Upshaw et al v. James et al
Filing
9
OPINION AND ORDER granting 7 Motion to Dismiss Complaints With Prejudice and denying 7 Cross Motion for for Cost, Sanctions and Punitive Penalties. Signed by Judge William K. Sessions III on 1/29/2014. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
SOLOMON UPSHAW
U TRANSPORT CORP,
Plaintiffs,
v.
MORGAN JAMES and
JOAN RICHARDS
Defendants.
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Case No. 2:12-cv-00265-wks
OPINION AND ORDER
(Docs. 7, 8)
Plaintiff Solomon Upshaw, proceeding pro se, and
Plaintiff U Transport Corp bring this action against
Defendants Morgan James and Joan Richards, also both
appearing pro se. Defendants move to dismiss for
insufficient service of process, among other arguments, and
move for costs, sanctions, and punitive penalties against
plaintiffs (Doc. 7).
For the reasons set forth below,
Defendants’ motion to dismiss is GRANTED, and Defendants’
motion for costs, sanctions, and punitive penalties is
DENIED.
FACTUAL BACKGROUND
Plaintiff Upshaw and Defendants James and Richards are
neighbors in Mattapan, Massachusetts.1
Upshaw purports to
be president of co-plaintiff U Transport Corp. Litigation
between Upshaw and James dates back to 2000, related to a
dispute over parking in the right-of-way in front of their
adjoining properties. Since then, numerous actions have been
filed in state and Federal Courts in Massachusetts.
Here, Plaintiffs allege: 1) execution of a small claims
judgment issued by the Boston Municipal Court Department of
the Commonwealth of Massachusetts Trial Court, Docket No.
2010 SC 003068, deprived Plaintiffs of property “without a
judicial trial and due process of law”; and 2) Defendants
used a “false document” regarding an “unregistered truck” in
order “to obtain an easement” in a Commonwealth of
Massachusetts Appeals Court decision, Docket No. 04-p-751
(Doc. 1).
1
Notably, Plaintiffs do not allege that any of the
parties are residents or have a principal place of business
in the State of Vermont, nor do they allege that any of the
acts or omissions giving rise to any claims or defenses
occurred in the State of Vermont. Plaintiffs’ mailing
address is in Cape Neddick, Maine, and Defendants’ mailing
address is in Mattapan, Massachusetts.
DISCUSSION
I. Defendants’ Motion to Dismiss
At the outset, Defendants claim Plaintiffs did not
serve them with a copy of the complaint filed in this
matter, but instead served other documents that “do not
incorporate Morgan James and Joan Richards as defendants
within the caption heading of Case No.. 2:12-cv-00265-WKS
before this Court.” (Doc. 8-1 at 1). This issue arises under
Federal Rule of Civil Procedure 12(b)(5), providing for
dismissal for insufficient service of process, and Federal
Rule of Civil Procedure 4 (m).
Pursuant to Federal Rule of Civil Procedure 4, “[t]he
plaintiff is responsible for having the summons and
complaint served within the time allowed by Rule 4(m) and
must furnish the necessary copies the person who makes
service.”
Fed.R.Civ.P. 4(c). Rule 4(m) provides, “[i]f a
defendant is not served within 120 days after the complaint
is filed, the court...must dismiss the action without
prejudice against the defendant or order that service be
made within a specified time.” Fed.R.Civ.P. 4(m).
Plaintiffs filed the complaint in this matter on
November 26, 2012 (Doc. 1).
On July 15, 2013, after more
than 120 passed and plaintiffs had yet to file proof of
service, this Court ordered Plaintiffs to provide the Court
with proof of service on or before July 31, 2013 and warned,
“[f]ailure to do so will result in the dismissal of this
case.” (Doc. 5).
Defendants allege, and the Court hereby finds, that
Plaintiffs neither effected service of the complaint filed
in this case (Docket No. 2:12-cv-00265-wks), nor did they
effect service of a summons, as required by Rule 4.
Instead, on July 23, 2013, a constable served both
Defendants with a package of documents that did not include
true and accurate copies of the complaint filed on November
26, 2012 (Docs. 7-1, 7-2).
The documents subsequently filed by Plaintiffs on July
29, 2013, purporting to provide proof of service,
corroborate Defendants’ allegations that they were not
properly served.
The returns of service filed with the
Court (both dated July 23, 2013 and executed by “Joseph
Figler, Constable and Disinterested Person”)(Doc. 6 at 2)
attach pages of the same document (Doc. 6 at 3) Defendants
filed in support of their Motion.2
2
Additionally, the
A docket number appearing on the first page (Doc. 6
at 1) corresponds with the present case, but none of the
text resembles the text of the complaint actually filed in
this matter. Notably, the caption of the document served on
Court’s records show Defendants never received a summons,
which in-and-of-itself may constitute a fatal procedural
defect. See Barron v. Miami Executive Towers Assocs. Ltd.
P'Ship, 142 F.R.D. 394, 397 (S.D.N.Y.1992) (“actual receipt
of both the summons and the complaint is a base requirement”
of Rule 4).
Dismissal pursuant to Rule 12(b)(5) especially is
warranted where, as here, Plaintiffs were fully on notice of
the service requirement and nonetheless failed to observe
it. See, e.g., Cioce v. County of Westchester, 128 F. App’x.
181, 183 (2d Cir. 2005).
After more than 120 days passed
from the date of filing the complaint, this Court ordered
Plaintiffs to effect service and warned that failure to do
so would result in dismissal of the case (Doc. 5).
Plaintiffs clearly had notice of this Order, because they
then served it on Defendants along with the “complaint”
document (Docs. 7-1 at 3 and 7-2 at 2). Plaintiffs cannot
maintain an action if Defendants do not receive notice of
Defendants names WMB Construction, Inc. and William Brandon, Jr.
as Defendants (Doc. 6 at 1, Doc. 7-1 at 4, Doc. 7-2 at 3). On
April 9, 2013 and September 12, 2013, respectively, this Court
dismissed two actions brought by Plaintiffs against WMB
Construction, Inc and William Brandon, Jr. for lack of personal
jurisdiction and failure to state a claim. See Upshaw v. WMB
Construction, Inc., No. 2:12-cv-00181, 2013 WL 1430462 (D.Vt.
Apr. 9, 2013) and Upshaw v. WMB Construction, Inc., No. 2:13-cv76, 2013 WL 4874169 (D.Vt. Sept. 12, 2013).
the claims against them as set forth in the complaint.
Therefore, Defendants Motion to Dismiss for insufficient
service of process is hereby GRANTED.
II. Defendants’ Motion for Costs and Sanctions
Defendants request an award of costs, sanctions, and
“punitive penalties” in connection with their motion to
dismiss, arguing Upshaw has “engaged in a pattern of abuse
of the legal process in numerous frivolous and unfounded
litigations against Morgan James commencing in 2000 at great
expense and deprivation of quality time.” (Doc. 7 at 9).
Indeed, this Court’s review of the orders issued in the
litany of matters cited by Defendants indicates considerable
hardship on Defendants’ part.
Nonetheless, Defendants do
not claim to have incurred attorneys’ fees or court costs in
the present matter, for which they have been compensated
previously in other matters.
Therefore, Defendants’ motion
for costs and sanctions is DENIED.
CONCLUSION
For the reasons set forth above, Defendants’ motion to
dismiss is GRANTED, and the case is dismissed without
prejudice.
DENIED.
Defendants’ motion for costs and sanctions is
Dated at Burlington, in the District of Vermont, this
29th of January, 2014.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court
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