United States District Court, D. Massachusetts
UNITED STATES OF AMERICA, ex rel. FRIEDRICH LU, Plaintiff,
MARIELENA GAMBOA-RUIZ and TRUSTEES of TUFTS COLLEGE Defendants.
ORDER ON PENDING MOTIONS AND SERVICE ISSUES
Talwani United States District Judge.
January 18, 2018, Plaintiff Friedrich Lu filed his
Complaint [#1] against Defendants Trustees of Tufts
College (“Tufts”) and Marielena Gamboa-Ruiz,
asserting claims including a claim under the False Claims
Act, 31 U.S.C. § 3730, et. seq. Plaintiff also
filed a Motion to Seal [#2]. The court granted the
Motion to Seal [#2], sealed the case, and delayed
issuance of summonses pending the United States' decision
on whether to intervene. See Order [#6].
April 9, 2018, the United States filed notice that it
declined to intervene in this case, see Notice of
Election to Decline Intervention [#11], and the
following day, April 10, 2018, the court ordered the action
unsealed, directed the clerk to issue summonses, and directed
Plaintiff to serve the summons and Complaint [#1]
upon each Defendant. See Order [#12]. The docket
reflects that the case was unsealed, summonses were issued,
and copies of the Complaint [#1], Order
[#12] and summonses were mailed to Plaintiff that same day.
See Docket Entry #14.
on the April 10, 2018, issuance of the summonses, service
should have been completed by July 9, 2018. According to
Tufts, Tufts received the summons and a copy of the
Complaint [#1] on July 11, 2018. Def. Trustees of
Tufts College's Mot. for Extension of Time to Respond to
Pl.'s Compl. ¶ 5 [#23]. Tufts' motion does not
contest the timeliness of service, but does seek additional
time to prepare briefing in support of a motion to dismiss.
Id. ¶ 9 [#23]. As grounds, Tufts states that
the Complaint [#1] raises multiple causes of action
under federal and state law claims and that Tufts requires
additional time to properly brief these claims. Id.
¶ 8 [#23]. The court finds good cause for the extension,
and Tufts' time to respond to the Complaint [#1]
is extended to August 17, 2018.
court turns next to Relator's Motion for Full
Disclosure [#22]. Some background is needed to address
this motion. One week after the court issued the
Order [#12] unsealing the case and directing
Plaintiff to serve the Defendants, Plaintiff filed a document
entitled Relator's Response to Apr 10, 2018
Order [#15]. In that filing, Plaintiff stated that he
had been unable to find the case on the public docket. That
filing sought no particular court action.
21, 2018, Plaintiff filed his Motion to Reset the
Clock [#16]. In that filing, Plaintiff noted that the
court had “not acted on [his earlier response], though
the court need not, for it was not a motion.”
Id. Plaintiff's May 21 filing sought additional
time for service because Plaintiff was unable to find the
case on the public docket on April 16, 2018. The court denied
the motion, as Plaintiff made no claim that he would be
unable to timely serve the summons and complaint in the
remaining six weeks of the service period. Elec. Order [#17].
The court also permitted Plaintiff to file a motion for a 30
day extension of time to complete service “[i]n the
event that Plaintiff is unable to serve Defendants with the
summons and complaint by July 10, 2018.” Id.
10, 2018, Plaintiff filed a Motion to Extend Time to
Serve [#19]. Plaintiff did not state that he had made
any attempt to serve Gamboa-Ruiz before July 10, or provide
any cause for failing to complete service, despite the
requirements of Federal Rules of Civil Procedure 4(m)-(1) and
District of Massachusetts Local Rule 4.1(m), which require a
plaintiff requesting additional time for service to
demonstrate good cause for the failure to serve within the
90-day period. Accordingly, the motion was denied. Elec.
Order [#20]. The denial again was without prejudice, but
Plaintiff was directed that any motion for additional time
for service shall be supported by a showing of good cause.
than explaining any grounds for the delay in service,
Plaintiff expressly declined to file such a motion, and
instead demands “full disclosure” regarding the
court's unsealing of the record, charging “one
irregularity after another.” Relator's Mot. for
Full Disclosure [#22]. The court has no information as to why
Plaintiff's search of the docket at the court's
public terminal was unsuccessful, and has identified no
irregularities by the court or the clerk's office. It may
be that Plaintiff typed Defendant's name incorrectly or
that he is mistaken as to the date of the search: April 16,
2018, was a court holiday so no search could have been
conducted at the court's public terminal on that date. In
any event, Relator's Motion for Full Disclosure
[#22] is denied as frivolous.
Federal Rule of Civil Procedure 4(m), “[i]f a defendant
is not served within 90 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.” The court hereby gives Plaintiff
notice that the action will be dismissed as to Defendant
Gambia-Ruiz if proof of service is not filed by August 31,
for the foregoing reasons,
1. Defendant Trustees of Tufts College's Motion for
Extension of Time to Respond to Plaintiff's
Complaint [#23] is ALLOWED. Tufts shall file its
response to Plaintiff's Complaint [#1] by August
2. Relator's Motion for Full Disclosure [#22] is
DENIED as frivolous.
3. If Plaintiff seeks to proceed against Defendant
Gambia-Ruiz, he shall serve and file a proof of service by
August 31, 2018, unless Gambia-Ruiz waives service by ...