Edwards v. Bertuccis Italian Restaurant

Filing 59

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Damages (Docket No. 31) is DENIED, and his proposed Amended Complaint and request for summary judgment for damages against the defendant (incorporated within the Mo tion for Damages), is DENIED. Plaintiff's Motions and Letters for Damages and for other relief (Docket Nos. 38, 39, 40, 41, 43, 45, 48, 49, 50, 51, 52, 53, 56, 57, and 58) are DENIED. Defendant's Motion to Strike Plaintiffs Motions (Docket No. 45) is DENIED. Plaintiff is PROHIBITED from filing any further motions, letters, or requests seeking damages, accommodation, or other substantive relief until further order of this Court. Plaintiff is WARNED that failure to comply with this Court s directives may result in the imposition of sanctions, including the dismissal of this action with prejudice. Plaintiff is WARNED that any future filings must be legible. Defendant's Motion to Dismiss (Docket No. 32) is DENIED without prejudice to its renewal. The Clerk shall reissue a summons with respect to defendant Bertucci's and shall send to plaintiff the reissued summons, a copy of the Amended Complaint (Docket No. 19), a copy of the Memorandum and Order (Docket No. 27), and a copy of this Memorandumand Order. Plaintiff is directed to serve those documents on defendant Bertuccis in accordance with Rule 4 of the Federal Rules of Civil Procedure and file Proof of Service within 30 days of the date of this Memorandum and Order. If directed to do so by the plaintiff, the United States Marshals Service shall effect service of process as directed, and shall advance the costs of service.(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
ROBERT S. EDWARDS,
Plaintiff,
v.
BERTUCCI’S ITALIAN RESTAURANT,
Defendant.

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Civil Action No.
13-10604-FDS

MEMORANDUM AND ORDER
SAYLOR, J.
I.

Introduction
On March 13, 2013, plaintiff Robert S. Edwards filed this employment discrimination

action against Bertucci’s Italian Restaurant for its alleged failure to hire him as a dishwasher due
to his age and disability. On April 8, 2013, this Court issued a Memorandum and Order (Docket
No. 12) denying Edwards’s request for appointment of counsel and for other relief, and directing
him to file an amended complaint by June 7, 2013. In addition, the Court prohibited Edwards
from filing any further letters or motions until after the amended complaint was filed. He was
also prohibited from filing requests for relief in the form of a letter, and was advised that any
requests for relief must be filed in the form of a motion stating precisely what relief was sought
and the basis for such relief.
On May 13, 2013, this Court issued a further Memorandum and Order (Docket No. 27)
again denying Edwards’s request for appointed counsel and his requests for other relief. The

Court dismissed all claims against defendant Christina McSwain, as well as his claims under the
ADEA, the Equal Pay Act, and Title VII; however, this Court permitted this action to proceed
against Bertucci’s as the sole defendant, and only with respect to the ADA claim. The standard
service package was then provided to Edwards for effecting service of process.
Thereafter, Bertucci’s filed a Motion to Dismiss for Insufficient Process and Insufficient
Service of Process under Rules 12(b)(4) and 12(b)(5) (Docket No. 32). In response, Edwards
continuously has filed a barrage of letters and motions seeking immediate relief in one form or
another. Most of the letters are not entirely legible due to his handwriting style. Bertucci’s has
requested, among other things, that those filings be struck from the record.
II.

Discussion
A.

The Motion for Damages, the Proposed Amended Complaint, and Request
for Summary Judgment

Edwards’s Motion for Damages (Docket No. 31) (which incorporates a proposed
amended complaint and also requests summary judgment for damages against Bertucci’s), is
DENIED. He already has been afforded one opportunity to amend his complaint, and did so.1
Edwards may not further amend his amended complaint absent specific permission from the
Court. Furthermore, the Court finds that allowing Edwards to file his proposed Second
Amended Complaint (as contained in Docket No. 31) would be futile because it fails to add
anything substantively new to the mix. From what can be discerned, Edwards simply reiterates
the allegations of discrimination that he has made a number of times in his prior filings.
Moreover, the proposed Second Amended Complaint is not organized and does not comport with
the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Finally, his claim
1

Prior to service of the summons and amended complaint, and before any responsive pleading had been filed,
Edwards filed a “Motion for Damages.”

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for damages is premature and has been denied by this Court on prior occasions.
B.

Letters and Motions for Damages and Requests For Other Relief

Similarly, Edwards’s letters and motions for damages, and his various requests for other
relief, as contained in Docket Nos. 39, 40, 43, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58, are
DENIED in their entirety as wholly unfounded, irrational, abusive, duplicative, premature,
and/or violative of this Court’s prior Order.2
To the extent that Edwards’s Opposition to Bertucci’s Motion to Dismiss (Docket No.
38) contains a request for relief in the form of reasonable accommodation for his disability and
$30-$40 million in damages, that motion is DENIED as unfounded. Similarly, his motion
(Docket No. 36) seeking a privacy agreement between himself and Bertucci’s is DENIED as
unfounded. Finally, his Motion requesting that Bertucci’s be investigated for its hiring practices
(Docket No. 41) is DENIED as unfounded.
C.

Defendant’s Motion to Strike

While the Court is denying all requests for relief by Edwards, it will not strike his
motions or letters, and therefore defendant’s motion to strike (Docket No. 45) is DENIED as
unnecessary. To clarify, however, this Court considers the operative pleading to be the
Amended Complaint (Docket No. 19) as limited by the Memorandum and Order (Docket No.

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In his Motion for Damages (Docket No. 39), he seeks in excess of $50 million in damages and again requests
summary judgment. In his Motion for Damages (Docket No. 40), he seeks $35 million. In his Motion for Summary
Judgment (Docket No. 43), he seeks between $40 and $50 million in damages and summary judgment against Bertucci’s.
He also seeks an out-of-court settlement. In his letter (Docket No. 48), he seeks a Court Order for damages in the amount
of $40 to $50 million. In his letter (Docket No. 49), he seeks $40 to $50 million in damages. In his letter (Docket No.
50) he seeks $60 to $80 million in damages. He also seeks to have Attorney Christopher Vrountas, Bertucci’s defense
counsel, be charged with contempt of court. In his letter (Docket No. 51) , he complains of financial hardship,
complains about Attorney Vrountas, and seeks summary judgment for $50 million in damages, payable by August 19,
2013. In his letter (Docket No. 52), he again seeks $50 million in damages, along with a privacy agreement and
summary judgment. His letter filed August 28, 2013 (Docket No. 55) is illegible apart from seeking damages. His letters
filed on September 4, 2013, and September 9, 2013 (Docket Nos. 56, 57, and 58) are of the same ilk.

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27), and not the proposed Second Amended Complaint (contained in Docket No. 31).
D.

Warning to Plaintiff That Sanctions May Be Imposed for Pleading
Misconduct

In order to ensure that the Court’s resources do not continue to be wasted, it is hereby
ORDERED that Edwards shall not file any further motion, letter, or request for damages,
accommodations, or other substantive relief until further order of this Court. At a minimum, the
Court will not permit the filing of any such motion by plaintiff until after a discovery and motion
schedule has been set by this Court after a Rule 16(b) conference (assuming the case is permitted
to proceed that far).
Edwards is hereby WARNED that this Court will not tolerate abusive pleading practices
that serve only to waste the scarce judicial resources of the Court. Failure to comply with this
directive will result in a dismissal of this action as a sanction.
Furthermore, in order to ensure proper docketing and processing, Edwards is hereby
WARNED that any documents filed by him must be completely legible. If he is unable to
submit legible handwritten pleadings, he must file typewritten or word-processing versions.
Any document that is not legible will not be considered.
E.

The Motion to Dismiss for Insufficient Process and Insufficient Service of
Process Under Rules 12(b)(4) and 12(b)(5)

Bertucci’s argues that this Court should dismiss the complaint because Edwards has
failed to serve both a summons and complaint as required by Rule 4(c). Instead, Edwards has
served only the summons and a purported proof of service, which Bertucci’s contends is plainly
false. In its motion to dismiss, Bertucci’s outlines the proper service requirements under Rule
4(h)(1)(A) and (B) of the Federal Rules of Civil Procedure with respect to service on a
corporation. See Motion to Dismiss (Docket No. 32 at 3).
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Bertucci’s further argues that Edwards improperly attempted to serve Bertucci’s by
himself, that he improperly used the mail for service rather than personal delivery, and that he
failed to direct service to a corporate officer, general agent, managing agent, or a person who is
otherwise authorized to accept service.3 In his opposition, Edwards simply disagrees with the
arguments presented and contends that service by regular mail, and completion of the back of the
summons form—sent to the two addresses listed on the EEOC Notice—was sufficient.
The service of process by Edwards is clearly deficient. Nevertheless, although this action
is subject to dismissal for insufficient service of process, because Edwards is proceeding pro se
and clearly is unfamiliar with service procedures, this Court will afford him one final
opportunity to effect service of process on Bertucci’s in compliance with the Federal Rules of
Civil Procedure. Accordingly, Bertucci’s Motion to Dismiss (Docket No. 32) is DENIED
without prejudice to its renewal.
The Clerk shall reissue a summons with respect to Bertucci’s and shall send to Edwards
the reissued summons, a copy of the Amended Complaint (Docket No. 19), a copy of the
Memorandum and Order (Docket No. 27) (limiting the claims), and a copy of this Memorandum
and Order. If he wishes to proceed with this case, Edwards must serve all of these documents on
Bertucci’s in accordance with Rule 4 of the Federal Rules of Civil Procedure. Edwards must file
a proof of service demonstrating proper service within 30 days of the date of this Memorandum
and Order. Failure to effect timely and proper service will result in a dismissal of this action.

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In support, Bertucci’s submits the Affidavit of Scott Handren, its Director, Risk & Benefits. See Affidavit
(Docket No. 34). Also attached was the purported Proof of Service made by Edwards. Additionally, counsel for
Bertucci’s submitted an Affidavit stating the Edwards never personally served him with the summons and Complaint,
and that he is not a director, general agent, managing agent, or a person authorized to accept service on behalf of
Bertucci’s. See Affidavit of Christopher T. Vrountas, Esq. (Docket No. 35).

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No further opportunities to serve will be granted.
Finally, as ordered in the Memorandum and Order (Docket No. 27), because Edwards is
proceeding in forma pauperis, he may elect to have service made by the United States Marshals
Service. If he elects to do so, the United States Marshals Service shall serve the reissued
summons, a copy of the Amended Complaint, a copy of the Memorandum and Order (Docket
No. 27) and a copy of this Memorandum and Order upon Bertucci’s in the manner directed by
plaintiff, with all costs of service to be advanced by the United States Marshals Service. This
ruling does not relieve Edwards from the obligation to effect proper service and impose it on the
United States Marshals Service. Edwards must provide the United States Marshals Service will
all paperwork necessary to effect proper service in a timely manner.
III.

Conclusion
Based on the foregoing, it is hereby Ordered that:

1.

Plaintiff’s Motion for Damages (Docket No. 31) is DENIED, and his proposed Amended
Complaint and request for summary judgment for damages against the defendant
(incorporated within the Motion for Damages), is DENIED.

2.

Plaintiff’s Motions and Letters for Damages and for other relief (Docket Nos. 38, 39, 40,
41, 43, 45, 48, 49, 50, 51, 52, 53, 56, 57, and 58) are DENIED.

3.

Defendant’s Motion to Strike Plaintiff’s Motions (Docket No. 45) is DENIED.

4.

Plaintiff is PROHIBITED from filing any further motions, letters, or requests seeking
damages, accommodation, or other substantive relief until further order of this Court.

5.

Plaintiff is WARNED that failure to comply with this Court’s directives may result in the
imposition of sanctions, including the dismissal of this action with prejudice.

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6.

Plaintiff is WARNED that any future filings must be legible.

7.

Defendant’s Motion to Dismiss (Docket No. 32) is DENIED without prejudice to its
renewal.

8.

The Clerk shall reissue a summons with respect to defendant Bertucci’s and shall send to
plaintiff the reissued summons, a copy of the Amended Complaint (Docket No. 19), a
copy of the Memorandum and Order (Docket No. 27), and a copy of this Memorandum
and Order.

9.

Plaintiff is directed to serve those documents on defendant Bertucci’s in accordance with
Rule 4 of the Federal Rules of Civil Procedure and file Proof of Service within 30 days of
the date of this Memorandum and Order.

10.

If directed to do so by the plaintiff, the United States Marshals Service shall effect
service of process as directed, and shall advance the costs of service.

So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: September 11, 2013

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