Morrison Mahoney Partners Tory Weigand,  Tony Abeln and Associate John Babcock recently prevailed before the Appeals Court on the issue of dismissal of a case against a large hospital client on late service grounds. 

The plaintiff first attempted to serve the hospital approximately 70 days into the 90 day period for service set forth in Mass.R.Civ.P. 4(j). The plaintiff forwarded the complaint and summons to the Sheriff’s office and asked that service be completed “as soon as possible,” but the plaintiff did not provide notice of the pending service deadline, nor file a motion for extension of time.  The hospital was served approximately 3 weeks after the service deadline.

In the Superior Court case, John successfully argued in a Motion to Dismiss that (1) Mass.R.Civ.P. Rule 4(J) mandated dismissal where service was late without a showing of good cause; (2) the plaintiff could not show good cause; and (3) lack of prejudice to the hospital was irrelevant under the law.  He further argued that the plaintiff’s failure to seek a liberally allowed extension of time for service was actually evidence of lack of due diligence. 

The Appeals Court reaffirmed the established principles underlying Rule 4(j) finding that the failure to monitor the sheriff’s office and the failure to seek an extension prior to the expiration of the 90 day period evidences lack of diligence as to service required under the  rule. Plaintiff had waited 22 days before the expiration of the service period to provide the Sheriff’s Office with the complaint and summons. The Sheriff’s Office did not serve until three weeks after the 90 day period expired. The fact that plaintiff’s counsel instructed the Sheriff to serve “as soon as possible” was not deemed sufficient and it was otherwise undisputed that plaintiff did not advise the Sheriff of the deadline or monitor to ensure timely service. The Court repeated the adage that counsel must give Rule 4(J)’s ninety (90) time period the respect “reserved for a “time bomb.” The Appeals Court held the terms of Rule 4(j), unlike Rule 55(c), specifically limit “good cause” to the reasons service was not made within the 90 day time period precluding resort to equitable considerations. According to the Court, while “equitable considerations” are at their “zenith in the Rule 55(c) milieu” they have no applicability  in the context of Rule 4(j).