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Ferreira v. Corsini

United States District Court, D. Massachusetts

September 14, 2016

DANNY FERREIRA, Plaintiff,
v.
MICHAEL CORSINI, et al., Defendants.

          ORDER

          Indira Talwani United States District Judge

         Pending before the court are Plaintiff Danny Ferreira's Motion for Default [#17]; Defendant Justin Prario's Motion to Dismiss [#26]; Plaintiff's Revised Motion for Leave to Amend [#28] seeking leave to file a Second Amended Complaint; Plaintiff's Motion to Waive Service [#31]; and the Magistrate Judge's August 11, 2016, Report and Recommendation Re: Defendants' Motion to Dismiss the Complaint (Docket Entry # 26) Memorandum and Order Re: Plaintiff's Motion to Amend the Complaint (Docket Entry # 28) [“Report and Recommendation”] [#33].

         1. Plaintiff's Motion for Default

         The court DENIES as moot Plaintiff's Motion for Default [#17] as to Prario. Plaintiff successfully served Defendant Prario. See Process Receipt and Return [#15]. Defendant Prario failed to file a timely response. As discussed below, the court allows Plaintiff to file his proposed Second Amended Complaint, and that Second Amended Complaint does not name Defendant Prario.

         The court DENIES Plaintiff's Motion for Default [#17] as to Defendants Michael Corsini, Nelson Julius, and Greg Hyde. Plaintiff's attempt to serve these Defendants was unsuccessful. See Process Receipt and Return [#15].

         2. Defendant Justin Prario's Motion to Dismiss

         The court ADOPTS the Magistrate Judge's recommendation that Defendant Prario's Motion to Dismiss [#26] be DENIED as moot.

         The court also DENIES the motion to dismiss for failure to serve Defendants Corsini, Julius, and Hyde. These Defendants joined in the (now moot) Defendant's Motion to Dismiss [#26] for the purpose of raising service issues.

         The clerk docketed Plaintiff's pro se complaint and motion for leave to proceed in forma pauperis on November 4, 2013. Plaintiff was directed to file a certified prison account statement, Procedural Order [#4], and, on November 27, 2013, Plaintiff submitted his renewed motion for leave to proceed in forma pauperis with a certified prison account statement. See Application Proceed D. Ct. Without Prepaying Fees or Costs (Short Form) [#6]; Mass. Dep't Corr. Inmate Transaction Hist. Summary Rep. [#6-1]. On January 8, 2014, Plaintiff was granted leave to proceed in forma pauperis and a partial filing fee was assessed. See Memorandum and Order [#7]. Under the screening provisions of 28 U.S.C. § 1915(e)(2)(B)(ii), Plaintiff was ordered to file an amended complaint within 42 days or his action would be dismissed. Id. On February 18, 2014, Plaintiff filed his Amended Verified Civil Complaint [#10]. Throughout this entire period, no summonses were issued.

         On July 30, 2014, Plaintiff submitted an inquiry to the clerk as to the status of the case. Letter [#11]. On November 25, 2014, the clerk was directed to issue summonses, and the United States Marshal was directed to serve the summonses and a copy of the amended complaint upon the Defendants as directed by Plaintiff with all costs of service to be advanced by the United States. See Order [#12]. Plaintiff was directed to complete service within 120 days. Id. On November 26, 2014, summonses were issued and sent to Plaintiff. See Summons Civ. Action [#13]; Remark [#14].

         The return of service docketed with the court shows that Plaintiff promptly dated his requests for service on December 8, 2014, the requests for service were stamped by the United States Marshal on December 16, 2014, but that the United States Marshal did not acknowledge receipt until March 18, 2015, service was not attempted until May 1, 2015, and the returns were not filed with the clerk's office until May 8, 2015. See Process Receipt and Return [#15]. The returns show that service was not completed as to Defendants Corsini, Julius, and Hyde because they were no longer at the Massachusetts Treatment Center. Id.

         On July 15, 2015, counsel filed an unqualified Notice of Appearance [#16] on behalf of these Defendants and made no correction to that Notice for almost four months. Id.

         At the time the Complaint was filed, and at the time the summonses were issued, Rule 4 provided that “[i]f a defendant is not served within 120 days, 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.” Fed.R.Civ.P. 4(m).[1] The rule provides further that “[i]f the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. (emphasis added). Here, Plaintiff could not attempt service within 120 days of the filing of the complaint as no summonses had issued. See Process Receipt and Return [#15]. Once the summonses had issued, the record shows due diligence in providing the summonses and Amended Complaint to the United States Marshals Service. See Process Receipt and Return [#15]; Pl.s Mot. Enlargement Time & Req. Leave to Amend [#27]. Thereafter, the United States Marshals Service did not attempt service within 120 days, but Plaintiff cannot be blamed for this delay. See Process Receipt and Return [#15]. Finally, after the United States Marshal reported that service was not completed, counsel for Defendants filed a general notice of appearance, which could have been understood by Plaintiff as a waiver of service. See Process Receipt and Return [#15]; Not. Appearance [#16].

         Accordingly, on de novo review, the court rejects the Magistrate Judge's conclusion that Plaintiff's actions regarding service “bespeaks a lack of diligence” and that “a dismissal of the complaint as to Corsini, Julius and Hyde for lack of service is appropriate.” See Report and Recommendation 11 [#33]. The court finds that Plaintiff has shown good cause for his ...


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