GINA CROSSETTI, as Personal Representative of the Estate of Robert A. Crossetti, Jr., Plaintiff, Appellant,
CARGILL, INCORPORATED, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Katherine A. Robertson, U.S. Magistrate
R. Herrick, with whom Nicholson Herrick LLP was on brief, for
J. Gilbertson, with whom Jenny Gassman-Pines, Caitlinrose H.
Fisher, Greene Espel PLLP, Jeffrey E. Poindexter, Elizabeth
S. Zuckerman, and Bulkley Richardson & Gelinas LLP were
on brief, for appellee.
Torruella, Lynch, and Kayatta, Circuit Judges.
Rule of Civil Procedure 4(j) requires a plaintiff to effect
service of process within ninety days of filing suit. Mass.
R. Civ. P. 4(j). Massachusetts courts accord this deadline
"the respect reserved for a time bomb."
Comm'r of Rev. v. Carrigan, 698 N.E.2d 23, 28
(Mass. App. Ct. 1998) (quoting Braxton v. United
States, 817 F.2d 238, 241 (3d Cir. 1987)). The plaintiff
in this removed diversity suit failed to meet that deadline.
thoughtful opinion, the court granted the defendant's
motion to dismiss for insufficient timely service of process.
Crossetti v. Cargill, Inc., No. 3:18-CV-30002-KAR,
2018 WL 2770130, at *1 (D. Mass. June 8, 2018). The court
also denied the plaintiff's motion for an extension of
time to perfect service of process. Id. We affirm.
briefly describe the relevant background, taking the
complaint's allegations as true for these purposes. In
November 2014, Robert Crossetti, Jr., died from work-related
injuries sustained from a machine owned and
"superintende[d]" by Cargill, Inc. Gina Crossetti,
as personal representative of Robert's estate, sued
Cargill in Massachusetts Superior Court on September 28,
2017, bringing claims for negligence and wrongful death. The
statutes of limitations on Crossetti's claims ran shortly
thereafter, on November 19, 2017. See Mass. Gen.
Laws ch. 260, § 2A (three years for negligence); Mass.
Gen. Laws ch. 229, § 2 (same for wrongful death).
maintains a registered agent to accept service of process in
Massachusetts, but Crossetti served Cargill with process by
mail. See Mass. R. Civ. P. 4(e)(3). On November 29,
2017, Crossetti mailed a certified letter to "Cargill
Incorporated" in which she enclosed a copy of the
summons, complaint, civil action cover sheet, and scheduling
order. For purposes of this appeal, it is not contested that
this service of process was invalid because
"Massachusetts law requires that, in the case of a
corporation, service be made on 'the president,
treasurer, clerk, resident agent appointed pursuant to
section 49 of chapter 156D, cashier, secretary, agent or
other officer in charge of its business, or, if no such
officer is found . . . any member of the
corporation.'" Crossetti, 2018 WL 2770130,
at *2 (quoting Mass. Gen. Laws ch. 223, § 37).
removed the action to federal court on January 2, 2018, and
moved to dismiss based on insufficient service of process a
week later, on January 9, 2018. Also on January 9, Crossetti
filed a motion to extend the time to perfect service of
process. The court granted Cargill's motion to dismiss
because Crossetti had failed to properly serve Cargill with
process within ninety days of filing her complaint and had
not shown good cause to excuse that failure.
Crossetti, 2018 WL 2770130, at *3-4 (applying Mass.
R. Civ. P. 4(j)).
court also denied Crossetti's motion to extend time to
perfect service of process under Massachusetts Rule 6(b).
Id. at *6. The relevant provision of that rule
applies after a deadline passes and allows for an enlargement
of time when failure to meet the deadline "was the
result of excusable neglect." Mass. R. Civ. P. 6(b)(2).
The court concluded that, under Massachusetts law, Rule 6(b)
did not relieve Crossetti of her burden of showing "good
cause" under Rule 4(j). Crossetti, 2018 WL
2770130, at *6. The court did not reach whether Crossetti had
shown "excusable neglect."
review for abuse of discretion a dismissal for insufficient
service of process." Calderón Serra v. Banco
Santander P.R., 747 F.3d 1, 7 (1st Cir. 2014). ...