Grimaldi v. His Holiness Pope Benedict XVI, The Roman Catholic Church et al

Filing 18

ORDER DISMISSING ACTION WITHOUT PREJUDICE. Signed by JUDGE HELEN GILLMOR on 10/17/2012. ~ Plaintiff failed to effect service on any defendant as prescribed by Federal Rule of Civil Procedure 4 and has failed to prosecute his claims. The Complain t is DISMISSED WITHOUT PREJUDICE. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants (Aniello Grimaldi) not registered to receive electronic notifications were served by first class mail on 10/18/2012 at the address of record.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Aniello Grimaldi,
Plaintiff,
vs.

His Holiness Pope Benedict
XVI, The Roman Catholic
Church; Apostalic
Nunciature, Most reverend
Carlo Maria Vigano; United
States Conference of
Catholic Bishops; Bishop
Larry Silva, Archdiocese of
Honolulu; John Doe, Priest,
Defendant.

Civ. No. 12-00203 HG-RLP

ORDER DISMISSING ACTION WITHOUT PREJUDICE
Plaintiff alleges an unidentified priest assaulted,
battered, and violated his right to Freedom of Speech and Freedom
of Religion.

Plaintiff claims that the co-defendants were

responsible for the priest’s actions.
Defendant Bishop Larry Silva moves to dismiss the Complaint
under Federal Rule of Civil Procedure 12(b) for insufficiency of
service of process and failure to state a claim.

The Complaint

is DISMISSED WITHOUT PREJUDICE.

PROCEDURAL HISTORY
On February 3, 2012, Plaintiff Aniello Grimaldi (hereafter
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“Plaintiff Grimaldi”), proceeding pro se, filed a Complaint in
the United States District Court, Southern District of New York
against Defendants His Holiness Pope Benedict XVI, The Roman
Catholic Church, Apostalic Nunciature, Most reverend Carlo Maria
Vigano, United States Conference of Catholic Bishops, Bishop
Larry Silva, Archdiocese of Honolulu, and John Doe Priest. (Doc.
1).
On February 14, 2012, venue was transferred to this Court
pursuant to a Transfer Order. (Doc. 3).
On July 11, 2012, Defendant Bishop Larry Silva (hereafter
“Defendant Bishop Silva”) filed “DEFENDANT BISHOP LARRY SILVA’S
MOTION TO DISMISS COMPLAINT FILED ON FEBRUARY 3, 2012” (hereafter
“Motion to Dismiss”) (Doc. 8).
On July 12, 2012, this Court entered a Minute Order and
elected to rule upon the Motion to Dismiss without a hearing
pursuant to Local Rule 7.2(d). (Doc. 9).

The Court set July 25,

2012 as Plaintiff’s deadline to file any Opposition to the Motion
to Dismiss.
On July 30, 2012, Plaintiff Grimaldi requested a continuance
to respond to the Motion to Dismiss because he stated he did not
receive a copy of the Motion. (Doc. 12).
On July 31, 2012, the Court entered a Minute Order extending
Plaintiff’s deadline to file any Opposition to the Motion to
Dismiss to August 24, 2012.

At the request of Plaintiff, the

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Court also amended Plaintiff’s address and sent a copy of the
Motion to that address. (Doc. 13).
Plaintiff did not comply with the Court’s July 31, 2012
Order and has not filed an Opposition to the Motion to Dismiss.
On August 2, 2012, a Status Conference was held before the
Magistrate Judge.

Plaintiff Grimaldi did not appear in person or

by telephone at the Status Conference.
On September 27, 2012, a Rule 16 Scheduling Conference was
held before the Magistrate Judge.

Plaintiff Grimaldi did not

appear in person or by telephone at the Scheduling Conference.

BACKGROUND
The Complaint states Plaintiff Grimaldi attended a Sunday
Mass service at St. Augustine Church By The Sea located in
Honolulu, Hawaii. (Complaint at ¶ a).

Although Plaintiff alleges

that he attended the Mass Service on or about February 4, 2012 or
on February 12, 2012, (id.), the Complaint was filed on February
3, 2012 in the Southern District of New York.
Plaintiff Grimaldi states he made a comment to a priest
while receiving communion during the Mass Service. (Id. at ¶ c).
Plaintiff alleges the priest responded by grabbing his right arm
without permission and later evicted him from the church. (Id. at
¶ d, f).

Plaintiff claims the priest’s actions were an assault

and battery and violated Plaintiff’s right to Freedom of Speech

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and Freedom of Religion. (Id.)

Plaintiff maintains that the co-

defendants are responsible for the priest’s actions. (Id. at ¶
h).

Defendant Bishop Silva moves to dismiss the Complaint.

STANDARD OF REVIEW
I.

Insufficiency of Service of Process
A challenge to service of process may be made by motion to

dismiss under Federal Rule of Civil Procedure 12(b)(5) for
defects in the manner of service or insufficient service of
process.
Federal Rule of Civil Procedure 4(m) provides that the
plaintiff is responsible for the service of the complaint and
summons within 120 days after the filing of the complaint.

Rule

4 requires plaintiff to provide copies of the summons and
complaint to the person effecting service.

Fed. R. Civ. P.

4(c)(1).
Rule 4(l) of the Federal Rule of Civil Procedure states that
“[u]nless service is waived, proof of service must be made to the
court . . . by the server’s affidavit.”

II.

Fed. R. Civ. P. 4(l).

Lack of Prosecution
Federal Rule of Civil Procedure 41(b) provides that a

“dismissal under this subdivision (b) and any dismissal not under
this rule - except one for lack of jurisdiction, improper venue,
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or failure to join a party under [Federal Rule of Civil
Procedure] 19 - operates as an adjudication on the merits.”
R. Civ. P. 41(b).

Fed.

Rule 41(b) grants district courts the

authority to sua sponte dismiss actions for failure to prosecute
or for failure to comply with court orders.

Pagano v. OneWest

Bank, F.S.B., CV 11-00192 DAE-RLP, 2012 WL 74034, at *6 (D. Haw.
Jan. 10, 2012)(citing Link v. Wabash R.R. Co., 370 U.S. 626,
629–31 (1962) (“The power to invoke this sanction is necessary in
order to prevent undue delays in the disposition of pending cases
and to avoid congestion in the calendars of the District
Courts.”).
A district court must weigh five factors to determine
whether to dismiss a case for lack of prosecution: (1) the
public's interest in expeditious resolution of litigation; (2)
the court's need to manage its docket; (3) the risk of prejudice
to the defendant; (4) the public policy favoring the disposition
of cases on their merits; and (5) the availability of less
drastic sanctions.

Bautista v. Los Angeles County, 216 F.3d 837,

841 (9th Cir. 2000).

ANALYSIS
I.

Plaintiff Has Failed to Serve Any Defendant
The Complaint was filed on February 3, 2012.

Plaintiff

Grimaldi was required to accomplish service by June 3, 2012.
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Plaintiff has not filed any certificates of service as to
any defendant, as required by Federal Rule of Civil Procedure 4.
He has failed to properly effect service by the Rule 4(m)
deadline.

A.

Defendant Bishop Silva’s Motion to Dismiss for insufficiency
of service of process
Defendant Bishop Silva moves to dismiss the Complaint

because Plaintiff Grimaldi has not complied with Federal Rule of
Civil Procedure 4.
Federal Rule of Civil Procedure 4(e) governs service upon
individuals within a judicial district of the United States.

It

states:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age
and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e)(2).
Rule 4(e) also allows for an individual to be served
“following state law for serving a summons in an action brought
in courts of general jurisdiction in the state where the district
court is located or where service is made.”
4(e)(1).

Fed. R. Civ. P.

Hawaii Rule of Civil Procedure 4 mandates service of an
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individual in precisely the same manner as Federal Rule of Civil
Procedure 4(e)(2).

See Haw. R. Civ. P. 4.

Plaintiff Grimaldi was required to serve Bishop Larry Silva
personally, at his home, or on an agent authorized by law to
accept service for him.

The only evidence of service is provided

by Defendant Bishop Silva who states Plaintiff attempted to serve
him by sending a copy of the Complaint and Summons by regular
United States mail.

Plaintiff did not file a certificate of

service in connection with his attempted service on Defendant
Bishop Silva.

Plaintiff Grimaldi failed to meet the service

requirements prescribed by Federal Rule of Civil Procedure 4(e).
Stanley v. Goodwin, 475 F. Supp. 2d 1026, 1034-35 (D. Haw. 2006).

B.

Plaintiff Grimaldi has not requested an extension of time
for service.
The deadline for service of the Complaint was June 3, 2012.

Federal Rule of Civil Procedure 4(m) permits a court to extend
the time for service if the plaintiff shows good cause for the
failure.

Plaintiff Grimaldi has not requested an extension of

time for service.
Plaintiff Bishop Silva’s Motion to Dismiss the Complaint is
GRANTED.

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II.

Lack of Prosecution
It is necessary to weigh five factors to determine if a case

should be dismissed for lack of prosecution: (1) the public's
interest in expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendant; (4) the public policy favoring the disposition of
cases on their merits; and (5) the availability of less drastic
sanctions.

Bautista v. Los Angeles County, 216 F.3d 837, 841

(9th Cir. 2000).
The Federal Rule of Civil Procedure 4(m) service deadline
passed on June 3, 2012 and Plaintiff Grimaldi has not filed a
certificate of service as to any of the defendants, nor has he
requested an extension to effect service.
an Opposition to the Motion to Dismiss.

Plaintiff did not file

He also failed to appear

at the August 2, 2012 Status Conference and the September 27,
2012 Rule 16 Scheduling Conference, and has not filed a Rule 16
Scheduling Conference Statement.
undertaken.
merits.

Little or no discovery has been

Public policy favors disposition of a case on the

The Court finds that dismissal of Plaintiff’s Complaint

without prejudice is appropriate.
The Court finds it unnecessary to address the allegation in
the Motion to Dismiss that Plaintiff failed to state a claim.
The Complaint is DISMISSED WITHOUT PREJUDICE.

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CONCLUSION
Plaintiff failed to effect service on any defendant as
prescribed by Federal Rule of Civil Procedure 4 and has failed to
prosecute his claims.
The Complaint is DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED.
DATED: October 17, 2012, Honolulu, Hawaii.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Aniello Grimaldi v. His Holiness Pope Benedict XVI, et al.;
Civil No. 12-00203 HG-RLP; ORDER DISMISSING ACTION WITHOUT
PREJUDICE.

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