Bibby v. Petrucci et al

Filing 102

OPINION AND ORDER granting 100 Motion for Summary Judgment and dismissing Plaintiff's claims. So Ordered by Judge William E. Smith on 7/22/10. (Jackson, Ryan)

Bibby v. Petrucci et al

Doc. 102

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND ___________________________________ PETER J. BIBBY, ) ) ) Plaintiff, ) ) v. ) ) DAVID PETRUCCI, et al., ) ) Defendants. ) ___________________________________)

C.A. No. 07-463 S

OPINION AND ORDER WILLIAM E. SMITH, United States District Judge. Presently before the Court is a Renewed Motion for Summary Judgment submitted by defendants David Petrucci and the City of Providence ("Defendants"), arguing that Plaintiff Peter Bibby's ("Plaintiff") claims are time-barred. On December 7, 2009, the

Court granted Plaintiff's Rule 60 Motion for Relief from an Order and vacated an earlier decision granting Defendants'

Motion for Summary Judgment.

The Court granted relief to allow

further discovery with respect to a complaint filed by Plaintiff in Rhode Island Superior Court in 2007. After additional investigation, (Mem. and Order at 10.) now renew their

Defendants

Motion for Summary Judgment. the Court grants

For the reasons discussed below, Renewed Motion for Summary

Defendants'

Judgment.

Dockets.Justia.com

I.

Background In the Memorandum and Order decided in December, 2009

("December Memorandum"), the Court vacated its previous order which granted summary judgment for Defendants on the basis of the apparent tardiness of Plaintiff's complaint. (December

Memorandum at 8.)

Plaintiff had filed his complaint after the

three-year statute of limitations governing his claims expired. As the Court of noted, however, Laws it had failed to consider Statute") the on

effect

R.I.

Gen.

9-1-22

("Savings

Plaintiff's claims before granting summary judgment. Savings Statute, Plaintiff's claims may not have

Under the been time-

barred because: [i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, . . . may commence a new action upon the same claim within one year after the termination. R.I. Gen. Laws § 9-1-22 (1956). In granting Plaintiff's Motion for Relief from an Order, the Court directed the parties to conduct further discovery in order to clarify the present status of Plaintiff's state court complaint. The Court sought to "determine when and whether

Plaintiff's Superior Court action was ever terminated, and if so [whether] in a manner qualifying him for the saving statute." (December Memorandum at 10.)
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Anticipating

the

results

of

discovery, the Court articulated four potential scenarios and its likely responses. (See id. at 10-12.) While the additional

discovery conducted by the parties failed to clarify when the state court action commenced, the parties sufficiently augmented the record to enable the Court to address the effect of the Savings Statute and to resolve Defendants' Renewed Motion for Summary Judgment. II. Discussion The Savings Statute neatly divides into a two-part test for determining whether a plaintiff may re-file an action terminated for a reason other than decision on the merits, within a year of termination. See Wolf v. S.H. Wintman Co., 161 A.2d 411, 413 (R.I. 1960) (supporting principle that Savings Statute permits re-filing when claim decided other than on its merits). In order for the Savings Statute to apply, the prior complaint must have been (1) timely commenced and (2) terminated in a manner other than "voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits." R.I. Gen. Laws § 9-1-22. Both prongs are dispositive

elements of the rule; failure to satisfy either prong renders the Savings Statute fourth if the inapplicable. scenario state As this in Court the stated December timely

regarding Memorandum,

the even

outlined court action

had

been

commenced, if it remained active:
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the federal court action would presumably be dismissed as untimely unless and until the Superior Court action is terminated in a manner contemplated by § 9-1-22. Whether or not the federal court action could be refiled would depend on the reasons for termination in the Superior Court and the time of its filing. (December Memorandum at 12.) While the parties failed to resolve the issues surrounding the timely commencement of the Superior Court action, they

established that it never terminated and remains on the state court docket. (See Defs.' Mem. in Supp. of Renewed Mot. for As long as the state federal action is

Summ. J. at 4; Pl.'s Aff. Exhibit B.) court action remains pending,

Plaintiff's

premature under the Savings Statute.

Because the federal action

commenced after the limitation period for bringing the claims lapsed, unless and until the state court action terminates in a manner specified by the Savings Statute ­ thereby reopening the filing window - the federal action is untimely and cannot be brought. (December Memorandum at 12.)

Under the summary judgment standard, "summary judgment is appropriate when the record, viewed in the light most favorable to the party opposing the motion, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Marr Scaffolding Co. v.

Fairground Forms, Inc., 682 A.2d 455, 457 (R.I. 1996).

There is

no dispute of material fact that Plaintiff's state court action

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remains pending.

Consequently, the pending state court action

bars application of the Savings Statute and prevents Plaintiff from bringing this federal action at this time. Therefore, as in the fourth scenario outlined in the

December Memorandum, Plaintiff should pursue the state action and [i]f the action is terminated for a reason enumerated by R.I. Gen. Laws § 9-1-22, . . . then Plaintiff would not be able to avail himself of the additional year to file that is offered by the statute. If the termination is for any other reason, then Plaintiff would have an additional year from that date in which to re-commence his action. (December Memorandum at 12.) III. Conclusion For the reasons stated above, Defendants' motion is GRANTED and Plaintiff's claims are hereby dismissed. IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith United States District Judge Date: July 22, 2010

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