Chandler v. Central Vermont Public Service Corporation et al
Filing
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OPINION AND ORDER: denying 2 Motion to Disqualify Judge; granting 12 Motion to Dismiss; granting 16 Motion to Dismiss; denying 17 Motion for Default Judgment. This case is Dismissed without prejudice. Signed by District Judge J. Garvan Murtha on 3/21/2012. (wjf)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Charles Chandler,
:
:
Plaintiff,
:
:
v.
:
:
Central Vermont Public
:
Service Corporation,
:
Lawrence Reilly,
:
Scott Adnams,
:
James Volz, John Burke,
:
David Coen, Linley Sutherland,:
:
Defendants.
:
Case No. 1:11-cv-131-jgm
OPINION AND ORDER
(Docs. 2, 12, 16 and 17)
Plaintiff Charles Chandler, proceeding pro se, brings this
action claiming Defendants conspired to burn down his business
“thereby killing the Plaintiff and causing his business to close
permanently.”
(Doc. 1 at 4.)
As a result of this alleged
scheme, Chandler claims he is no longer “safe or secure” in his
home or business.
He also claims Defendants’ conduct constituted
unlawful monopolistic practices.
Id. at 5.
Pending before the Court are Defendants’ motions to dismiss
for ineffective service of process.
(Docs. 12, 16.)
Also before
the Court is Chandler’s motion to disqualify “Judge Murtha in the
above Docketed case,” and motion for a default judgment as to all
Defendants.
(Docs. 2, 17.)
For the reasons set forth below,
Defendants’ motions to dismiss are GRANTED, Chandler’s motions to
disqualify and for default judgment are DENIED, and this case is
DISMISSED.
I.
Motion to Disqualify
The Court will first consider Chandler’s motion to
disqualify.
Chandler contends that “[t]here is a history here
where preferential treatment is given to Attorneys in this Court
by the Presiding Judge Murtha and where Pro Se litigants are
discriminated against . . . .”
(Doc. 2 at 1.)
He claims his
previous cases before the Court were “disregard[ed] . . . as
frivolous no matter how serious the injuries,” and the Court is
motivated by its “unique relationship” with “the Defendants.”
Id.
For support, he cites the Court’s rulings in those cases,
including dismissals based upon judicial and prosecutorial
immunity.
Id. at 3.
Chandler further states “[i]t is unclear at
this point if Judge Murtha benefited [sic] financially from the
above defendant’s illegal acts,” but claims the Court “did
benefit in his career by protecting his friends/colleagues.”
Id.
Title 28, Section 455(a) requires a judge to “recuse himself
in any proceeding in which his impartiality might reasonably be
questioned.”
28 U.S.C. § 455(a).
“The district judge has
discretion in the first instance to determine whether to
disqualify himself.”
In re Basciano, 542 F.3d 950, 956 (2d Cir.
2008) (citation omitted).
In making this determination, the
judge must “carefully weigh the policy of promoting public
confidence in the judiciary against the possibility that those
questioning his impartiality might be seeking to avoid the
adverse consequences of his expected adverse decisions.”
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Id.
The test focuses on “whether an objective, disinterested
observer, fully informed of the underlying facts, would entertain
significant doubt that justice would be done absent recusal.”
Id.
The scope of 28 U.S.C. § 455(a) “is commonly limited to
those circumstances in which the alleged partiality stems from an
extrajudicial source.”
United States v. Carlton, 534 F.3d 97,
100 (2d Cir. 2008) (citation omitted). Accordingly, “opinions
formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible.”
Liteky v. United
States, 510 U.S. 540, 555 (1994); see LoCascio v. United States,
473 F.3d 493, 495-96 (2d Cir. 2007).
As a result, “[j]udicial
rulings alone almost never constitute a valid basis for a bias or
partiality motion.”
Liteky, 510 U.S. at 555.
Chandler alleges the Court’s prior rulings have been
motivated by friendship, professional gain, and perhaps financial
reward.
His accusations of improper motives, however, are based
entirely upon speculation.
See United States v. Lovaglia, 954
F.2d 811, 815 (2d Cir. 1992) (“Where a case . . . involves
remote, contingent, indirect or speculative interests,
disqualification is not required.”); Lamborn v. Dittmer, 726 F.
Supp. 510, 516 (S.D.N.Y. 1989) (holding that court need not
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accept fact “mere conclusory speculation” that judge had “special
relationship” with plaintiff’s counsel).
Furthermore, as set
forth above, the legal grounds for the Court’s rulings are not a
basis for recusal, and are instead reviewable on appeal.
United
States v. Sykes, 2008 WL 3049975, at *3 (W.D.N.Y. July 31, 2008)
(citing Liteky, 510 U.S. at 554).
The motion to disqualify (Doc.
2) is therefore DENIED.
II.
Motion to Dismiss State Defendants
The first motion to dismiss is submitted on behalf of
Defendants Scott Adnams, James Volz, John Burke, David Coen,
Linley Sutherland and the State of Vermont (collectively “State
Defendants”).1
The motion argues the State Defendants were not
properly served.
Specifically, the motion contends with respect
to the individual State Defendants that “service was made upon
unnamed officer managers, presumably at these defendants’ places
of business.”
(Doc. 12 at 1.)
This contention is supported by
the summonses returned to the Court, which indicate service upon
an “office mgr.” in each instance.
(Docs. 5-9.)
As to the State
of Vermont, Defendants argue service has not been made upon the
Office of the Attorney General, the authorized agent for service
under 12 V.S.A. § 5601(c).
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The State of Vermont is not named as a Defendant in
Chandler’s Complaint. Nonetheless, because the State has chosen
to identify itself as a Defendant, the Court will consider its
arguments for dismissal.
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Under Rule 4(e) of the Federal Rules of Civil Procedure,
service upon an individual must be made either in accordance with
state law, or by “(A) delivering a copy of the summons and of the
complaint to the individual personally; (B) leaving a copy of
each at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.”
Fed. R. Civ. P. 4(e).
Under Vermont law, the requirements are nearly identical, adding
only that service may be made by publication or “by leaving a
copy of the summons and of the complaint at the defendant’s
dwelling house or usual place of abode” upon a showing that
service cannot otherwise be made with due diligence and upon
order of the court.
Vt. R. Civ. P. 4(d)(1).
Chandler has not responded to the State Defendants’ motion.
Instead, he has moved for a default judgment, stating simply that
“[t]he Defendants were served by summons on the date the
Complaint was filed with this Court and as per Fed. R. Civ. P.
Rule 4.”
(Doc. 17 at 1.)
The Court finds the State Defendants have not been properly
served.
Summonses and copies of the Complaint were left with an
office manager rather than being personally served, delivered to
Defendants’ homes, or served in some other fashion that would
comply with either state or federal law.
Accordingly, the Court
must consider whether dismissal of the case is appropriate.
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Rule 4(m) provides that upon a showing of “good cause” for
failure to effect proper service within 120 days after the
Complaint is filed, a court “must extend the time for service for
an appropriate period.”
Fed. R. Civ. P. 4(m).
Courts also “have
discretion to grant extensions even in the absence of good
cause.”
Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir.
2007).
Such discretion should be exercised after a “weighing of
overlapping equitable considerations.”
Id. at 197; see also
Bender v. Gen. Servs. Admin., 539 F. Supp. 2d 702, 705 (S.D.N.Y.
2008).
Additionally, Chandler’s pro se status entitles him to a
certain degree of leniency insofar as service of process is
concerned, as courts generally favor resolution of such a case on
its merits rather than on the basis of a procedural technicality.
See Poulakis v. Amtrak, 139 F.R.D. 107, 109 (N.D. Ill. 1991).
Chandler has not made any attempt to show good cause.
Accordingly, the Court is not required to provide additional time
for service under Rule 4(m).
In exercising its discretion as to
whether to grant an extension of time, the Court notes it has
notified Chandler in at least two previous cases of his
obligations under Rule 4(m).
See Chandler v. Branchaud, 2011 WL
4068004, at *5 (D. Vt. Sept. 13, 2011); Chandler v. Fontaine,
2008 WL 4642251, at *2 (D. Vt. Oct. 15, 2008).
In this case, the
Court has already allowed one extension of time to demonstrate
service.
(Doc. 3.)
Furthermore, Chandler has been aware of the
State Defendants’ arguments with respect to service for several
6
months, and has not made any effort to cure the alleged
deficiencies.
In light of this record, the Court finds the equities do not
favor granting Chandler additional time in which to effect
service of process.
This case has been pending for nearly one
year, Chandler is aware of his obligations, the Court and the
parties have urged him to comply, and yet the State Defendants
have not yet been served in accordance with the law.
The motion
to dismiss (Doc. 12) is therefore GRANTED.
Without proper service, the Court never acquired
jurisdiction over the State Defendants.
See, e.g., Michelson v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279,
1282 (S.D.N.Y. 1989) (citing Mississippi Publ’g Corp. v.
Murphree, 326 U.S. 438, 444-45 (1946)) (court lacks jurisdiction
until defendants properly served with summons and complaint).
The claims against them are therefore DISMISSED without
prejudice.
III. Motion to Dismiss CVPS and Lawrence Reilly
The remaining Defendants, Central Vermont Public Service
Corporation (“CVPS”) and Lawrence Reilly, have similarly moved to
dismiss for insufficient service of process.
For both CVPS and
Defendant Reilly, the summonses returned to the Court indicate
that papers were left with a receptionist or clerk manager named
“Rick.”
(Docs. 10 and 11.)
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CVPS conducted an internal investigation as to whom Chandler
may have served, and has submitted affidavits for the Court’s
consideration.
See LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d
Cir. 1999) (court may look at affidavits to determine
jurisdiction); Mende v. Milestone Tech., Inc., 269 F. Supp. 2d
246, 251 (S.D.N.Y. 2003) (in considering sufficiency of process,
court may look beyond the pleadings).
The affidavit of Senior
Paralegal Melissa Stevens attests that there is no receptionist
stationed at the CVPS office entrance.
(Doc. 16-2 at 1.)
Moreover, although there are three CVPS employees named Richard,
they are not receptionists, were not served with papers, and are
not authorized to accept service of process.
(Docs. 16-3, 16-4
and 16-5.)
CVPS employee Amanda Beraldi has submitted an affidavit in
which she states that on the afternoon of May 19, 2011, she heard
“a loud banging on the door.”
floor.
(Doc. 16-6 at 2.)
She later saw documentation on the
That documentation, which included the
summons and Complaint in this case, was subsequently delivered to
paralegal Stevens.
(Doc. 16-2 at 2.)
Chandler has not countered these affidavits, which clearly
indicate that Defendant Reilly was not personally served.
As to
CVPS, simply sliding documents under a door does not constitute
service of a corporation.
See Vt. R. Civ. P. 4(d)(7)
(corporation must be served by delivering copy of summons and
complaint to an officer, director, managing or general agent,
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superintendent, or any other agent authorized by appointment or
by law to receive service of process); Fed. R. Civ. P. 4(e)(B)
(same).
Chandler has not shown good cause for his failure to
execute proper service, and for the reasons set forth above with
respect the State Defendants, the Court again finds that the
equities do not lie in Chandler’s favor.
The motion to dismiss
Defendants CVPS and Reilly is GRANTED, and the claims against
those Defendants are DISMISSED without prejudice.
IV.
Motion for Default Judgment
Finally, the Court considers Chandler’s motion for a default
judgment. (Doc. 17.)
The motion asserts that “[t]he Defendants
have failed to respond to the complaint as required by rule.”
Id. at 1.
Two paragraphs later, however, the motion references
defendants’ motions to dismiss, characterizing them as “false,
misleading, and [m]oot.”
Id.
A defendant may assert its defenses to a complaint in a
motion to dismiss filed pursuant to Rule 12(b) of the Federal
Rules of Civil Procedure.
for filing an answer.
The Rule 12 motion suspends the time
See Fed. R. Civ. P. 12(a)(4).
Moreover,
“a default judgment against an unserved defendant would be a
nullity subject to vacatur under Federal Rule of Civil Procedure
60(b).”
First Tennessee Bank Nat’l Ass’n v. Thause, 2011 WL
4543869, at *3 (E.D.N.Y. Sept. 28, 2011) (citing Wright, et al.,
Fed Prac. & Proc. Civil 2d § 2682); see also Kearney v. New York
State Legislature, 103 F.R.D. 625, 628 (E.D.N.Y. 1984) (service
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of process is jurisdictional, and invalid service of process
renders default judgment void).
Because the Court has determined
it has no personal jurisdiction over the Defendants absent proper
service, it cannot grant a default judgment.
Chandler’s motion
for default judgment (Doc. 17) is therefore DENIED.
Conclusion
For the reasons set forth above, Defendants’ motions to
dismiss (Docs. 12 and 16) are GRANTED, Chandler’s motions to
disqualify (Doc. 2) and for default judgment (Doc. 17) are
DENIED, and this case is DISMISSED without prejudice.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 21st
day of March, 2012.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
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