Lu v. Trustees of Tufts College

Filing 24

Judge Indira Talwani: For the reasons set forth in the attached Order: 1. Defendant Trustees of Tufts College's Motion for Extension of Time to Respond to Plaintiffs Complaint 23 is ALLOWED. Tufts shall file its response to Plaint iff's Complaint 1 by August 17, 2018. 2. Relator's Motion for Full Disclosure 22 is DENIED as frivolous. 3. If Plaintiff seeks to proceed against Defendant Gambia-Ruiz, he shall serve and file a proof of service by August 31, 2018, unless Gambia-Ruiz waives service by filing a response to the Complaint [#1]. (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA, ex rel. )
FRIEDRICH LU,
)
)
Plaintiff,
)
)
v.
)
)
MARIELENA GAMBOA-RUIZ and
)
TRUSTEES of TUFTS COLLEGE
)
)
Defendants. )

Civil Action 1:18-cv-10105-IT

ORDER ON PENDING MOTIONS AND SERVICE ISSUES
August 3, 2018
TALWANI, D.J.
On January 18, 2018, Plaintiff Friedrich Lu filed his Complaint [#1] against Defendants
Trustees of Tufts College (“Tufts”) and Marielena Gamboa-Ruiz, asserting claims including a
claim under the False Claims Act, 31 U.S.C. § 3730, et. seq. Plaintiff also filed a Motion to
Seal [#2]. The court granted the Motion to Seal [#2], sealed the case, and delayed issuance of
summonses pending the United States’ decision on whether to intervene. See Order [#6].
On April 9, 2018, the United States filed notice that it declined to intervene in this case,
see Notice of Election to Decline Intervention [#11], and the following day, April 10, 2018,
the court ordered the action unsealed, directed the clerk to issue summonses, and directed
Plaintiff to serve the summons and Complaint [#1] upon each Defendant. See Order [#12]. The
docket reflects that the case was unsealed, summonses were issued, and copies of the
Complaint [#1], Order [#12] and summonses were mailed to Plaintiff that same day. See
Docket Entry #14.
Based on the April 10, 2018, issuance of the summonses, service should have been

completed by July 9, 2018. According to Tufts, Tufts received the summons and a copy of the
Complaint [#1] on July 11, 2018. Def. Trustees of Tufts College’s Mot. for Extension of Time
to Respond to Pl.’s Compl. ¶ 5 [#23]. Tufts’ motion does not contest the timeliness of service,
but does seek additional time to prepare briefing in support of a motion to dismiss. Id. ¶ 9
[#23]. As grounds, Tufts states that the Complaint [#1] raises multiple causes of action under
federal and state law claims and that Tufts requires additional time to properly brief these
claims. Id. ¶ 8 [#23]. The court finds good cause for the extension, and Tufts’ time to respond
to the Complaint [#1] is extended to August 17, 2018.
The court turns next to Relator’s Motion for Full Disclosure [#22]. Some background is
needed to address this motion. One week after the court issued the Order [#12] unsealing the
case and directing Plaintiff to serve the Defendants, Plaintiff filed a document entitled
Relator’s Response to Apr 10, 2018 Order [#15]. In that filing, Plaintiff stated that he had been
unable to find the case on the public docket. That filing sought no particular court action.
On May 21, 2018, Plaintiff filed his Motion to Reset the Clock [#16]. In that filing,
Plaintiff noted that the court had “not acted on [his earlier response], though the court need
not, for it was not a motion.” Id. Plaintiff’s May 21 filing sought additional time for service
because Plaintiff was unable to find the case on the public docket on April 16, 2018. The court
denied the motion, as Plaintiff made no claim that he would be unable to timely serve the
summons and complaint in the remaining six weeks of the service period. Elec. Order [#17].
The court also permitted Plaintiff to file a motion for a 30 day extension of time to complete
service “[i]n the event that Plaintiff is unable to serve Defendants with the summons and
complaint by July 10, 2018.” Id.
On July 10, 2018, Plaintiff filed a Motion to Extend Time to Serve [#19]. Plaintiff did
not state that he had made any attempt to serve Gamboa-Ruiz before July 10, or provide any
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cause for failing to complete service, despite the requirements of Federal Rules of Civil
Procedure 4(m)-(l) and District of Massachusetts Local Rule 4.1(m), which require a plaintiff
requesting additional time for service to demonstrate good cause for the failure to serve within
the 90-day period. Accordingly, the motion was denied. Elec. Order [#20]. The denial again
was without prejudice, but Plaintiff was directed that any motion for additional time for
service shall be supported by a showing of good cause. Id.
Rather than explaining any grounds for the delay in service, Plaintiff expressly declined
to file such a motion, and instead demands “full disclosure” regarding the court’s unsealing of
the record, charging “one irregularity after another.” Relator’s Mot. for Full Disclosure [#22].
The court has no information as to why Plaintiff’s search of the docket at the court’s public
terminal was unsuccessful, and has identified no irregularities by the court or the clerk’s
office. It may be that Plaintiff typed Defendant’s name incorrectly or that he is mistaken as to
the date of the search: April 16, 2018, was a court holiday so no search could have been
conducted at the court’s public terminal on that date. In any event, Relator’s Motion for Full
Disclosure [#22] is denied as frivolous.
Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90
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.” The court hereby gives Plaintiff notice that the
action will be dismissed as to Defendant Gambia-Ruiz if proof of service is not filed by
August 31, 2018.1

1

In its motion, Tufts asked for the same response date for Defendant Gamboa-Ruiz. Def.
Trustees of Tufts College’s Mot. for Extension of Time to Respond to Pl.’s Compl. at 2 [#23].
Defendant Gambia-Ruiz, if she so elects, may of course waive service of process and respond
together with Defendant Tufts to avoid further delays in this action.
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Accordingly, for the foregoing reasons,
1. Defendant Trustees of Tufts College’s Motion for Extension of Time to Respond to
Plaintiff’s Complaint [#23] is ALLOWED. Tufts shall file its response to Plaintiff’s
Complaint [#1] by August 17, 2018.
2. Relator’s Motion for Full Disclosure [#22] is DENIED as frivolous.
3. If Plaintiff seeks to proceed against Defendant Gambia-Ruiz, he shall serve and file
a proof of service by August 31, 2018, unless Gambia-Ruiz waives service by filing
a response to the Complaint [#1].
IT IS SO ORDERED.
Date: August 3, 2018

Indira Talwani__________
United States District Judge

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