Ryan et al v. Krause et al

Filing 71

ORDER granting 6 Motion to Dismiss the Complaint; dismissing as moot 12 Motion for Leave to File a Second Amended Complaint; dismissing as moot 17 MOTION for Service Pursuant to Rule 4; dismissing as moot 66 Renewed Motion for Service Pursuant to Rule 4. So Ordered by Chief Judge John A. Woodcock, Jr. (MAINE) on 6/17/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
MARY RYAN
and THOMAS RYAN,
Plaintiffs,
v.
ROBERT D. KRAUSE, et al.,
Defendants.

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1:11-cv-00037-JAW

ORDER ON MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT AND MOTION TO DISMISS
The Court grants the Defendants’ motion to dismiss the pending complaint
because seventeen months after the filing of their complaint, the Plaintiffs have
failed to effect service of process on the Defendants in violation of Federal Rule of
Civil Procedure 4(m).
I.

STATEMENT OF FACTS
A.

Procedural Background

On February 8, 2011, Mary and Thomas Ryan (the Ryans) filed a complaint
consisting of 108 pages against 78 Defendants, alleging that they engaged in
criminal conduct involving the sexual exploitation and abuse of children and
vulnerable adults, and seeking a declaratory judgment and injunction against the
Defendants. Compl. (ECF No. 1). The Ryans filed a 291-page amended complaint
on February 23, 2011. Am. Compl. (ECF No. 4). On July 26, 2011, two of the
named Defendants, the Roman Catholic Bishop of Providence and the Most

Reverend Thomas J. Tobin (collectively the Bishop), moved to dismiss the Amended
Complaint. Defs. Roman Catholic Bishop of Providence and Most Reverend Thomas
J. Tobin’s Mot. to Dismiss (ECF No. 6) (Defs.’ Mot. to Dismiss). The same day, the
Ryans responded, Objection to Defs. Roman Catholic Bishop of Providence, a Corp.
Sole, and Thomas Tobin (ECF No. 7), and on August 11, 2011, they filed an
amended response and a request to strike. Pls.’ Am. Objection and Req. to Strike
Defs. Roman Catholic Bishop of Providence, a Corp. Sole, and Thomas Tobin’s Mot.
to Dismiss (ECF No. 10) (Pls.’ Am. Opp’n and Req.).
The Ryans also moved for leave to file a second amended complaint on
August 11, 2011. Pls.’ Req. for Leave of Ct. to Amend their Compl. (ECF No. 12).
On August 17, 2011, the Bishop objected to the Ryans’ motion.

Defs. Roman

Catholic Bishop of Providence and Most Reverend Thomas J. Tobin’s Objection to
Pls.’ Req. for Leave of Ct. to Amend their Compl. (ECF No. 15) (Defs.’ Opp’n to Pls.’
Mot. to Amend). The Ryans replied to the Defendants’ opposition on August 30,
2011. Pls.’ Resp. to Defs. Thomas Tobin and Roman Catholic Bishop of Providence,
a Corp. Sole’s Objection to Pls.’ Mot. for Leave of Ct. to Amend Compl. and Req. for
Extension Pursuant to Rule 6 (ECF No. 20) (Pls.’ Reply and Req.).
On August 17, 2011, the Ryans filed a motion for relief pursuant to Rule 4 of
the Federal Rules of Civil Procedure. Pls.’ Mot. for Relief Pursuant to Rule 4 (ECF
No. 17) (Pls.’ Rule 4 Mot.). On August 23, 2011, the Bishop responded to the Rule 4
motion. Defs. Roman Catholic Bishop of Providence and Most Reverend Thomas J.
Tobin’s Objection to Pls.’ Mot. for Relief Pursuant to Rule 4 (ECF No. 18) (Defs.’ Rule

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4 Opp’n). The Ryans replied on September 6, 2011. Pls.’ Resp. to Defs.’ Objection to
Pls.’ Req. for Relief Pursuant to Rule 4 (ECF No. 24) (Pls.’ Rule 4 Reply).1
The Ryans renewed their request for relief pursuant to Rule 4 on May 18,
2012. Pls.’ Renewed Mot. for Relief Pursuant to Rule 4 (ECF No. 66). On June 5,
2012, they filed a supplemental memorandum in support of their renewed motion.
Pls.’ Supplemental Mem. in Support of Relief Pursuant to Rules 4 and 15 (ECF No.
69) (Pls.’ Supplemental Mem.). On June 25, 2012, the Bishop filed a supplemental
memorandum.

Defs. Roman Catholic Bishop of Providence and Most Reverend

Thomas J. Tobin’s Supplemental Mem. (ECF No. 70) (Defs.’ Supplemental Mem.).
B.

The Pending Motions
1.

The Bishop’s Motion to Dismiss
a.

The Bishop’s Position

The Bishop’s first contention is that the Amended Complaint must be
dismissed because the Ryans have failed to serve their Amended Complaint. Defs.’
Mot. to Dismiss Attach. 1 Mem. in Support of Defs. Roman Catholic Bishop of
Providence and Most Reverend Thomas J. Tobin’s Mot. to Dismiss at 6 (Defs.’ Mem.).
The Bishop points out that Rule 4(m) requires plaintiffs to serve defendants within
120 days of the filing of the original complaint, and, as the Plaintiffs filed their
original Complaint on February 8, 2011, they were required to complete service by
June 8, 2011. Id. Instead of serving the Defendants, the Bishop says that the

After a series of judicial recusals, the Ryans moved to strike decisions from judges who later
recused themselves, see Mot. to Strike Magistrate McCafferty’s Report Recommendation and Judge
Laplante’s Orders (ECF No. 63), and on May 22, 2012, the Court granted the Ryans’ motion. See
Order on Mot. to Strike (ECF No. 67) (detailing the events leading to the Court’s Order).
1

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Ryans “made an eleventh hour attempt to obtain a waiver of service under Rule
4(d)(1) from some, but not all, of the named defendants.” Id. The Bishop argues
that under Rhode Island law, “delivering a request for waiver of service of the
summons to a defendant does not constitute service under Rule 4(m).” Id.
Next, the Bishop urges dismissal based on the failure of the Plaintiffs to file
“a short and plain statement of the claim showing that the pleader is entitled to
relief” as required by Rule 8. Id. at 7 (quoting FED. R. CIV. P. 8(a)(2)). Noting that
the Amended Complaint is 291 pages long and has 73 counts and 358 paragraphs,
the Bishop argues that the Amended Complaint “does extreme violence to Rule 8.”
Id. at 8.

The Bishop also contends that the Amended Complaint contains

“irrelevant, rambling, argumentative and incoherent statements” which are not
“simple and direct” as required by the Rule. Id. at 9 (quoting FED. R. CIV. P. 8(d)).
Third, the Bishop maintains that the Ryans are attempting to re-litigate
claims already resolved in Rhode Island state courts. Id. at 12. Asserting that the
resolution of these claims is subject to judicial notice, the Bishop asserts that
“[t]hese documents, as well as the Amended Complaint itself, conclusively
demonstrate that prior state court decisions preclude re-litigation of the claims and
issues in this matter.” Id. Furthermore, the Bishop says that “there is no question
but that the elements of res judicata are satisfied.” Id. at 15. Alternatively, the
Bishop contends that for this Court—as a federal trial court—to assert jurisdiction
over a matter that has been conclusively resolved by the Rhode Island state court
system would violate the Rooker-Feldman doctrine. Id. at 18.

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Fourth, the Bishop argues that the Ryans’ fraud and conspiracy allegations
“do not survive muster.” Id. Regarding the Ryans’ allegations against the Rhode
Island state courts, the Bishop says that “[t]o call these allegations ‘implausible’ is
to give them too much credit.” Id. at 19. Furthermore, the Bishop asserts that,
despite the voluminous nature of the allegations, they still fail to meet the
heightened pleading requirements for fraud. Id. at 19-22.
Fifth, pointing to Rhode Island’s three-year statute of limitations for sexual
abuse of a minor causes of action and the corresponding statute of limitations for
actions under 42 U.S.C. § 1983, the Bishop argues that the Ryans’ claims are timebarred. Id. at 22-23.
Finally, the Bishop observes that the Ryans are attempting to sue a number
of alleged sex offenders who allegedly perpetrated offenses upon other victims. Id.
at 23-24. The Bishop says that the Ryans have no standing to file claims on behalf
of others. Id.
b.

The Ryans’ Response and Request to Strike

For the most part, the Ryans use simple declarative sentences to contradict
the assertions in the Bishop’s motion to dismiss. See Pls.’ Am. Opp’n and Req. at 12 (“Plaintiffs filed a timely complaint against all of the defendants and have not
failed to state a claim for which relief can be granted; Plaintiffs have standing to
sue all of the defendants”).

Regarding the service of process issue, the Ryans

affirmatively state that they “properly and timely served defendants with a
NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A

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SUMMONS, two copies of a WAIVER OF THE SERVICE OF SUMMONS, a
stamped envelope and a copy of an AMENDED COMPLAINT pursuant to Rule 4 of
the Federal Rules of Procedure,” that “Defendants have a duty to avoid costs of
formal service of a summons,” and that the Defendants’ “decision to ignore
Plaintiffs’ good faith request to waive is not good cause.” Id. at 1-2 (capitalization in
original). Finally, the Ryans object to the Bishop’s language, asking the Court to
strike portions of the Bishop’s memorandum that describe their claims with
adjectives such as “incredulous” or “outlandish.” Id. at 2.
2.

The Ryans’ Motion to File Second Amended Complaint
a.

The Ryans’ Position

The Ryans explain that they wish to amend their First Amended Complaint
pursuant to Rule 15 because: (1) since filing the Complaint they have learned
further information about Francis X. Flaherty; (2) some of the named Defendants
have passed away; (3) errors in the First Amended Complaint require correction; (4)
Ms. Ryan sustained injuries in 2011, which limited her ability to complete the
“labor intensive task of amending the complaint”; and (5) the Plaintiffs “intended to
file a second amended complaint prior to serving defendants but were unable to
complete the task for the above-mentioned reasons.” Pls.’ Mot. to Amend at 1.
b.

The Bishop’s Response

The Bishop first responds that the Ryans’ motion to amend the complaint
does not comply with Rule 15 because it failed to attach the proposed Second
Amended Complaint. Defs.’ Opp’n to Pls.’ Mot. to Amend at 1. Second, the Bishop

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asserts that, even if properly attached, the Second Amended Complaint would be
subject to dismissal for the reasons set forth in the Bishop’s motion for dismissal of
the First Amended Complaint. Id. at 1-3.
c.

The Ryans’ Reply and Request for Extension

The Ryans posit a number of responses to the Bishop’s points. First, they say
that because the Bishop has not yet answered their First Amended Complaint, he is
not entitled to interfere with their filing a Second Amended Complaint. Pls.’ Reply
and Req. at 1-2. Second, noting that the Bishop has moved to dismiss their Second
Amended Complaint, they maintain that his assertion that he “has not been served
with notice of a pendency of a claim at this point is simply disingenuous.” Id. at 2.
Third, the Ryans insist that their motion for leave to file a Second Amended
Complaint complied with the requirements of Rule 15.

Id.

Fourth, the Ryans

accuse the Bishop of attempting to “bury” his motion to dismiss “within the
framework of [his] objection.” Id. at 3. Fifth, the Ryans see a contradiction between
the Bishop’s acknowledgement that their claims could be true and the Bishop’s
demand that the claims be dismissed. Id. at 4. Sixth, the Ryans plead “for justice,”
saying that leave to amend a pleading under Rule 15 should be freely given. Id. at
4-6. The Ryans also ask for an extension under Rule 6 to file a further response
because they had not yet obtained the Bishop’s documents and they had lost
electricity due to Hurricane Irene. Id. at 6.

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3.

The Ryans’ Motion for Relief Pursuant to Rule 4
a.

The Ryans’ Position

In their motion for relief pursuant to Rule 4, the Ryans request that the
Court order the United States Marshal to serve process on the Defendants, require
the Defendants to be responsible for any costs associated with the service, and grant
an extension of time to serve a summons on the Defendants. Pls.’ Rule 4 Mot. at 12. In support of the motion, they cite Rule 4(m) and Rule 4(c)(3). Id. at 1. They
also say that the Defendants “have a duty to avoid unnecessary expenses of serving
a summons,” that the Ryans’ “efforts to serve defendants were greeted with
resistance,” that the Defendants “failed to waive summons without good cause,”
that the Ryans “have been unable to locate some of the defendants,” and that the
Ryans “need additional time to serve defendants with a summons.” Id.
b.

The Bishop’s Response

In response, the Bishop points out that “[t]o date, none of the Defendants
have been served with a summons from Plaintiffs.”

Defs.’ Rule 4 Opp’n at 1

(emphasis in original). The Bishop says that the Ryans made “[n]o attempt to serve
Defendants (beyond the delivery of requests for waiver) pursuant to Rule 4(d)” and
that the Ryans’ request for service waiver is not a substitute for service under Rule
4(m). Id. at 1-2. The Bishop contends that the Ryans have failed to demonstrate
entitlement to relief from the service provisions of Rule 4. Id. at 2-4.
c.

The Ryans’ Reply

The Ryans dispute the Bishop’s contention that they have failed to serve the

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Defendants, stating that they “have, in fact, served defendants, including Tobin and
[the Roman Catholic Bishop of Providence], with a Notice of a Lawsuit and Request
to Waive Service of A Summons along with a copy of the Ryans’ Amended
Complaint, which serves the purpose of serving a summons.” Pls.’ Rule 4 Reply at 1
(emphasis in original). They say they were “compelled” to seek this relief because of
the Defendants’ resistance to their efforts to serve them. Id. at 2. The Ryans
accuse the Bishop of attempting to “obstruct justice.” Id. at 3. Lastly, they contend
that because Bishop Tobin is an officer of many of the Defendant corporations, he
has actual knowledge of the allegations in the lawsuit. Id. at 3-4.
4.

Supplemental Memoranda

On May 22, 2012, the Court granted the Ryans’ motion to strike most of the
orders issued by judges who later recused themselves. Order on Mot. to Strike (ECF
No. 67). By the date of that Order, however, considerable time had passed since the
parties had filed the pending motions and the Court therefore ordered the parties to
file supplemental memoranda to update the Court as to any relevant developments.
Id. at 9-10.
a.

The Ryans’ Supplemental Memorandum

In their supplemental memorandum, the Ryans say that on March 22, 2012,
the United States District Court for the District of Rhode Island amended its Local
Rule 5.1(b) under which the District had formerly listed federal process servers.
Pls.’ Supplemental Mem. at 1. The Local Rule, they say, now merely refers parties
to Federal Rule of Civil Procedure 4(c) for service requirements. Id.

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The Ryans also claim that “most recently, defendants William Robinson,
Francis Flaherty and Maureen McKenna-Goldberg have further violated plaintiffs’
Constitutional rights guaranteed by the First, Seventh, Tenth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 1, 2, 3, 5, 15,
21 and 23 of the Rhode Island Constitution” and the Ryans wish to incorporate
these new violations into the pending complaint. Id. at 2.
b.

The Bishop’s Supplemental Memorandum

The Bishop urges the Court to dismiss the Ryans’ actions with prejudice.
Defs.’ Supplemental Mem. at 2-3. Again the Bishop claims that the Ryans’ motion
for leave to amend is “procedurally deficient” because it “does not attach a proposed
Second Amended Complaint or explain what amendments would be made.” Id. at 3.
Furthermore, the Bishop observes that the Ryans have failed to act to cure the
procedural defects with their Complaint and have made no suggestion that they
intend to do so.

Id.

Finally, the Bishop says that the Ryans have failed to

demonstrate why they have been unable to complete service. Id. at 4-5.
II.

DISCUSSION
A.

The Bishop’s Special Appearance

In his multiple pleadings, the Bishop repeatedly emphasizes that he entered
a special appearance in order to file documents in this case. See Defs.’ Mem. at 5.
However, as Wright and Miller observe:
[T]echnical distinctions between general and special appearances have
been abolished and the rulemakers wisely concluded that no end is
accomplished by retaining those terms in federal practice.

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5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 1344 (3d ed. 2004). Federal Rule of Civil Procedure 12 abolished the distinction
between general and special appearances when the Federal Rules were adopted in
1938. See Fed. R. Civ. P. 12; Wright v. Yackley, 459 F.2d 287, 291 (9th Cir. 1972)
(“Rule 12 of the Federal Rules of Civil Procedure has abolished the formal
distinction between general and special appearances”); Davenport v. Ralph N.
Peters & Co., 386 F.2d 199, 204 (6th Cir. 1967) (“[t]here is no longer any necessity
for appearing specially”)); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139
F.2d 871, 874 (3d Cir. 1944) (“Rule 12 has abolished for the federal courts the ageold distinction between general and special appearances”).
At the same time, “the joining of defenses in a motion creates no waiver.”
W.H. Elliott & Sons Co. v. Nuodex Prods. Co., 243 F.2d 116, 118 (1st Cir. 1957); see
also Davenport, 386 F.2d at 204 (“all objections to jurisdiction, venue and
process . . . may be set up in a motion or answer to the merits without waiving any
of them”). In his motion to dismiss, the Bishop joins several defenses, including an
objection to the Ryans’ service of process.
B.

Service of Process
1.

Rule 4

The Ryans filed their original Complaint on February 8, 2011.2

Now,

In reviewing the question of service of process, though not raised by the parties, the Court
considered whether to apply 28 U.S.C. § 1915 as interpreted by the First Circuit in Laurence v. Wall,
551 F.3d 92, n.1 (1st Cir. 2008). Because the Ryans are not proceeding in forma pauperis, the
§ 1915(d) service mandate is not applicable to their case. See Order (ECF No. 3); Text Order Denying
as Moot Pls.’ Mot. for Leave to Proceed In Forma Pauperis in view of Pls.’ payment of the $350 civil
case filing fee (Mar. 14, 2011).
2

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seventeen months after this filing, they have not yet served the named Defendants
with the Complaint as required by Rule 4. The Ryans instead request relief from
the Court on the ground that they had timely served several of the Defendants with
both notice of the lawsuit and a request to waive service of summons.
Rule 4(d) allows a plaintiff to “notify . . . a defendant that an action has been
commenced and request that the defendant waive service of a summons.” FED. R.
CIV. P. 4(d)(1). If a defendant agrees to waive service of process, the defendant
merely signs the waiver and returns it to the plaintiff, and, “upon filing the waiver
with the court, the action proceeds as if a summons and complaint had been served
upon the defendant.” Evora v. Boyd, C.A. No. 07-322 S, 2008 U.S. Dist. LEXIS
58172, at *3 (D.R.I. June 17, 2008) (citing FED. R. CIV. P. 4(d)), aff’d 2008 U.S. Dist.
LEXIS 51426 (D.R.I. July 7, 2008).
Rule 4(d) encourages defendants to waive service by providing that a
defendant “has a duty to avoid unnecessary expenses of serving the summons.”
FED. R. CIV. P. 4(d)(1). If a defendant “fails, without good cause, to sign and return
a waiver requested by a plaintiff located within the United States, the court must
impose on the defendant (A) the expenses later incurred in making service; and (B)
the reasonable expenses, including attorney’s fees, of any motion required to collect
those service expenses.” FED. R. CIV. P. 4(d)(2).
In the event a defendant does not waive service of process, Rule 4(e) provides
the means for a plaintiff to effect service. FED. R. CIV. P. 4(e). Rule 4(m) establishes
the time limit for service either by waiver or under Rule 4(e) and also sets forth the

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penalties for failure to do so:
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. 4(m). The docket in this case establishes that the Ryans have not yet
actually served the Defendants.
2.

Service through Waiver

In response to the Bishop’s motion for dismissal for lack of timely service of
process, the Ryans propose that the waiver requests amount to actual service
because the Defendants have a duty to waive service of process and refused to do so
without good cause.

Pls.’ Am. Opp’n and Req. at 1-2.

They are incorrect. An

unanswered request for waiver of service of process is not a substitute for actual
service of process.

Instead, the Rules provide a disincentive for a defendant to

decline to waive service of process: Rule 4(d) requires the non-waiving defendant to
pay the cost of actual service of process and, if a lawsuit is required to collect this
amount, the defendant is required to pay the reasonable expenses of the plaintiff in
attempting to collect that amount. FED. R. CIV. P. 4(d)(2)(A), (B). The Rules also
provide an incentive by rewarding the defendant who accepts the waiver with more
time to answer the complaint. FED. R. CIV. P. 4(d)(3) (“A defendant who, before
being served with process, timely returns a waiver need not serve an answer to the
complaint until 60 days after the request was sent”). But the Rules do not allow a
plaintiff to treat an unreturned waiver request as a completed service of process.
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See Evora, 2008 U.S. Dist. LEXIS 58172 at *4 (observing that once no defendant
returned the waiver of service of summons, the plaintiff “was required to serve the
defendants with a copy of the amended complaint and summons in a manner
provided by Rule 4(e)”).
3.

Equitable Arguments against the Defendants

Although not squarely raised, the Ryans seem to be making an equitable
argument against the Defendants and, by extension, against dismissal.

The

argument runs that the Defendants were not acting in good faith by refusing to
waive service of process and therefore the Ryans are entitled either to an extension
of time to serve the Defendants or an order requiring the United States Marshal to
physically serve the Defendants.
However, “[t]he defendant is not required to consent to such a waiver” and “in
a situation where the defendant fails to agree with, or respond to, the request for
waiver, the plaintiff is still required to serve the defendant within the requisite
time.” Briggs v. Wall, CA 06-467T, 2007 U.S. Dist. LEXIS 75838 (D.R.I. Oct. 11,
2007); see Weldon v. Elec. Data Sys. Corp., 138 Fed. Appx. 136, 138 (11th Cir. 2005)
(refusing to apply doctrine of equitable tolling because defendant “bore no
responsibility to ensure that [the plaintiff] served the complaint in a timely and
proper fashion”).
It is not the “Court’s chore to serve the named defendants, nor do the
defendants have an obligation to waive service of process. It is solely the plaintiff’s
obligation to serve the defendants timely and properly.” Cooley v. Cornell Corr., 220

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F.R.D. 171, 172 (D.R.I. 2004) (internal citation and quotation marks omitted). The
legal obligation to effect service of process within the time period in the Rules thus
rests with the Ryans as Plaintiffs.

Here, seventeen months after the original

Complaint was filed, they have still served none of the Defendants with process.
4.

Good Cause

The Ryans maintain that even if they have failed to comply with the 120-day
requirement of Rule 4(e), they should still be allowed more time to complete service
of process because they have shown “good cause” within the meaning of Rule 4(m)
for such an extension.

Actually, the Ryans mistakenly apply the “good cause”

provision of Rule 4(d)(2), which subjects a defendant who fails “without good cause”
to return a signed waiver to the cost of later actual service of process, to the
provisions of Rule 4(m), which requires that the plaintiff must demonstrate “good
cause” for a failure to effect service within 120 days from the filing of the complaint.
In fact, the two provisions are dissimilar and should not be confused. Rule 4(d)
encourages the defendant to waive service and contains a specific sanction for
failure to do so; Rule 4(m) squarely places the burden on the plaintiff to
demonstrate some “good cause” for the failure to make timely service of process
within 120 days from the date the complaint was filed. FED. R. CIV. P. 4(d), (m).
The Advisory Committee describes what is meant by Rule 4(m)’s phrase,
“good cause”:
Relief may be justified, for example, if the applicable statute of
limitations would bar the refiled action, or if the defendant is evading
service or conceals a defect in attempted service.

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Fed. R. Civ. P. 4 advisory committee’s note on 1993 amendments. Generally, a
party meets Rule 4(m)’s “good cause” requirement as follows:
[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.
4B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND

PROCEDURE § 1137 (3d ed. 2002). “The burden of demonstrating the requisite good
cause rest[s] upon [the] plaintiff.” United States v. Ayer, 857 F.2d 881, 884-85 (1st
Cir. 1988). What constitutes good cause under Rule 4(m) is fact-specific and is left
to the sound discretion of the trial court. Id. at 885.
Here, despite the fact that the question of actual service has been before the
Court since July 12, 2011 when the Bishop filed the motion to dismiss, there is no
evidence that the Ryans have made any attempt to actually serve any of the
Defendants. For example, there is no evidence attributing the Ryans’ failure to
complete service to the conduct of a third person such as a process server. See
Benjamin v. Grosnick, 999 F.2d 590, 592 (1st Cir. 1993) (dismissal found abuse of
discretion when blame for failing to serve defendants rested with deputy sheriff).
There is also no evidence that—apart from declining to waive service of process—
the Defendants have attempted to evade service of process or have otherwise
engaged in misleading conduct. There is no evidence that the Ryans have diligently
tried to effect service of process or have presented other mitigating circumstances.

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Nor are the Ryans proceeding in forma pauperis.
What is left is the Ryans’ status as pro se litigants. Generally, courts are
lenient with pro se litigants, especially in their efforts to comply with more technical
rules. However, the mere fact that a party is pro se “is not automatically enough to
constitute good cause for purposes of Rule 4(m).” Pizarro v. Wall, C.A. No. 03-426S,
2004 U.S. Dist. LEXIS 8514, at *3 (D.R.I. Apr. 5, 2004). Though “a court may grant
some leniency to a pro se plaintiff,” the law still requires the self-represented
plaintiff to “diligently pursue[] his claim.” D’Amario v. Russo, 750 F. Supp. 560, 563
(D.R.I. 1990); see Kelley v. Carcieri, C.A. No. 07-341 ML, 2008 U.S. Dist. LEXIS
42501, at *4 (D.R.I. May 19, 2008) (“although courts afford some degree of leniency
to a pro se plaintiff who fails to effect service of process within the 120-day time
frame despite diligent efforts, there is no evidence of a diligent effort by plaintiff in
this case and neither pro se status nor the ignorance of the rules excuse timely
service”).
In D’Amario, Judge Lagueux addressed a situation where a pro se plaintiff
demonstrated good cause. After the defendants failed to acknowledge receipt of the
plaintiff’s mailed summons and complaint, the plaintiff hired a Michigan constable
who attempted to serve the defendants on numerous occasions and, when
unsuccessful, the plaintiff petitioned the Court for alternative service of process. Id.
at 563. The Court found “good cause” because the defendants had tried to evade
service and the plaintiff did not “sleep on his rights.” Id. By contrast, the same
District Court in another case concluded that good cause had not been satisfied

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when the pro se plaintiff’s ill health did “not establish the kind of excusable neglect
contemplated under the Rule.” Brenner v. City of Woonsocket, No. 92-157L, 1993
U.S. Dist. LEXIS 16764, at *6 (D.R.I. July 16, 1993).
Here, the Court concludes that the Ryans have failed to demonstrate good
cause. First, the length of time since the filing of the Ryans’ Complaint on February
8, 2011 totals about seventeen months. The law required service of process by June
2011; it is now July 2012 and the Ryans still have not served the Defendants. The
time period meriting dismissal is commonly far less than eighteen months. See DeLa-Cruz-Arroyo v. Comm’r of Soc. Sec., No. 97-2378, 1998 U.S. App. LEXIS 10558,
at *3 (1st Cir. May 27, 1998) (“We find the lack of any explanation, even now, for
appellant’s inactivity from June 18, 1997 until the case was dismissed on
September 26, 1997 dispositive”).
Second, the Ryans have ignored warnings that their case may be dismissed if
they do not effect service. It was on July 12, 2011 that the Bishop moved to dismiss
on the ground, in part, that service of process had not been accomplished. Defs.’
Mem. at 6-7.

Furthermore, on October 17, 2011, Magistrate Judge McCafferty

ordered that the Ryans show cause as to why the Defendants had not been served
and why the case should not be dismissed, Show Cause Order (ECF No. 36), and on
December 13, 2011, Magistrate Judge McCafferty issued a Recommended Decision,
recommending that the Court dismiss the Complaint because service had not been

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effected.3 Report and Recommendation (ECF No. 42). Yet, instead of attempting to
effect service, the Ryans simply stood their ground and argued that they have
actually served the Defendants by sending waiver forms, that the Defendants were
at fault for not waiving service, and that the Court should extend the time for them
to complete service of process. Although the Ryans claim, without specificity, that
they have been unable to locate some Defendants, they have not explained why they
have been unable to serve any of them over the last seventeen months nor have
they pointed to any effort to make service.

Furthermore, despite the fact that

nearly eleven months have lapsed since their August 17, 2011 request for extension
of time to serve the Defendants with process, the Ryans have not used this interval
to even start the process of actual service on the Defendants.
Finally, as the First Circuit has said, “the evident purpose of Rule 4[m] was
to compel parties and their counsel to be diligent in prosecuting causes of action.”
United States v. Ayer, 857 F.2d 881, 884 (1st Cir. 1988).

Here, now seventeen

months following the filing of their Complaint, the Ryans have not yet allowed the
Court to exercise jurisdiction over the Defendants by failing to serve them with a
summons and amended complaint. See Farm Credit Bank v. Ferrera-Goitia, 316
F.3d 62, 68 (1st Cir. 2003) (“[p]ersonal jurisdiction usually is obtained over a
defendant by service of process”). Simply put, the law requires more diligence on
the part of plaintiffs who wish to hale defendants before the Court. See D’Amario,
750 F. Supp. at 563 (“When the plaintiff has failed to make any attempt at service
On May 22, 2012, the Court ordered the Show Cause Order stricken. However, the Court
takes notice of the Show Cause Order not for its substance but for its placing the Ryans on notice
that they must actually serve the Defendants or provide good cause as to why they had not.
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during the 120-day period, it is likely that a court will find that no showing of good
cause for violation of the 120-day rule has been made”). “When presented with no
good reason for the lack of service, this Court cannot find cause to stave off
dismissal.” Pizzaro v. Wall, 2004 U.S. Dist. LEXIS 8514, at * 4 (D.R.I. Apr. 5, 2004).
III.

CONCLUSION
The Court GRANTS the Defendants Roman Catholic Bishop of Providence

and Most Reverend Thomas J. Tobin’s Motion to Dismiss (ECF No. 6) and
DISMISSES the Plaintiffs’ Amended Complaint without prejudice.4

The Court

DISMISSES as moot the Plaintiffs’ Request for Leave of Court to Amend their
Complaint (ECF No. 12), the Plaintiffs’ Motion for Relief Pursuant to Rule 4 (ECF
No. 17), and the Plaintiffs’ Renewed Motion for Relief Pursuant to Rule 4 (ECF No.
66).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 17th day of July, 2012
Although the Bishop requested that the Court dismiss the case with prejudice, the Court
declines to do so. First, Rule 4(m) contemplates that a dismissal for failure to comply with its time
requirements shall be without prejudice. FED. R. CIV. P. 4(m) (“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”). Second, a “with prejudice” dismissal could effectively block the Ryans from
returning to this Court with the same or similar complaints, which is too draconian a remedy for
their failure to effect timely service.
At the same time, having reviewed the Amended Complaint in this matter, the Court
reminds the Ryans that—if they decide to reinitiate their causes of action—Federal Rule of Civil
Procedure 8(a)(2) requires that a complaint contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Here, the Court is concerned
that the Amended Complaint, consisting of nearly three hundred pages, does not comply with the
letter and spirit of Rule 8 and if the Ryans elect to re-file and serve their causes of action, they would
be well-advised to tailor their allegations.
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