Martello v. Federal Bureau of Prisons et al
Filing
46
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered denying 28 Motion to Dismiss for inadequate service of process and noting formal dismissmal of Count IV against unnamed government employees. (Woodlock, Douglas)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
NICHOLAS MARTELLO,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
CIVIL ACTION NO.
13-13089-DPW
MEMORANDUM AND ORDER
September 25, 2015
A former prisoner filed this lawsuit against the Federal
Bureau of Prisons, a federal employee and other unknown
defendants pursuant to the Federal Tort Claims Act. I granted
the motion to substitute the United States for the named
defendants as the proper party.
The United States has now moved
to dismiss the case for inadequate service of process pursuant
to Fed. R. Civ. P. 12(b)(5).
I. BACKGROUND
Plaintiff Nicholas Martello, who had earlier been convicted
of federal drug charges, was returned to the custody of the
Federal Bureau of Prisons (the “BOP”) on February 9, 2012 for
violation of his conditions of supervised release.
Before his 2012 incarceration, while not in custody, Mr.
Martello underwent surgery to repair his left patella tendon,
1
which involved the implantation of orthopedic hardware (a wire).
During his subsequent incarceration, he complained that the wire
holding the tendon snapped and he was in “unbearable pain.”
In
May 2012, he was transferred to the Federal Correctional
Institution in Otisville (“Otisville”) where he was eventually
examined by Dr. Diane Sommer.
On September 25 and October 9,
2012, X-ray evaluations confirmed that the hardware had failed.
The wire was successfully removed on December 7, 2012.
Mr.
Martello stayed at Otisville until January 22, 2013, at which
time he was released from BOP custody.
Mr. Martello filed an administrative tort claim received by
the Northeast Regional Office of the BOP on December 5, 2012.
He alleged that employees of the BOP were negligent in failing
to address his medical needs.
of $10,000.
He sought damages in the amount
The claim was denied on June 4, 2013.
Upon this
denial, Mr. Martello had the right to file a suit regarding his
claim in an appropriate court within six months of the date of
the response. See 28 C.F.R. § 543.32 (g).
Mr. Martello did not exercise this right until December 4,
2013, the last day before the six months limitation period
expired.
He brought this action pursuant to the Federal Tort
Claims Act, claiming that he received inadequate medical care
during this incarceration.
Specifically, he alleged four
claims: Count I against the BOP for negligence; Count II against
2
Dr. Sommer for negligence; Count III against Dr. Sommer for
violations of his civil rights; and Count IV against unknown
defendants for negligence.
Mr. Martello served his complaint via Certified Mail on the
Federal Bureau of Prisons in Washington, D.C. on February 3,
2014 and on Dr. Sommer on February 4, 2014.
He served the
United States Attorney’s Office on April 29, 2014.
He did not
serve the Attorney General with this original complaint.
On June 24, 2014, the defendants moved to substitute the
United States as the proper defendant to plaintiff’s negligence
claims.
While that motion was pending, defendants also moved to
transfer the case to the Southern District of New York.
On
December 1, 2014, I denied the motion to transfer but granted
the motion to substitute the United States as the proper party
for Count I and Count II.
On February 24, 2015, I dismissed
Count III pursuant to the parties’ stipulation of dismissal.1
On February 2, 2015, over a year after Mr. Martello
initiated this litigation, the government moved to dismiss for
insufficient service of process with respect to Count I and
Count II pursuant to Fed. R. Civ. P. 12(b)(5).
Mr. Martello
filed his opposition on February 23, 2015, contending that he
1
As a matter of formality, it should be made explicit that Count
IV against unknown defendants should have been dismissed as
well. I will do so in connection with this Memorandum and
Order.
3
timely served the United States after it became a party to the
suit.
He again served the United States Attorney’s Office via
certified mail on March 12, 2015.
The Office of Attorney
General was served for the first time on March 17, 2015 by
certified mail.
II. LEGAL STANDARD
This motion to dismiss for insufficient service of process
implicates four different rules that govern service of process
in this Court.
Fed. R. Civ. P. 4(i) concerns service of process on the
United States and its agencies, corporations, officers or
employees. The rule provides, in pertinent part:
(1) United States. To serve the United States, a party
must:
(A)(i) deliver a copy of the summons and of the
complaint to the United States attorney for the district
where the action is brought--or to an assistant United
States attorney or clerical employee whom the United
States attorney designates in a writing filed with the
court clerk--or
(ii) send a copy of each by registered or
certified mail to the civil-process clerk at the United
States attorney’s office
(B) send a copy of each by registered or certified
mail to the Attorney General of the United States at
Washington, D.C.; and
(C) if the action challenges an order of a nonparty
agency or officer of the United States, send a copy of
each by registered or certified mail to the agency or
officer.
(2) Agency; Corporation; Officer or Employee Sued in an
Official Capacity. To serve a United States agency or
corporation, or a United States officer or employee sued
4
only in an official capacity, a party must serve the
United States and also send a copy of the summons and of
the complaint by registered or certified mail to the
agency, corporation, officer, or employee . . .
(4) Extending Time. The court must allow a party a
reasonable time to cure its failure to:
(A) serve a person required to be served under Rule
4(i)(2), if the party has served either the United States
attorney or the Attorney General of the United States;
. . .
The timing of service of process is governed by Fed. R.
Civ. P. 4(m), which states, in relevant part:
If a defendant is not served within 120 days after the
complaint is filed, the court--on motion or on its own
after notice to the plaintiff--must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 6(b) provides general guidance regarding
extensions of time for any act which “may or must be done within
a specified time.”
It allows the court to extend the time for
good cause “on motion made after the time has expired if the
party failed to act because of excusable neglect.” Id.
Finally, Local Rule 4.1 also addresses the issue of
extension of time for service of process. It states, in relevant
part:
(b) Counsel and parties appearing pro se who seek to
show good cause for the failure to make service within
the 120 day period prescribed by Fed. R. Civ. P. 4(m)
shall do so by filing a motion for enlargement of time
under Fed. R. Civ. P. 6(b) together with a supporting
affidavit. If on the 14th day following the expiration
of the 120 day period good cause has not been shown as
5
provided herein, the clerk shall forthwith
automatically enter an order of dismissal for failure
to effect service of process, without awaiting any
further order of the court. The clerk shall furnish a
copy of this local rule to counsel or pro se
plaintiffs, together with the summons, and delivery of
this copy by the clerk will constitute the notice
required by Rule 4(m) Federal Rules of Civil
Procedure. Such notice shall constitute the notice
required by Fed. R. Civ. P. 4(m). No further notice
need be given by the court.
III. DISCUSSION
A.
Plaintiff’s Failure to Effect Timely Service on the
United States
The threshold question is whether Mr. Martello timely
served the United States.
The government argues that Mr.
Martello failed to serve the United States properly before the
expiration of the 120-day period and I must agree.
Rule 4(i)(2) is clear about how a plaintiff can accomplish
service upon an agency or employee sued in an official capacity.
The plaintiff must, in addition to serving the agency or the
employee, serve the United States by delivering a copy of the
summons and of the complaint: (A) to the United States attorney
for the district in which the action is brought, to their
designated representative, or to the civil-process clerk at the
United States attorney’s office; and (B) to the Attorney General
of the United States at Washington, D.C. See, e.g., Gargano v.
I.R.S., 207 F.R.D. 22, 22-23 (D. Mass. 2002); Canini v. U.S.
Dep’t. of Justice Fed. Bureau of Prisons, No. 04 Civ. 9049(CSH),
6
2008 WL 818696, at *3 (S.D.N.Y. Mar. 26, 2008) (holding that
because the United States, not the Federal Bureau of Prisons,
was the proper defendant for this action, service upon only the
Bureau was not sufficient.)
In the present case, because the plaintiff filed his claims
against the BOP, a government agency, and Dr. Sommer, acting in
her official capacity at the BOP’s Otisville facility, Rule
4(i)(2) required the plaintiff to serve the United States on or
before April 3, 2014, when the 120 days period expired.
The
plaintiff, however, did not serve the United States Attorney
until April 29, 2014.2
And he did not serve the Attorney General
until March 17, 2015, almost a year after the time period for
service expired following the initiation of this litigation.
The plaintiff argues that Fed. R. Civ. P. 4(m) allows him
to make service on the United States within 120 days after it
was substituted as a party in the suit.
This is a
misunderstanding of Rule 4(m). It is true that “an amended
complaint that adds defendants to an action must be served upon
such defendants ‘within 120 days after the amended complaint is
filed.’” Brait Builders Corp. v. Mass. Div. of Capital Asset
Mgmt., 644 F.3d 5, 9 (1st Cir. 2011).
2
However, a case under the
He redundantly served the United States Attorney again on March
12, 2015.
7
Federal Tort Claims Act does not fall within that category.
The
plaintiff here did not amend his complaint to add the United
States as a new party; instead, the government was substituted
for the original parties as a matter of law because the
exclusive remedy provision under the FTCA, 28 U.S.C. § 2679,
renders the United States the proper party to the suit.
distinction is more than nominal.
This
Substituting the United
States as the proper party under the Federal Tort Claims Act is
different from adding a new party to an amended complaint.
First, Fed. R. Civ. P. Rule 4(i) specifically requires that
the plaintiff serve the United States even when the lawsuit is
initially filed against a federal agency officer or employee
acting in an official capacity.
Fed. R. Civ. P. 4(i)(2).
An
additional 120-day period after the United States is substituted
would undermine this rule.
It would give no incentive for a
plaintiff to serve the United States in a timely fashion, since
additional time for service of process could be granted when the
substitution takes place later.
See 28 U.S.C. § 2679(d).
In
allowing the substitution of the United States as a party, the
FTCA “was not intended to revive the claim of a neglectful
plaintiff.”
Roman v. Townsend, 224 F.3d 24, 28 (1st Cir. 2000).
The United States should already have been served.
Second, unlike the circumstances involved in adding an
entirely new party in an amended complaint, there is no need for
8
an additional 120-day period after the substitution of the
United States under the FTCA.
For amended complaints, the
principal reason for an additional 120 days to serve process is
to avoid a perverse result under the relation-back provisions of
Fed. R. Civ. P 15(c).
See, e.g., City of Merced v. Fields, 997
F. Supp. 1326, 1338 (E.D. Cal. 1998) (concluding that absent the
additional 120-day period, the relation-back doctrine would be
unduly restricted because it would only be of use when the
statute of limitations for a party's action expired between the
beginning and the end of the 120–day period for service).
Because substitution under the FTCA does not pose challenges
related to relation back, however, the basic 120 day period is
appropriate when, as here, effective notice to the United States
was available.
See generally Fed. R. Civ. P. 15(c)(2), Advisory
Committee Notes, 1966 Amendment (recognizing that substitution
of the United States should generally result in relation back
under the Federal Rules of Civil Procedure).
I find the time period for service of process on the United
States started to run on December 4, 2013 (the initial filing
date), not from the date when the United States was substituted
as a proper party under Federal Tort Claims Act. Accordingly, I
conclude that Mr. Martello failed to effect timely service upon
the United States.
9
B.
Discretionary Extension of Time Period for Service on the
United States Under the Federal Rules
Faced with the government’s motion to dismiss for
inadequacy of service, Mr. Martello requested in his opposition
an extension of the time period to make service on the United
States to March 13, 2015.
Fed. R. Civ. P. 4(i)(4),
Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. 6(b) independently give
the court discretion to extend the time period for service of
process.
However, Rule 4(i)(4) does not apply in the present
case because the plaintiff did not serve either the United
States Attorney or the Attorney General of the United States
before the expiration of the 120-day time period as required by
that provision.
Fed. R. Civ. P. 6(b) is also unavailable to
plaintiff, see infra note 2.
Consequently, I focus instead on
Rule 4(m).
In general, if it is established — as it has been here –
that proper service of process was not made within the 120–day
time period, Fed. R. Civ. P. 4(m) offers two avenues for
extending the prescribed time period for the service of a
complaint, one mandatory, one discretionary.
Cf. United States
v. Tobins, 483 F. Supp. 2d 68, 77 (D. Mass. 2007) (citing In re
Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)).
If the plaintiff
has met his burden of establishing “good cause” for the untimely
service, the court must extend the time for service.
10
Id. By
contrast, “[i]f there is no good cause, the court has the
discretion to dismiss without prejudice or to extend the time
period.” Id.
See also Fed. R. Civ. P. 4, Advisory Committee
Notes, 1993 Amendment (authorizing relief “even if there is no
good cause shown.”)
In considering whether good cause exists to justify an
extension, courts look at four factors:
[G]ood cause is likely (but not always) to be found when
the plaintiff’s failure to complete service in timely
fashion is a result of the conduct of a third person,
typically the process server, the defendant has evaded
service of the process or engaged in misleading conduct,
the plaintiff has acted diligently in trying to effect
service
or
there
are
understandable
mitigating
circumstances, or the plaintiff is proceeding pro se or
in forma pauperis.
McIsaac v. Ford, 193 F.Supp.2d 382, 383 (D. Mass. 2002) (quoting
4B WRIGHT & MILLER, FEDERAL PRACTICE
AND
PROCEDURE: Civil 3d § 1137, at
342 (2002)).
The plaintiff here does not appear pro se or in forma
pauperis.
service.
Nor has he shown diligence in trying to effect
He served the United States Attorney’s Office twenty-
six days after 120-day period expired (Doc. No. 7 and Doc. No.
8), and the Attorney General almost a year thereafter.
There is
no indication that these followed previous, unsuccessful
attempts at service.
He did not seek enlargement of time period
until he was forced to respond the defendant’s motion to dismiss
for inadequate service.
See McIsaac, 193 F.Supp.2d at 383
11
(“Last minute attempts at service, absent some explanatory
justification, do not establish good cause.”)
Moreover, nothing
in the record suggests that the United States or another third
party has engaged in misleading conduct that caused this delay.
Compare Benjamin v. Grosnick, 999 F.2d 590, 592 (1st Cir. 1993)
(good cause shown when plaintiffs relied on deputy sheriff’s
sworn representations about the return of service.)
The plaintiff suggests that his misunderstanding about the
substitution of the United States as the proper party should
constitute a good cause for the extension of the time period for
service.
That position is not compelling.
Courts should not
reward the party’s failure to pay attention to rules.
See,
e.g., Riverdale Mills Corp. v. U.S. Dep’t of Transp., 225 F.R.D.
393, 395 (2005) (“Neglecting to conduct adequate research and
comply with a relatively clear rule (i.e. Rule 4) does not
constitute good cause for failing to serve process.”)
Finding that Mr. Martello failed to demonstrate good cause
for his delay of service upon the United States, I am not
obligated to provide an extension, but still may do so.3
3
I note Fed. R. Civ. P. 6(b) allows the court to grant a motion
for additional time, made after the expiration of a deadline, if
the failure to act was the result of “excusable neglect.” But
for reasons similar to those regarding good cause under Fed. R.
Civ. P. 4(m) analysis, I find no excusable neglect here. The
Supreme Court has developed a four-factor test to determine
“excusable neglect”: the danger of prejudice to the opposing
party; the length of delay and its potential impact on judicial
12
Specifically, I will consider whether an extension of the time
period is appropriate in light of the following factors: actual
notice of the lawsuit by the party to be served; the possibility
of prejudice to the defendant if the case is preserved; and the
proceedings; the reason for the delay, including whether it was
within the reasonable control of the moving party; and whether
the moving party acted in good faith. Crevier v. Town of
Spencer, Civil Action No. 05-40184-FDS, 2007 WL 120237, at *4
(D. Mass. Jan. 12, 2007) (citing Pioneer Inv. Serv. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
In Hospital del Maestro v. N.L.R.B., 263 F.3d (1st Cir. 2001),
the First Circuit made clear that courts should focus on the
reason for the delay when making determinations under Rule 6(b):
The four Pioneer factors do not carry equal weight;
the excuse given for the late filing must have the
greatest import. While prejudice, length of delay, and
good faith might have more relevance in a closer case,
the reason-for-delay factor will always be critical to
the inquiry.... [A]t the end of the day, the focus
must be upon the nature of the neglect.
Id. at 174 (quoting Lowry v. McDonnell Douglas Corp., 211 F.3d
457, 463 (8th Cir. 2000)); see also Dimmitt v. Ockenfels, 407
F.3d 21, 24 (1st Cir. 2005) (“[A]mong the factors enumerated in
Pioneer, by far the most critical is the asserted reason for the
mistake.”) Subsequent case law has faithfully followed this
approach. See, e.g., Crevier, Civil Action No. 05-40184-FDS,
2007 WL 120237, at *4 (finding no excusable neglect when the
“plaintiff supplied the Court with no reason why service was not
at least attempted within the 120-day window of Rule 4(m), much
less why that delay was ‘excusable.’”)
Mr. Martello has submitted no explanation, other than
inattentiveness, for why he failed to effect service upon the
United States before the 120-day time period expired on April 3,
2014. Mere failure to follow the rules does not ordinarily
constitute excusable neglect. See Dimmitt, 407 F.3d at 24
(“[C]ounsels' inattention or carelessness, such as a failure to
consult or to abide by an unambiguous court procedural rule,
normally does not constitute ‘excusable neglect.’”) Without good
reason for delay, a discretionary extension for Mr. Martello to
effect service on the United States would not be proper under
Rule 6(b).
13
potential prejudice to the plaintiff if the case is dismissed.
See Riverdale Mills Corp., 225 F.R.D. at 395 (citing In re
Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)).
Each of these
three factors weighs in favor of granting an extension.
First, there is no doubt that the United States Attorney’s
Office received actual notice of the lawsuit when Mr. Martello
belatedly effected service on April 29, 2014 (Doc. No. 7 and
Doc. No. 8).
Yet it was not until over nine months later that
the United States moved to dismiss for inadequacy of service.
Second, nothing in the record reveals any cognizable
prejudice from belated formalization of service to the
government in defending the present case.
Indeed, the
government received actual notice at a relatively early stage,
has been defending the case since its notice of appearance on
May 14, 2014, and has been engaging in preliminary motion and
scheduling practice, all before raising its concerns about
service.
I cannot find — and the government could not
articulate at its hearing on this motion — any way the
government would be prejudiced in defending the case.
See
Riverdale Mills Corp., 225 F.R.D. at 395 (“[T]the FAA will not
be prejudiced by an extension of the time for service because
the FAA has long had notice of this dispute and has had ample
time, during several phases of litigation, to anticipate the
present appeal and develop a response.”); Tobins, 483 F. Supp.
14
2d at 80 (finding that defendant would not be subject to
prejudice because he received notice of the action and failed to
show any actual harm to his ability to defend the action as a
result of the delay in service).
Compare Lezdey, Civil Action
No. 12–11486–RWZ, 2013 WL 704475, at *5 (refusing to extend time
for service in part because it was unclear whether the defendant
had received actual notice or whether it would suffer prejudice
as a result of the extension).
Third, and most importantly, a dismissal of Mr. Martello’s
suit under Rule 4(m) would as a practical matter be with
prejudice since the six-month statute of limitations has lapsed.
This final point should be given substantial weight in
considering an extension under Rule 4(m), because the Rule was
specifically contemplated to provide for extensions in such
cases.
See Fed. R. Civ. P. 4(m), Advisory Committee Note, 1993
Amendments (“Relief may be justified, for example, if the
applicable statute of limitations would bar the refiled action .
. . .”)
The government, relying on McIsaac v. Ford, 193 F. Supp. 2d
382 (D. Mass. 2002) argues that the case must be dismissed even
though the statute of limitations has run out.
The plaintiff in
McIsaac filed suit two days before the expiration of the statute
of limitations but did not make service upon defendants before
the 120-day time period for service ran out.
15
McIsaac, 193 F.
Supp. 2d at 382.
On the last day for service, the plaintiff
asked the U.S. Marshal’s Office and the Suffolk County Sheriff’s
Office to make service, but was told that same day service would
be impossible.
Id. at 383.
At that point, McIsaac did not seek
an extension of time for service of process.
Id.
Thereafter,
Judge Stearns granted defendants’ motion to dismiss for
insufficient service, id. at 384, reasoning that an extension of
time, as exceptional relief, is appropriate only when the
extension is “sought prior to the expiration of Rule 4(m)’s
deadline, or where a pro se litigant can show confusion on his
part, either because of his unfamiliarity with the rules, or
because of his reliance on the misleading advice of others.”
Id.
Because McIsaac knew the rules, as demonstrated by his
attempts to effect service on the last day, Judge Stearns found
that he took the risk of dismissal with prejudice when he waited
“until two days before the expiration of the statute of
limitations to file his Complaint and then [did] nothing until
the last minute to have it served.”
Id.
With respect, I do not believe a bright-line test, such as
that promulgated in McIsaac, is warranted for a discretionary
extension under Rule 4(m).
Nothing in Fed. R. Civ. P. 4(m)
requires that the request for an extension be made before the
standard period for service has expired.
Rather, the Advisory
Committee Notes recognize the court’s discretion to provide
16
relief.
Crevier, Civil Action No. 05-40184-FDS, 2007 WL 120237,
at *5 (finding that McIsaac runs counter to the language of the
Advisory Committee notes to the 1993 amendment to Rule 4(m) and
thus granting extension when statute of limitations on all
plaintiff’s claims expired and there was little danger of
prejudice to the defendant).
Moreover, the purpose of the rules
for service is to “supply notice of the pendency of a legal
action, in a manner and at a time that affords the defendant a
fair opportunity to answer the complaint and present defenses
and objections.” Henderson v. United States, 517 U.S. 654, 672
(1996).
That purpose appears essentially to have been met in
this case.
Given that the United States received actual notice at the
outset of this litigation and no potential prejudice against
government has been suggested, it is not unfair to grant an
extension under Rule 4(m) to Mr. Martello, who, if the case is
dismissed, would be completely deprived of the opportunity to
seek relief for his alleged injuries.
See, e.g., Tobins, 483 F.
Supp. 2d at 81 (granting extension for service when the statute
of limitations has run out on nearly all claims and the
defendant, having received actual notice, demonstrated no
prejudice in defending the action).
Accordingly, I will
exercise my discretion to extend the service date here to March
17, 2015, when the plaintiff finally satisfied the Fed. R. Civ.
17
P. 4(i) protocol for service on the United States by at last
making service on the Attorney General.
Cf. Fed. R. Civ. P.
15(c)(2).
C.
Effect of Local Rule 4.1
The United States questions my discretion to extend the
period for service on the basis of Fed. R. Civ. P. 4(m) by
contending that this court’s Local Rule 4.1 mandates a dismissal
of the case.
In considering this contention, it will be useful
to restate the precise language of Local Rule 4.1(b).
(b) Counsel and parties appearing pro se who seek to
show good cause for the failure to make service within
the 120 day period prescribed by Fed. R. Civ. P. 4(m)
shall do so by filing a motion for enlargement of time
under Fed. R. Civ. P. 6(b), together with a supporting
affidavit. If on the 14th day following the expiration
of the 120 day period good cause has not been shown as
provided herein, the clerk shall forthwith
automatically enter an order of dismissal for failure
to effect service of process, without awaiting any
further order of the court.
The government asserts that the case must be dismissed
under Local Rule 4.1 because Mr. Martello failed to move for an
enlargement of time or show good cause within fourteen days
after the expiration of the 120-day service period.
The
government contends that the word “shall” in Local Rule 4.1(B)
imposes a mandatory, not a discretionary obligation upon the
court.
It is settled that a local rule carries the force of law
within its sphere.
United States v. Lopez-Matias, 522 F.3d 150,
18
153 (1st Cir. 2008).
But a local rule must be viewed in the
context of 28 U.S.C. § 2071(a), which both grants and constrains
the rule-making power of the courts by directing that “rules
shall be consistent with Acts of Congress and [federal rules of
practice, procedure and evidence].”
Id. (quoting Air Line
Pilots Ass’n v. Precision Valley Aviation, 26 F.3d 220, 224 (1st
Cir. 1994)); see also Fed. R. Civ. P. 83, Advisory Committee
Notes, 1985 Amendment (“Rule 83, which has not been amended
since the Federal Rules were promulgated in 1938, permits each
district to adopt local rules not inconsistent with the Federal
Rules by a majority of the judges.”).
The case law is split about whether Local Rule 4.1 should
be given controlling force in this context.
Compare Furtado v.
Napolitano, No. 09-11030-RGS, 2010 WL 577938, at *3 (D. Mass.
Feb. 12, 2010) (“Local Rule 4.1 makes clear that the 120-day
service period may not be extended where, as here, a plaintiff
fails to make a good cause showing for an extension within ten
days of the expiration of the 120-day deadline.”), with Tobins,
483 F. Supp. 2d at 81 (finding that the government was not
required to move for an enlargement of time under Local Rule 4.1
before the court could extend service deadlines).
See also
United States v. Lezdey, Civil Action No. 12–11486–RWZ, 2013 WL
704475, at *5 (D. Mass. Feb. 26, 2013) (finding no good cause
for insufficient process in part because the plaintiff never
19
sought an enlargement of time under Fed. R. Civ. P. 6(b) as
prescribed by Local Rule 4.1); Boldiga v. Federal Bureau of
Prisons, No. 14-12135-MBB, 2015 WL 3505261, at *8 (D. Mass. Jun.
3, 2015) (Local Rule 4.1 “mandates” dismissal if motion to
enlarge is not filed).
I decline to make the enforceability of Local Rule 4.1 a
categorical imperative, when, as here, it conflicts with a
national rule of procedure.
The Local Rule is essentially a
housekeeping provision warning parties that clerks are
authorized to enter dismissals when the period for service has
expired and no extension of time has been afforded.
More
specifically, the Local Rule only governs “those who seek to
show good cause for the failure to make service within the 120
day period.”
My decision does not rest on plaintiff’s showing
of good cause — indeed, I find he has failed to — but on my
discretionary authority to extend the time for service without
good cause.
The Local Rule’s instructions for how good cause
is to be shown do not apply when good cause need not be shown.
Accordingly, I will not dismiss the case simply on the ground
that Mr. Martello failed to move for an enlargement of time in
the manner required by Local Rule 4.1 when Local Rule 4.1 was
not in fact deployed by the clerk to dismiss the case before a
request for an extension was made.
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IV. CONCLUSION
For reasons set forth more fully above, I grant a
discretionary extension of time under Rule 4(m) to Mr. Martello
to effect service upon the United States by March 17, 2015.
Accordingly, the government’s motion to dismiss for insufficient
service is DENIED.
It is further noted that Count IV is now
formally dismissed against unnamed government employees.
/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
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