Bessette v. Dept. of Corrections, No. S0303-05 CnC (Norton, J., July 20,
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. S0303-05 CnC



BESSETTE

v.

DEPARTMENT OF CORRECTIONS



                                  ENTRY

        This is a motion to dismiss for Plaintiffs’ failure to properly serve
defendant Dr. Paul Cotton within the time frame of V.R.C.P. Rule 3 in
accordance with the process outlined in Rule 4(d). Plaintiffs do not deny
that service was improper but claim that this court’s prior entry allowing for
an enlargement of time to perfect service under Rule 6(b) and equitable
estoppel prevent Dr. Cotton from making this claim.
        This case is the result of a tragic occurrence. Decedent Lawrence
Bessette, Jr. suffered from mental illness and was a patient in the care of the
Vermont State Hospital in Waterbury. On May 22, 2003, Mr. Bessette
committed suicide. His family now seeks, under a claim of wrongful death,
compensation from the State of Vermont and the medical employees, who
they claim failed to treat Mr. Bessette properly and prevent his suicide.
They initiated this case on March 22, 2005 by filing their complaint with
this court. The complaint names fifteen individuals (seven of them in their
official as well as individual capacity) and three entities (including the state
of Vermont. Over the next two months, Plaintiffs served defendants or
obtained waivers from them.

        One of the waivers was sent to Thomas Carlson, whom Plaintiffs
identified as an attorney for Dr. Paul Cotton, an individual defendant.
Carlson responded to this March 23 letter two days later with a letter stating
that he could not waive service for Dr. Cotton but had forwarded the
pleadings to him and was “confident that Paul will [waive service] in due
course.” Dr. Cotton did not waive service. On May 4, Plaintiffs sent a
letter to Attorney Carlson requesting information on the status of Cotton’s
waiver. They received no response. On May 19, Plaintiffs moved under
V.R.C.P. Rule 6(b) to enlarge time to complete service on the defendants,
such as Cotton, who had not waived or been served. The court granted this
motion on May 20. Dr. Cotton was served under V.R.C.P. Rule 4(d) on
May 25.

        Dr. Cotton now moves pursuant to V.R.C.P. Rule 12(b)(5) to
dismiss Plaintiffs’ complaint against him for failure to serve him within the
two year period allowed for wrongful death claims. 14 V.S.A. § 1492. By
statute, Plaintiffs had two years from Mr. Bessette’s death in which to file
their present claims. Id. This means that the statute expired on May 22,
2005,?? three days before Dr. Cotton was served and one day after the sixty-
day period for service under V.R.C.P. Rule 3. Thus, Dr. Cotton was not
served within the time allowed by the statute of limitations in § 1492 and
may be dismissed as a party.

Rule 6(b) Extension

        Plaintiffs’ first argument against dismissal is that they properly
moved and were granted a Rule 6(b) extension and that Dr. Cotton’s May
25 service came well within that period. If this was merely a question of
timely service, Plaintiffs’ argument would prevail, but the issue that Dr.
Cotton raises is whether Rule 6(b) can also extend a statute of limitations’
period. The difference is subtle but important. In the days leading up to
May 22, there were two time limits approaching. The first was the 60-day
period under Rule 3 in which Plaintiffs had to serve Dr. Cotton for service
to be timely. The second was § 1492's two-year limit, which by
coincidence was expiring one day after the deadline for Rule 3. When
Plaintiffs filed for an extension through Rule 6(b), they were asking to
extend the former time limit, but there is nothing in Rule 6(b), which

       1
          Plaintiffs argue that this date should be later because they did not
“discover” the negligence behind Mr. Bessette’s death for several months. Cf.
Lillicrap v. Martin, 156 Vt. 165, 176 (1989) (holding that the statute of limitation
for a medical malpractice claim under 12 V.S.A. § 521 only runs when a plaintiff
should have discovered the injury, its cause, and the existence of a cause of
action). This discovery rule, however, does not apply to wrongful death actions.
Unlike medical malpractice or other causes of action, the time for 14 V.S.A. §
1492 is based on the occurrence of death and does not toll or accrue upon later
discoveries. Leo v. Hillman, 164 Vt. 94, 97–100 (1995). Notwithstanding any
subsequent evidence of negligence, this cause of action began to accrue on March
22, 2003 when Mr. Bessette died.
suggests that it may also extend the separate statute of limitations deadline.



        While Rule 3 does permit tolling of the statute of limitation, it does
so so long as timely service is accomplished. Weisburgh v. McClure
Newspapers, Inc., 136 Vt. 594, 595 (1979). In contrast, Federal Rule 6(b),
on which V.R.C.P. Rule 6(b) is taken, does not permit courts to enlarge
statutes of limitation. E.g., United States ex. rel. Tenn. Valley Auth. v.
Easement & Right-of-Way Over Certain Land in Cumberland County,
Tennessee, 386 F.2d 769, 771–72 (6th Cir. 1967) (distinguishing between a
jurisdictional condition created by statute and a procedural limitation to
which Rule 6 addresses); Hammons v. Int’l Playtex, Inc., 676 F. Supp.
1114, 1118 (D.Wyo. 1988), vacated and remanded by party stipulation, 872
F.2d 963 (10th Cir. 1989) (reasoning that the 60 days under Rule 3 was an
“integral part of the statute of limitations” and any enlargement would
frustrate its policies); 4B C.Wright & A.Miller, Federal Practice and
Procedure § 1165, at 519–20 (2002); cf. Poulos v. Wilson, 116 F.R.D. 326
(D.Vt. 1987) (granting a Rule 6(b)(2) motion when defendant was served 1
day after the time for Rule 3 service lapsed but 8 days before statute of
limitations ran). In the Federal system, extensions for service of process
are explicitly given under F.R.C.P. 4(m). As the Vermont Supreme Court
has noted, this provision was not included in the Vermont version and is not
available for Plaintiffs to use. Fercenia v. Guiduli, 2003 VT 50, ¶ 10, n.1
(mem.). Plaintiffs’ Rule 6(b) motion was not merely for Rule 3 purposes
but to preserve their claim beyond the statute of limitations so that they
could then effect proper service. Such a use of Rule 6(b) cannot be granted,
regardless of any excusable neglect or equitable considerations. Id. at ¶¶ 10,
12 (“That defendants had notice of plaintiff’s claim is of no moment. The
issue here is . . . whether plaintiff's failure to file defendants’ waiver of
service within the time required by the rules constituted a failure to
properly commence plaintiff’s action and toll the applicable statute of
limitations.”).

        While this result may appear somewhat draconian, it is rooted in the
twin functions of Rule 3. See Powers v. Chouinard, 138 Vt. 3, 4 (1979)
(dismissing case because service was made one day late). Service of
process not only notifies the defendant of the complaint and its terms but
also exacts physical jurisdiction over the defendant. 4A C.Wright &
A.Miller, Federal Procedure & Practice § 1094, at 511 (2002). By failing
to serve defendant within the time allowed under Rule 3, plaintiffs not only
failed to serve notice; they failed to effect jurisdiction. To paraphrase the
Sixth Circuit Court of Appeals, the time limitation of § 1492 is a part of a
statute creating the cause of action and establishing jurisdiction. This time
limitation operates as a jurisdictional condition as distinguished from a
procedural limitation. For this reason, Rule 6(b), relating to procedural
time periods, has no application. United States, 386 F.2d at 771. While the
Rule 6(b) extension may have cured the first defect, it simply could not
address the second. This was, moreover, Plaintiffs’ responsibility for
which they bore the burden and must bear the responsibility. Weisburgh,
136 Vt. at 497; Brady v. Brauer, 148 Vt. 40, 44 (1987) (“[Plaintiffs have]
the responsibility for any failure to fulfill the provisions of V.R.C.P. 4(d)
and (e) . . .”). Therefore, notwithstanding this court’s prior grant of a Rule
6(b) extension, Plaintiffs’ service on Dr. Cotton was untimely under §
1492.

Equitable Estoppel

      A defendant may be estopped from raising the statute of limitations
defense in certain circumstances by either equitable tolling or equitable
estoppel. Fercinia, 2003 Vt. 50, at ¶ 12. Equitable tolling in this case does
not apply to Plaintiffs. Beecher v. Stratton Corp., 170 Vt. 137, 142–43
(1999) (requiring the defendant to mislead or prevent plaintiff in an
extraordinary way from filing or for plaintiff to file timely in wrong forum).
For equitable estoppel to apply, plaintiffs must demonstrate that:

       (1) the party to be estopped must know the facts; (2) the party
       being estopped must intend that its conduct be acted upon; (3)
       the party asserting estoppel must be ignorant of the true facts;
       and (4) the party asserting the estoppel must rely on the
       conduct of the party to be estopped to its detriment.

Town of Victory v. State, 174 Vt. 539, 540 (2002) (mem.); Fisher v. Poole,
142 Vt. 162, 168 (1982).

        Here, the question appears to revolve around the actions of Attorney
Carlson in misleading Plaintiffs. It is worth noting that while Attorney
Carlson was an Attorney for Matrix Health Systems and Paul G. Cotton,
M.D., PC. Attorney Carlson was not Dr. Cotton’s attorney. The difference
is important as Dr. Cotton, the individual named in Plaintiffs’ complaint,
and Paul G. Cotton, M.D., Professional Corporation, are two different
entities. See 11 V.S.A. § 825 (requiring such corporations to include P.C.
in their name to signify their purpose and corporate structure). On May 25
when Attorney Carlson received Plaintiffs’ letter, he notified them
immediately that he could not waive service on behalf of Dr. Cotton. He
also told them that he had passed the waiver material on to Dr. Cotton and
that he was “confident” that Dr. Cotton would waive. Plaintiffs admit that
Dr. Cotton was under no duty to waive (although such a failure might have
cost him in service and attorney’s fees under Rule 4(l)(6)) and may even
have had legitimate reasons not to waive (such as a requirement by his
insurance company not to waive).
       Looking, then, at Attorney Carlson’s statement of confidence there is
a lack of intent. At that early stage, Attorney Carlson may have honestly
believed that Dr. Cotton would waive service and may have seen no reason
that he would not. But his statements do not reflect any knowledge on his
part about what Dr. Cotton would actually do. Furthermore, it follows a
statement by Attorney Carlson disclaiming any ability to waive service on
Dr. Cotton’s behalf. The fact that Plaintiffs sent a follow up letter on May
4 shows that they were not completely lulled by Attorney Carlson’s
professed assurances. The fact that Attorney Carlson made no more
statements demonstrates a lack of intent to deceive Plaintiffs. He did not
continue issuing assurances and made no statements that would lead
Plaintiffs to believe that he spoke on Dr. Cotton’s behalf. The fact that
Plaintiffs mistook him to be Dr. Cotton’s attorney (and thereby agent) does
not change this situation. In fact, it illustrates the real reason why Plaintiffs
were lulled by Attorney Carlson’s words. They believed that he was Dr.
Cotton’s attorney. See Beecher v. Stratton Corp., 170 Vt. 137, 139 (1999)
(“All of the circumstances of the case must be evaluated in determining
whether the doctrine applies, but generally it ‘will not be invoked in favor
of one whose own omissions or inadvertences contributed to the
problem.’”) (quoting Fisher, 142 Vt. at 169). This is an understandable
mistake, but it was not one fostered or effectuated by either Dr. Cotton or
Attorney Carlson. Equity will only intervene where the plaintiffs’ situation
permits it.

       In the end, it is important to remember that service was Plaintiffs’
burden in this case. They had a duty to make sure Dr. Cotton was served.
While Dr. Cotton did not make their job any easier by refusing to waive
service, he did not make it any more difficult. There is no evidence that he
hid from them or instructed Attorney Carlson to issue misleading
statements. Indeed, once Plaintiffs realized that Dr. Cotton was not going
to waive service, they were able to serve him immediately. While they
made a good faith effort to effectuate such service within a narrow frame of
time, it was simply too late.

       Defendant Paul Cotton’s Motion to Dismiss claims against him is
therefore Granted.



      Dated at Burlington, Vermont________________, 2005.




                                 __________________________________
                                                              Judge
