the party which this rule permits to be raised by motion, the
party shall not thereafter make a motion based on the defense or
objection so omitted." Walker moved to dismiss under Rule
12(b)(6) and omitted a Rule 12(b)(5) insufficiency of service of
process defense, so his insufficiency of service of process
defense is waived. See 5A C.A. Wright & A.R. Miller, Federal
Practice and Procedure § 1353, at 281 (2d ed. 1990) ("[I]f a
motion is made asserting any of the defenses listed in Rule
12(b), any objection to process must be joined in that motion or
it will be deemed waived."); id. § 1391, at 744 ("[I]t now is
5 Chute did serve Walker and no restriction was placed
on the acceptance of service.
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clear that any time defendant makes a pre-answer Rule 12 motion,
he must include, on penalty of waiver, the defenses set forth in
subdivisions (2) through (5) of Rule 12(b).").
Walker never raised the insufficiency of process issue;
only the district court did. We need not address whether this
is ever permissible, but note that other circuits frown on it
and that it was impermissible under these circumstances.6 The
district court noted its view that Walker did not waive his
objection, stating that Walker's motion to dismiss count three
was "filed by the only attorney who has made an appearance for
any of the defendants in this case." The district court later
recognized that this was incorrect and deleted this language
from its earlier memorandum. The district court, however, stuck
6 E.g., O'Brien v. R.J. O'Brien & Assocs., Inc., 998 F.2d
1394, 1399 (7th Cir. 1993) (stating that "once the defendant has
waived objections based on insufficiency of process and
submitted generally to the jurisdiction of the court, the court
is powerless to dismiss the suit for lack of personal
jurisdiction"); Pusey v. Dallas Corp., 938 F.2d 498, 501 (4th
Cir. 1991) (stating that "unexcused failure to raise the
untimeliness of service defense . . . must be held to deprive
the court of that power"); Pardazi v. Cullman Med. Ctr., 896
F.2d 1313, 1317 (11th Cir. 1990) (holding that "when a defendant
has waived his objection to insufficient service of process (or
any other defect in personal jurisdiction) . . . the court may
not, . . . [on] its own initiative, dismiss the suit for lack of
personal jurisdiction or insufficient service of process").
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to its rationale that attorney Urbelis had never represented
Walker individually. This too was incorrect. The defendants'
opposition to Chute's 60(b) motion was filed by both Schlacter,
for the official capacity defendants, and Urbelis, explicitly
stating that he represented Walker "In His Individual Capacity."
Therefore, Walker waived his service of process objection when
he did not include it in his 12(b) motion to dismiss and the
district court could not have resurrected it for him.
In conclusion, the district court erroneously dismissed
Chute's complaint, sua sponte and without providing Chute notice
or an opportunity to be heard, when it dismissed all counts even
though no defendant ever moved for such a dismissal. The
district court committed further error when it denied Chute's
60(b) motion, relying on insufficient service of process,
because Walker waived such an objection when he filed a 12(b)(6)
motion that did not include any mention of insufficient service.
III.
The district court's dismissal of counts one, two, and
five through nine of Chute's complaint, against Walker
individually, is reversed and the case is reinstated for further
proceedings not inconsistent with this opinion.
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