Bessette v. Dept. of Corrections (2006-003)

2007 VT 42

[Filed 01-Jun-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 2007 VT 42

                                No. 2006-003


  Lawrence Bessette, Sr. and                     Supreme Court
  Constance Bessette, et al.
                                                 On Appeal from
       v.                                        Chittenden Superior Court


  Department of Corrections, et al.              December Term, 2006


  Ben W. Joseph, J.

  Gregg M. Meyer of Kohn Rath & Meyer LLP, Hinesburg, for Plaintiff-Appellee.

  Stephen J. Soule of Paul Frank + Collins P.C., Burlington, for
    Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.


       ¶  1.  DOOLEY, J.   In this interlocutory appeal, Paul Cotton, M.D.
  seeks reversal of an order reinstating him as a defendant in a wrongful
  death action brought by plaintiff, the estate of Lawrence Bessette, Jr.
  (FN1)  Defendant contends that, although plaintiff completed service within
  the time allowed by a court-granted extension under Vermont Rule of Civil
  Procedure 6, the action against him was nevertheless time-barred because
  service occurred outside the sixty days provided for in Rule 3.  We hold
  that service is still timely if completed within a properly awarded Rule 6
  extension, and therefore affirm.   
       
       ¶  2.  This case begins tragically on May 22, 2003, when Lawrence
  Bessette, Jr. committed suicide while incarcerated at the Vermont Northern
  Correctional Facility.  Plaintiff brought a wrongful death action against
  the Department of Corrections (DOC) and the private medical and mental
  health care providers with which the DOC contracted to provide care to
  inmates.  Plaintiff also named in its complaint various individual
  employees and agents of the DOC and its health care providers, including
  defendant Cotton.

       ¶  3.  Plaintiff commenced its lawsuit by filing a complaint on March
  22, 2005.  It requested and received waivers of service of the complaint
  from all of the institutional defendants and a majority of the individual
  defendants.  Defendant, however, did not waive service.  Plaintiff and the
  lawyer who served as the registered agent for both defendant's business and
  one of the institutional defendants exchanged letters which led plaintiff
  to believe that defendant would waive service.  Ultimately, however, no
  waiver arrived, and thus plaintiff sent a summons and complaint to the
  Chittenden County sheriff on May 11, 2005 with instructions for service.  A
  week later, defendant had still not been served and so, on May 19, 2005,
  plaintiff filed a motion for an enlargement of time pursuant to Rule
  6(b)(1), which the court granted the next day.   
   
       ¶  4.  Defendant was finally served on May 25, 2005.  Shortly
  thereafter he filed a motion to dismiss, claiming that under the two-year
  statute-of-limitations period for wrongful death actions, 14 V.S.A. § 1492,
  and under Rule 3, the last day he could have been served was May 21, 2005. 
  The superior court, Judge Norton presiding, agreed and dismissed defendant
  from the suit.  Other defendants who were served during the Rule 6
  enlargement period subsequently filed their own motions to dismiss on the
  same grounds.  This time, however, the superior court, Judge Joseph
  presiding, denied the motions, expressly rejecting Judge Norton's analysis. 
  Judge Joseph's order prompted plaintiff to successfully move to reinstate
  defendant as a party.  This interlocutory appeal followed. 

       ¶  5.  In this case, both parties approvingly acknowledge our
  oft-cited rule that "if the filing of a complaint is to be effective in
  tolling the statute of limitations as of that filing date, timely service
  under the Rules of Civil Procedure must be accomplished."  Weisburgh v.
  McClure Newspapers, Inc., 136 Vt. 594, 595, 396 A.2d 1388, 1389 (1979)
  (construing 12 V.S.A. § 466).  In essence, their dispute is over what
  constitutes "timely service" under the Weisburgh rule.  Significantly,
  neither party directly contends that "timely" means that service of process
  must be accomplished before the statute-of-limitations period has expired. 
  Defendant's argument is more limited.  He claims that: (1) the Vermont
  rules, unlike their federal counterparts, do not provide for extensions for
  service in Rule 4 and thus the sixty-day period for service in Rule 3 is
  absolute; and, alternatively, (2) if the rules do provide for such
  extensions, the result would be a judicial enlargement of the
  statute-of-limitations period in violation of the doctrine of separation of
  powers.  Defendant's notion that the sixty-day period under Rule 3 is
  absolute is also based on the argument that Rule 6 applies only once an
  action is commenced, and an action is not commenced until the complaint has
  been filed, the defendant has been served, and the return of service has
  been filed in a timely manner.  We address, and reject, each argument in
  turn.
   
       ¶  6.  This case presents a question of law which we review de novo. 
  State v. Valyou, 2006 VT 105, ¶ 4, ___ Vt. ___, 910 A.2d 922 (mem.).  Two
  procedural rules are implicated.  Rule 3 states that "[w]hen an action is
  commenced by filing, summons and complaint must be served upon the
  defendant within 60 days after the filing of the complaint."  Rule 6 allows
  for extensions of time "[w]hen by these rules or by a notice given
  thereunder or by order of court an act is required or allowed to be done at
  or within a specified time."  V.R.C.P. 6(b).  It provides that a court may
  grant an extension "for cause shown . . . at any time in its discretion"
  when: (1) the period originally prescribed has not expired, or (2) the
  originally prescribed time has expired, if the failure to act is the result
  of "excusable neglect."  Id.  Here, there is no question that plaintiff
  requested its Rule 6(b)(1) extension before the originally prescribed sixty
  days had expired.

       ¶  7.  Thus, the first question raised by defendant is whether the
  Vermont rules provide for extensions of time in which to complete service. 
  The Reporter's Notes expressly invite the use of Rule 6 for this purpose. 
  The Reporter's Notes to the original version of Rule 3, which set forth
  thirty as opposed to sixty days for service, state the following: "The
  30-day limit . . . puts the burden on a plaintiff who legitimately needs
  more time to seek enlargement of the period under Rule 6(b)."  Reporter's
  Notes, V.R.C.P. 3.  Additionally, we have previously upheld the "[r]eading
  [of] Rules 3 and 6(b) together," consistent with this note, for purposes of
  determining timely service under the rules.  Morrisseau v. Estate of
  Fayette, 155 Vt. 371, 372, 584 A.2d 1119, 1119-20 (1990).  In Morrisseau,
  we affirmed the dismissal of plaintiff's suit because it was "undisputed
  that the complaint was not served to certain defendants within the thirty
  days then required by the rule" and because it was "also undisputed that
  plaintiff did not request an extension of time under V.R.C.P. 6."  Id. at
  372, 584 A.2d at 1119.  Similar to Morrisseau, in affirming the dismissal
  of an action for untimely service in Weisburgh, we noted that not only had
  the period in which to complete service under Rule 3 expired, but that
  "[n]o motion to enlarge the time for completing service under V.R.C.P. 6
  was made within the period."  Weisburgh, 136 Vt. at 595, 396 A.2d at 1389.  
   
       ¶  8.  Applying Rule 6 to extend the time for service in Rule 3 is
  consistent with federal practice, in which the time for service-120 days
  under Federal Rule of Civil Procedure 4(m)-can be enlarged in the court's
  discretion under Rule 6.  There, the burden a plaintiff must meet to get an
  extension under Rule 4(m) and Rule 6 is subject to varying interpretations,
  but the applicability of Rule 6 to the time for service is clear.  See 4B
  C. Wright & A. Miller, Federal Practice and Procedure § 1137, at 385-86 (3d
  ed. 2002) (stating that trial court "should" enlarge time for service "by
  exercising its discretion under either Rule 4(m) or Rule 6(b)" where
  plaintiff shows good cause for delay, and that court "might be able to do
  so even in the absence of good cause"); see, e.g., United States v.
  McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006) (allowing Rule 6(b)
  extensions for time for service when plaintiff fails to meet a previously
  granted Rule 4(m) extension); McGuire v. Turnbo, 137 F.3d 321, 324 (5th
  Cir. 1998) ("Under Rule 6(b)(2), a court may extend the 120 day period if
  failure to serve resulted from excusable neglect."); Mendez v. Elliot, 45
  F.3d 75, 79 (4th Cir. 1995) ("Both Rule 4(m) and Rule 6(b) allow the
  district court discretion to extend the time for service."); Paden v.
  Testor Corp., 2004 WL 2491633 at * 2 (N.D. Ill. 2004) (considering
  discretionary standards of Rules 4 and 6 to be "essentially the same," and
  stating "[w]hile Rule 4(m) itself arguably does not provide for an
  extension of time prior to a failure to serve a defendant, clearly Rule 6
  allows for such an extension prior to the expiration" of the initial
  deadline); see also Henderson v. United States, 517 U.S. 654, 662-63 (1996)
  (stating "clear message" under federal rules that "[c]omplaints are not to
  be dismissed if served within 120 days, or within such additional time as
  the court may allow," and describing court's "discretion to enlarge the
  120-day period even if there is no good cause shown" (quotations omitted)). 
   
       ¶  9.  We are not persuaded, as defendant contends, that the Vermont
  rules prohibit extensions for service because our Rule 4, unlike the
  federal Rule 4(m), fails to provide for them.  The fact that our Rule 4 is
  not identical to the federal rule in this instance compels no such
  prohibition where commentary to other rules, as well as our case law above,
  is to the contrary.  See In re Estate of Cote, 2004 VT 17, ¶ 15, 176 Vt.
  293, 848 A.2d 264 (resolving ambiguity from statutory silence through
  consideration of statutory scheme as a whole); N. Singer, 3A Statutes and
  Statutory Construction § 67:14 (6th ed. 2003 Rev.) (describing use of
  canons of statutory construction to procedural rules; equating notes and
  opinions of rule drafters to notes of code revisors).  Moreover, the plain
  language of Rule 6 makes it applicable to any time limit, except those
  specifically exempted from its scope. Time for service is not one of the
  expressly excluded time limits.  See Payne v. Rozendaal, 147 Vt. 488, 500,
  520 A.2d 586, 593 (1986) (applying "long established and applied maxim of
  statutory construction, inclusio unius est exclusio alterius, [the
  inclusion of one thing [in a statute] implies the exclusion of others]").  

       ¶  10.  In sum, we are not inclined to depart from our precedent and
  the interpretive notes to give different meaning to Rules 3 and 6 than that
  previously recognized.  Instead, we make explicit what has been implicit
  all along-a properly granted Rule 6 extension can extend time for service
  under Rule 3.   

       ¶  11.  Defendant nevertheless maintains that even if such extensions
  are permitted by the rules, the effect will be to impermissibly enlarge the
  limitation periods set forth by the Legislature.  Here, defendant's
  argument is internally inconsistent.  Although he claims that his dismissal
  is proper because he was served after the running of the statute of
  limitations, he does not expressly challenge Rule 3's award of sixty days
  to complete service irrespective of the statute of limitations.  Thus, he
  recognizes the general principle that even though a statute of limitations
  expires before service of a filed complaint is completed, the action is
  valid as long as service occurs in a timely fashion.  This is the implicit
  holding of Weisburgh.  
   
       ¶  12.  Defendant's distinction between the two rules in this regard
  is untenable; whether the period for service is set by Rule 3 or Rule 6 is
  of no constitutional import.  Taken to its logical conclusion, defendant's
  argument would render Rule 3 unconstitutional whenever the sixty-day period
  expired after the statute of limitations.  We now expressly reject this
  proposition, as we implicitly rejected it in Weisburgh.  A plaintiff need
  not file a complaint and complete service before the statute of limitations
  expires.  Rather, where an action is commenced by the timely filing of a
  complaint, Weisburgh permits the statute of limitations to be tolled such
  that service may be completed after the limitation period has run so long
  as it is completed in a timely manner under the rules.  136 Vt. at 595, 396
  A.2d at 1389.   To hold otherwise would effectively render tolling under
  Weisburgh meaningless.

       ¶  13.  Finally, the argument that extensions for service circumvent
  the statute of limitations is belied by the fact that, under Weisburgh, the
  date the complaint is filed controls the tolling of a statute of
  limitations.  Id.  Plainly, Rule 6 would not apply to the initial filing of
  a complaint when no other act to commence the action had been taken because
  the rule is limited to acts controlled by the procedural rules or by the
  court.  V.R.C.P. 6(b).  The date by which one must initiate an action is
  controlled by statute.  The time permitted for service once a complaint has
  been filed, on the other hand, is a procedural matter controlled by the
  rules.  

       ¶  14.  Critically, this is not a case involving any abuse of
  extensions.  Plaintiff properly obtained a Rule 6(b)(1) enlargement prior
  to the expiration of the original time prescribed, and it completed service
  days later.  Neither plaintiff's diligence, nor the appropriateness of the
  Rule 6(b)(1) extension, is at issue here.  While another set of facts may
  call into question the appropriateness of repeated extensions for service
  under Rule 6, this is not such a case.  

       Affirmed.  



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice 



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                                  Footnotes

FN1.  Mr. Bessette's parents were dismissed as plaintiffs.
