
USCA1 Opinion

	




                            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                                      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                                      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-
