Chelsea Commons Community Assoc., Inc. v. ACM Assoc., Inc., No.
S0401-04 CnC (Norton, J., June 23, 2005)



[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT                                    SUPERIOR COURT
Chittenden County, ss.:                         Docket No. S0401-04 CnC



CHELSEA COMMONS COMMUNITY
ASSOCIATION, INC.

v.

ACM ASSOCIATES, LTD.




                                 ENTRY

       Defendants Mervin Brown, Chelsea Investments, and G.I.D., Inc.,
seek to dismiss Chelsea Commons’ amended complaint based on its failure
to serve Mervin Brown or any other defendant properly under V.R.C.P.
Rule 3. Plaintiff Chelsea Commons admits that it has, up until now, not
served the defendants, but it argues that no prejudice to any of the
defendants follows from this oversight.

       This case began when Chelsea Commons filed its original complaint
in March 2004. The complaint named Chelsea Investments and G.I.D., Inc.
as defendants along with two other parties.1 At that time, all parties were
properly served in accordance with V.R.C.P. Rules 3 and 4. In early
October 2004, Chelsea Commons moved to amend its complaint to include
Mervin Brown as a defendant and to add two claims specific to Mr. Brown.
The amendment did not add Mr. Brown to any of the original claims or
modify those claims in any way. Functionally, the amended complaint
served as an addendum to include two severable claims against Mr. Brown
and Mr. Brown alone. At that time, Chelsea Commons mailed a copy of its
motion and its memorandum of law in support to the attorney for Chelsea
Investments and G.I.D., Inc. The court granted Chelsea Commons’ motion
on October 26, 2004. Thereafter, Chelsea Commons did not serve any of
the parties in accordance with Rule 3 or 4 until Mr. Brown was served with
a summons, a copy of the original complaint, and a copy of filings dealing
with the amended complaint on February 7, 2005.2

       Under V.R.C.P. Rule 3, Chelsea Commons had sixty days, following
the court’s grant to allow an amendment, in which to serve Mr. Brown, as a
new party to this action, with a summons, a copy of the complaint, and a


       1
         Each count of the complaint went to specific defendants. Claims three,
four, and five named Chelsea Investments and G.I.D., Inc. Claims one and two
were addressed to the remaining defendants ACM Associates, Ltd. and SCM
Construction, Ltd.. These latter defendants have not joined the present motion.
       2
        Plaintiff did not actually serve a copy of the amended complaint on
Mervin Brown until April 13, 2005.
copy of the amended complaint. The Children’s Store v. Cody Enter., 154
Vt. 634, 642 (1990). Proper service under Rule 4 required Chelsea
Commons to have had a sheriff, deputy, or similarly authorized person
make this service on either Mr. Brown or another from Rule 4(d)’s list of
acceptable substitutes. Instead of following this process, Chelsea
Commons sent what is best described as partial notice to the attorney
representing Chelsea Investments and G.I.D. Inc. While formally deficient,
this partial notice, Chelsea Commons argues, was sufficient enough since
Mr. Brown knew the attorney and was an officer of the two defendants.

        Rules 3 and 4, however, are more than simply notice statutes. As
part of the initiation of a suit, service of process is also a fundamental way
that courts gain jurisdiction over defendants. 4A C.Wright & A.Miller,
Federal Procedure & Practice § 1094, at 511 (2002). By failing to serve
Mr. Brown, Chelsea Commons not only failed to serve notice; they failed to
effect jurisdiction. Such an error is the plaintiff’s burden, and
responsibility for the failure rests entirely with Chelsea Commons.
Fercenia v. Guiduli, 2003 Vt. 50, at ¶ 12 (mem.).

        The question now is what remedy is appropriate. In the intervening
time, Chelsea Commons has fully effected service on Mr. Brown notifying
him of the claims against him and serving him through the process of Rule
4 to effect jurisdiction. Any prejudice or lack or notice to Mr. Brown
would seem to be mended by this restorative action, albeit several months
after the 60-day period. Notwithstanding this untimely compliance with
the rules, the court is persuaded that merely dismissing the amended
complaint and Mr. Brown would have little substantial effect on the nature
and substance of this case.

       For the remaining defendants, the situation would simply not
change. They would still be subject to the original complaint with its
claims as well as the jurisdiction of this court.3 While Mr. Brown would be
temporarily released from the case, a few quick filings by Chelsea
Commons would return him and the claims against him. Perhaps most
importantly, this is not a situation in which dismissal would trigger a statute
of limitations issue, which in turn would make Mr. Brown’s removal
permanent. Hence, dismissal would only serve to burden the parties with
further filings and expenses that would, in the end, only put them back at
the same position they currently occupy, namely as plaintiff and defendants
with notice and summons served.

      As V.R.C.P. Rule 1 counsels, this court will not dismiss an action
where the result is merely more filings, delays, and unnecessary expense.
As Chelsea Commons correctly notes, Rule 3's dismissal language is
permissive. While Chelsea Commons did serve Mr. Brown in an untimely
manner and failed to follow the basic rules for serving new parties, its
mistake does not spell real prejudice for Mr. Brown and does not warrant
dismissal.

       Based on the foregoing, Defendants’ motion to dismiss is denied.



       3
         Although Chelsea Investments and G.I.D., Inc. make much of the fact
that they have not been served with the amended complaint, there is little
substance to this point. As noted before, the amendments do not touch either
defendant as they only concern Mr. Brown. Furthermore, neither jurisdiction nor
notice are really at stake. The first was sufficiently achieved by the summons
accompanying the original complaint, and the second by the motions to amend
and the court’s order granting leave to amend, of which the defendants have
received copies.
Dated at Burlington, Vermont________________, 2005.




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