                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1004

                       EDWARD H. BENJAMIN,

                      Plaintiff, Appellant,

                                v.

                        ALLEN H. GROSNICK,

                       Defendant, Appellee.

                                           

No. 93-1005

                        PETER J. EMBRIANO

                      Plaintiff, Appellant,

                                v.

                        ALLEN H. GROSNICK,

                       Defendant, Appellee.

                                           
          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS 

          [Hon. Frank H. Freedman, U.S. District Judge]
                                                      

                                           

                              Before

                    Torruella, Circuit Judge,
                                            

                 Feinberg,* Senior Circuit Judge,
                                                

                    and Boudin, Circuit Judge.
                                             

                                           

                    

*  Of the Second Circuit, sitting by designation.

     C. Brian  McDonald, with  whom  Ronald P.  Weiss, Gerald  P.
                                                                 
Ciejka  and Bulkley,  Richardson and  Gelinas, were on  brief for
                                             
appellants.
     Robert Aronson, with whom Law Offices of Robert Aronson, was
                                                            
on brief for appellee.

                                           

                          July 20, 1993
                                           

                               -2-

          TORRUELLA,   Circuit  Judge.     In   companion  cases,
                                     

appellants, Edward Benjamin, M.D.  and Peter Embriano, M.D., sued

appellee   Allen   Grosnick    for   deceit,   fraud,   negligent

misrepresentation,  breach of fiduciary  duty, and  violations of

state and federal securities law.   The district court  dismissed

the claims on the ground that appellants failed to properly serve

pleadings upon  appellee within  the required one  hundred twenty

days of filing  suit.   We affirm the  district court's  judgment

with respect to Benjamin and reverse it with respect to Embriano.

                            BACKGROUND
                                      

          Appellants   filed   complaints  against   appellee  on

September 14,  1990.   Twelve  days  later,  Deputy Sheriff  Paul

Bianconi executed returns of  service swearing that he personally

served appellee at 167  Dwight Street, Longmeadow,  Massachusetts

with  both sets  of  pleadings.   After  procuring an  extension,

appellee answered  alleging improper  service of process  in both

cases and insufficient process  in Benjamin's case.  On  the same

day,  appellee  also filed  a  third  party complaint  and  began

discovery.  Six weeks  later, the court approved an  agreement by

the parties  to stay  the proceedings  for reasons  irrelevant to

this appeal.

          Eventually, the stay ended, and a scheduling conference

was  held  at  which  appellee   made  a  vague  assertion   that

appellants' service failed to  comply with Rule 4 of  the Federal

Rules of Civil Procedure.1   At that time, he also asserted  that

                    

1  See appendix for the text of Rule 4.

                               -3-

process was insufficient in Benjamin's case because he was served

with the wrong complaint.2

          On  April  30,  1992,  appellee moved  to  dismiss  the

actions  pursuant  to Rule  4(j) of  the  Federal Rules  of Civil

Procedure for  untimely  service.   In  support of  the  motions,

appellee submitted an affidavit  claiming that, while the returns

of  service  indicated  that   personal  service  took  place  in

Massachusetts, he was not in Massachusetts on the alleged date of

service.  At this point, it  became clear that this was the basis

of  the insufficient  service  defenses.   In addition,  appellee

reiterated  in the affidavit that  even if the  method of service

sufficed,  the  process itself  did  not  because Benjamin  never

served him with  the proper complaint.  In opposition, appellants

submitted  affidavits by the  deputy sheriff stating  that he had

personally served appellee on  the record date.  Appellants  then

re-served appellee properly.

          After an evidentiary hearing, the  district court found

that  appellee was  in  Arizona on  the  service date,  and  that

appellants therefore  failed to  personally serve him  within the

120 day limit.  Then, finding that appellants failed to show good

                    
cause for  the delayed service,  the court  dismissed the  action
2   Appellee contends that  while the summons  properly cited the
without  prejudice.3    The  district  court  denied  appellants'
appropriate case names, the  complaint that the sheriff delivered
for Benjamin  regarded an action  by Benjamin against  Richard K.
Bernstein and  The  Bernstein Group,  Inc. in  the United  States
District  Court  for the  District  of Connecticut.    While that
lawsuit  concerned  similar  interests,  the complaint  for  that
action did not name appellee as a defendant.

3  Although the court dismissed the claims without prejudice, the
statute of  limitations bars the refiling  of appellants' federal
statutory claims.

                               -4-

request for reconsideration, and appellants filed this appeal.

                            DISCUSSION
                                      

          Under Fed. R.  Civ. P.  4(j), if a  plaintiff fails  to

properly serve a named  defendant within 120 days after  filing a

complaint, he must show "good cause why such service was not made

within that period"  or face  dismissal.4  We  review a  district

court's  determination of  whether a  plaintiff  established good

cause only for  abuse of discretion.  United States  v. Ayer, 857
                                                            

F.2d 881, 884-85 (1st Cir. 1988).

          With  respect  to   appellants'  alleged   insufficient

service,  we find  the  district court's  dismissal  an abuse  of
       

discretion.  Appellants did not purposely delay personal service.

Indeed, they  completed  all  of the  steps  within  their  power

necessary  to effectuate such service.   The blame  for the error

rested  with the deputy sheriff.  Moreover, because of the deputy

sheriff's  sworn  representations  in   the  return  of  service,

appellants reasonably believed  that they  had personally  served

appellees.  

          Furthermore, although appellee's answers to appellants'

complaints alleged  insufficient  service, appellee  waited  more

                    

4  Rule 4(j) provides in relevant part:

            If a  service of the summons  is not made
            upon  a defendant  within 120  days after
            the filing of the complaint and the party
            on whose behalf such service was required
            cannot show good  cause why such  service
            was  not  made  within that  period,  the
            action  shall  be  dismissed  as  to that
            defendant without prejudice . . . .

                               -5-

than  120  days to  notify  appellants of  the  defect's specific

nature.  Given the general  nature of appellee's asserted defense

and  the deputy sheriff's assurance in the return of service that

he   had  personally   served  appellee,   appellants  reasonably

abstained from further investigation.

          Still  further, the defective service did not prejudice

appellee.   See Ayer, 857  F.2d at 881  (considering prejudice to
                    

defendant  in  Rule 4(j)  determination).    Appellee had  actual

notice of the lawsuit  and secured through stipulation additional

time to file an answer.  Conversely,  dismissal  will   prejudice

appellants because the statute of  limitations has already run on

their  federal statutory claims.  See Floyd v. United States, 900
                                                            

F.2d  1045,  1046  (7th  Cir.  1990)  (considering  prejudice  to

plaintiff in Rule 4(j) determination).

          Given  all  of  the  above factors,  we  conclude  that

appellants showed  good cause  for the delayed  personal service.

In  its finding to  the contrary, the  district court erroneously

relied  on Roque  v. United  States, 857  F.2d  20, 22  (1st Cir.
                                   

1988),5 which held that:

            [G]iven  the  [defendant's] answer  which
                                                     
            did   not  clearly   allege  insufficient
                                                     
            service  of   process,  the  government's
                                 
            failure  plainly to  assert insufficiency
            until  after the  120 days  had run,  the
            confusion caused by the  district court's

                    

5  Although a  district court's good cause finding is entitled to
great deference, such a finding "'predicated upon, or induced by,
a misapprehension of law  is robbed of its  customary vitality.'"
Reliance  Steel Products v. National Fire Ins. Co., 880 F.2d 575,
                                                  
577 (1st  Cir.  1989) (quoting  RCI  Northeast Services  Div.  v.
                                                             
Boston Edison Co., 822 F.2d 199, 203 (1st Cir. 1987)).
                 

                               -6-

            initial   denial   of  the   government's
            motion,  the simple  manner in  which the
            service deficiency can be cured,  and the
            absence of any  articulable prejudice  to
            the  [defendant],  we think  the district
            court should have found good cause.

(emphasis added).  By implication,  the district court found that

where a defendant clearly alleges insufficient service within the

120  day limit, the  plaintiff is on  notice of some  defect, and

therefore must inquire into  the nature of that defect.  We agree

with  the district  court that  under certain  circumstances, the

assertion  in an answer  of insufficient service  of process will

provide  notice  that  would  induce a  reasonable  plaintiff  to

investigate the possibility of a deficiency.   In addition, there

is  no requirement  that a  defendant specify  the source  of the

defect in the  service.   However, the lack  of such  specificity

bears on the reasonableness  of the plaintiff's actions.   In the

present case, Grosnick did  not specify the source of  the defect

until it was  too late for appellants to cure it.  Where as here,

appellants,  relying on an attested  to return of  service by the

deputy sheriff, believed that they had properly effected service,

and indeed did everything in their power to do so, Roque does not
                                                        

imply that failure  to investigate after  a general assertion  of

insufficient  service  prevents a  finding  of  good  cause.   We

therefore   reverse  the   court's   judgment  with   respect  to

appellants' delay of personal service.

          On the other hand,  we cannot easily forgive Benjamin's

alleged service  of insufficient process.   Although the district
                                        

court requested  a statement  of contested facts,  Benjamin never

                               -7-

disputed appellee's allegation that he was served with the  wrong

complaint.    Indeed,  although appellee  mentioned  the  problem

numerous times on the  record, and again on appeal,  Benjamin has

yet  to acknowledge it.  Accordingly, we accept the allegation as

true.

          Also because of  Benjamin's failure to  acknowledge the

allegation,  we  cannot possibly  conclude  that he  has  met his

burden of  establishing  good cause  why  service of  the  proper

complaint  was  delayed.   We  do not  know  with whom  the error

originated, when  Benjamin knew  about  it, or  even whether  the

deficiency  was intentional.  By ignoring these major gaps in the

procedural history, and indeed  the entire issue, Benjamin failed

to establish  good cause  for the  delayed service of  sufficient

process.   Thus,  we affirm  the  district court's  dismissal  of

Benjamin's case on different grounds than the court stated.

          Affirmed in part; reversed in part.
                                            

          Appendix can be found attached to the slip opinion.

                               -8-
