December 4, 2018



                                                                      Supreme Court
                                                                      No. 2017-132-A.
                                                                      (KC 10-33)


                   Antonio P. Duffy                :

                          v.                       :

        Town of West Warwick, by and through its :
         Finance Director, Malcolm Moore, et al.



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                                                                  Supreme Court
                                                                  No. 2017-132-A.
                                                                  (KC 10-33)


             Antonio P. Duffy                 :

                     v.                       :

Town of West Warwick, by and through its :
 Finance Director, Malcolm Moore, et al.


               Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

                                         OPINION

       Justice Indeglia, for the Court. The plaintiff, Antonio P. Duffy, appeals from a final

judgment of the Superior Court granting the defendants’ motion to dismiss pursuant to Rule

41(b)(2) of the Superior Court Rules of Civil Procedure. This matter came before this Court on

November 8, 2018, pursuant to an order directing the parties to appear and show cause why the

issues raised should not be summarily decided. After considering the arguments set forth in the

parties’ memoranda and at oral argument, we are convinced that cause has not been shown.

Thus, further argument or briefing is not required to decide this matter. For the reasons outlined

below, we affirm the judgment of the Superior Court.

                                                  I

                                        Facts and Travel

       The pertinent facts of this case are as follows. Sometime between December 2007 and

June 2008,1 plaintiff was arrested, and allegedly assaulted, by uniformed officers of the West



1
  At the hearing on defendants’ motion to dismiss, defendants indicated that the incident
occurred on May 28, 2008, while plaintiff’s counsel stated that “it happened in around [sic]
2007, December, 2008.” We note that the complaint alleges that the incident occurred on May
18, 2008.
                                               -1-
Warwick Police Department. Subsequently, on January 8, 2010, plaintiff, through his then-

attorney, filed the instant action in Kent County Superior Court against Michael J. Nye and

Stephen J. Blais—two officers of the West Warwick Police Department—and the Town of West

Warwick. Service, however, was not completed at that time. More than five years elapsed

before plaintiff retained a new attorney in January 2015; and, on February 24, 2015, plaintiff had

copies of the complaint and summonses served upon defendants.

       In response, on March 5, 2015, defendants, in lieu of filing an answer, and in accordance

with Rule 41(b), filed a motion to dismiss based on lack of prosecution and failure to serve

process upon defendants within the time required in Rule 4(l) of the Superior Court Rules of

Civil Procedure. In their memorandum in support of that motion, defendants argued that:

               “Plaintiff effectuated personal service of the [d]efendants more
               than five (5) years after the complaint was filed in the Superior
               Court and close to seven (7) years after the alleged incident. As
               such, pursuant to Rule 4([l]), this matter should be dismissed for
               failure to obtain service.”

The defendants went on to state: “In addition, under Rule 4l(b)(l), the [p]laintiff has failed to

prosecute this action for over five (5) years.”

       A hearing on the motion was held on April 27, 2015, at which defendants reiterated the

arguments that they had advanced in their memorandum. In response, plaintiff highlighted his

previous attorney’s failure to serve process within the preceding five years. He further noted that

the complaint had been served immediately after plaintiff retained new counsel. The plaintiff

admitted, however, that both the hiring of new counsel and service of the complaint were

accomplished after the five-year period set forth in Rule 41(b)(1) had elapsed.2 Despite the lapse




2
 “The court may, in its discretion, dismiss any action for lack of prosecution where the action
has been pending for more than five (5) years, or, at any time, for failure of the plaintiff to
                                                  -2-
of time, plaintiff argued that the “savings section in the statute” allowed the motion justice to

reinstate the case, “upon a showing of preventing injustice.”3 Finally, plaintiff averred that this

case fit the factual scenario required for the action to proceed, because he had served process and

was ready to engage in discovery. The motion justice inquired into the reason for the delay in

service, to which plaintiff’s new attorney replied: “[I]t’s through no fault of Mr. Duffy himself,

but his previous counsel who—.” The motion justice cut short this argument, stating: “Mr.

Duffy acts through his attorney. If Mr. Duffy has a problem, he gets into a problem because of

the neglect of his attorney * * *.”

       In the end, the motion justice dismissed the action, with prejudice, under Rule 41(b). He

based his ruling on the length of time that the case had lain dormant, noting that “both parties at

some point in time after an incident occurred and after suit is filed have a right to think that, you

know, things should have been settled.” The court cited to our opinion in the case of Norcliffe v.

Resnick, 694 A.2d 1210 (R.I. 1997), holding that prejudice to the defendant was not a necessary

consideration in this case. On May 4, 2015, an order entered granting defendants’ motion to

dismiss with prejudice; and, on May 12, 2015, plaintiff timely appealed to this Court. However,

we remanded the case for entry of final judgment; and, on September 8, 2016, final judgment

entered.4 Plaintiff then submitted an amended notice of appeal on March 9, 2017.




comply with these rules or to proceed when the action is reached for trial.” Super.R.Civ.P.
41(b)(1).
3
  The statute that plaintiff likely referred to is G.L. 1956 § 9-8-6, which provides: “Any case
dismissed under §§ 9-8-3—9-8-5, may be reinstated by the court with or without terms upon
motion within one year from dismissal, if the court deems it proper to prevent injustice.”
(Emphasis added.) Section 9-8-3 is the statutory authority for Rule 41(b) of the Superior Court
Rules of Civil Procedure. Compare § 9-8-3 with Super.R.Civ.P. 41(b). Thus, § 9-8-6 would
provide authority for a motion justice to reinstate a case that is involuntarily dismissed under
Rule 41(b).
4
  It appears that the delay in the appellate process was due in part to that remand.
                                                -3-
                                                 II

                                       Standard of Review

        “It is well settled that abuse of discretion is ‘the applicable standard to be used by [this

Court] when reviewing a [motion] justice’s dismissal of a civil action for lack of prosecution,’

pursuant to Rule 41(b).” Cotter v. Dias, 130 A.3d 164, 168 (R.I. 2016) (quoting Coates v. Ocean

State Jobbers, Inc., 18 A.3d 554, 558 (R.I. 2011)). “Thus, ‘this Court must determine whether

[the motion justice’s] findings are supported by the evidence or whether in making such findings

[he or she] misconceived or overlooked any material evidence.’” Id. (quoting Coates, 18 A.3d at

558).

                                                III

                                            Discussion

        In this appeal, plaintiff argues that the motion justice abused his discretion in granting

defendants’ motion to dismiss under Rule 41(b)(2) because the court failed to consider whether

the defendants had suffered any prejudice from plaintiff’s five-year delay in serving the

complaint. We disagree.

        Rule 41(b)(2) states: “On motion of the defendant the court may, in its discretion, dismiss

any action for failure of the plaintiff to comply with these rules or any order of court, or for lack

of prosecution as provided in paragraph (1) of [Rule 41(b)].” (Emphasis added.) Involuntary

dismissal for any reason under Rule 41(b), “other than a dismissal for lack of jurisdiction or for

improper venue or for lack of an indispensable party, operates as an adjudication upon the

merits[,]” and, thus, is a dismissal with prejudice. Super.R.Civ.P. 41(b)(3). Accordingly, Rule

41(b)(2) clearly grants discretion to a motion justice to dismiss a case with prejudice in one of

two manners, which have differing requirements under our caselaw.



                                                -4-
          First, “[i]n considering a dismissal motion [under Rule 41(b)(2) for lack of prosecution],

a trial justice must weigh the equities between the parties.” Cotter, 130 A.3d at 168 (quoting

Coates, 18 A.3d at 560). “On the one hand is the court’s need to manage its docket, the public

interest in the expeditious resolution of litigation, and the risk of prejudice to the defendants from

delay, and [o]n the other hand, there is the desire to dispose of cases on their merits.” Id. (quoting

Coates, 18 A.3d at 560). “When weighing the equities, the court ‘need not view the evidence in

a light most favorable to the plaintiffs.’” Id. (quoting Bergeron v. Roszkowski, 866 A.2d 1230,

1237 (R.I. 2005)). “Also, it is well settled in our jurisprudence that ‘[m]ere delay is not enough

to warrant dismissal for lack of prosecution.’” Id. (quoting Harvey v. Town of Tiverton, 764 A.2d

141, 143 (R.I. 2001)).

          Second, we have held that “[p]ursuant to Rule 41(b)(2) * * * a trial justice may grant a

defendant’s motion to dismiss for a plaintiff’s failure to comply with the rules of civil

procedure.” Norcliffe, 694 A.2d at 1212.           More specifically, “[a]n unreasonable delay in

procuring service of process constitutes noncompliance with Rule 4 * * * for which dismissal

may be granted pursuant to Rule 41(b)(2).”5 Id. From our review of the record, this was the

basis for the motion justice’s dismissal in the present case.




5
    Rule 4(l) provides, in pertinent part:

                  “If service of the summons, complaint, Language Assistance
                  Notice, and all other required documents is not made upon a
                  defendant within one hundred and twenty (120) days after the
                  commencement of the action the court upon motion or on its own
                  initiative after notice to the plaintiff, shall dismiss the action
                  without prejudice as to that defendant or direct that service be
                  effected within a specified time; provided that if the plaintiff shows
                  good cause for the failure, the court shall extend the time for
                  service for an appropriate period.”
                                                  -5-
       In Norcliffe, the case cited by the motion justice, the defendant filed a motion to dismiss

under Rule 41(b)(2) for failure to serve process within a reasonable time, after the plaintiff had

waited fourteen months to serve the complaint and summons. Norcliffe, 694 A.2d at 1211.

Without determining that the defendant had been prejudiced by the delay, the trial justice in that

case held that the delay in service was unreasonable and dismissed the complaint under Rule

41(b)(2). See id. at 1211-12. On appeal, in response to the plaintiff’s request that we “require a

showing of prejudice to the defendant as a precondition to dismissal under Rule 41(b)(2)[,]” we

held that “[a] showing of prejudice * * * is not required to sustain a trial justice’s dismissal of

the complaint for a plaintiff’s failure to comply with the requirements of Rule 4.” Id. at 1212

(emphasis added). We also noted that the “plaintiffs’ fourteen-month delay in effectuating

service on defendant [was] presumptively unreasonable.” Id. This Court then went on to hold:

“Having found that the fourteen-month delay in effecting service of process was unreasonable

and inexcusable, the trial justice did not abuse his discretion in dismissing the complaint.” Id.

       Here, plaintiff posits that the motion justice abused his discretion because the court did

not consider the possible prejudice to defendants from the delay in service. The plaintiff offers

no explanation for the delay, but instead proffers that he should not suffer for his previous

attorney’s lack of diligence. In ruling on defendants’ motion to dismiss, the motion justice held:

               “And I think the point that has to be made here is that where
               there’s a delay of this magnitude, seven years from the time of the
               incident, five years from the time of the filing of the complaint and
               absolutely nothing has happened, that a message has got to be sent
               that the rules—we might as well just throw the rules away if we
               allow this lawsuit to be re-filed. I think this is a classic case of
               where Rule 41(b) should require a dismissal with prejudice.”

Although the motion justice acknowledged that he “ha[d]n’t heard anything from the

[d]efendant[s] to show that they ha[d] been prejudiced by the delay,” he specifically cited our



                                                -6-
holding in Norcliffe, that a showing of prejudice was not necessary to rule on a Rule 41(b)(2)

motion for failure to comply with Rule 4. See Norcliffe, 694 A.2d at 1212.

         Given the five-year delay in serving the complaint, which is significantly longer than the

fourteen-month delay that we held was “presumptively unreasonable” in Norcliffe, and the lack

of any explanation for such delay, we cannot say that the motion justice abused his discretion in

dismissing the plaintiff’s complaint under Rule 41(b)(2). Norcliffe, 694 A.2d at 1212; see Ricci v.

Ricci, 689 A.2d 1051, 1053 (R.I. 1997) (holding that a seven-and-one-half-month delay in

service was sufficient for the trial justice to dismiss a complaint under Rule 41(b)(2), where

plaintiff failed to proffer a good cause for the delay). We note that “‘[t]he widest discretion must

be given to calendar justices and trial justices’ in managing a trial calendar, a task that is ‘among

the most difficult of all judicial assignments.’” Coates, 18 A.3d at 558 (quoting Bergeron, 866

A.2d at 1235). Moreover, one of the main purposes of Rule 41(b) is to ensure the efficient and

expeditious resolution of controversies; this purpose would be undermined were we to allow

plaintiff to proceed with his complaint, even if his previous attorney was responsible for the

delay.    See Harvey, 764 A.2d at 143.            Therefore, we affirm the final judgment granting

defendants’ motion to dismiss pursuant to Rule 41(b)(2).

                                                    IV

                                                 Conclusion

         For the reasons stated herein, we affirm the judgment of the Superior Court. We remand

the papers to that tribunal.


         Justice Flaherty did not participate.




                                                    -7-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Antonio P. Duffy v. Town of West Warwick, by and
Title of Case
                                     through its Finance Director, Malcolm Moore, et al.
                                     No. 2017-132-A.
Case Number
                                     (KC 10-33)
Date Opinion Filed                   December 4, 2018

Justices                             Suttell, C.J., Goldberg, Robinson, and Indeglia JJ.

Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Kent County Superior Court

Judicial Officer From Lower Court    Associate Justice Bennett R. Gallo
                                     For Plaintiff:

                                     Bradley M. Orleck, Esq.
Attorney(s) on Appeal
                                     For Defendants:

                                     Kathleen A. Hilton, Esq.




SU-CMS-02A (revised June 2016)
