Caisse v. Dubois, 346 F.3d 213, 1st Cir. (2003)
Caisse v. Dubois, 346 F.3d 213, 1st Cir. (2003)
3d 213
This is an appeal from the district court's denial of plaintiff Jesse Caisse's
motion to vacate judgment pursuant to Fed.R.Civ.P. 60(b). The district court
dismissed Caisse's action because he failed to serve the defendants with process
even after receiving multiple extensions of time to do so. Caisse sought to
vacate the judgment, claiming that he served the defendants in a timely fashion.
Because the district court did not abuse its discretion in denying Caisse's Rule
60(b) motion, we affirm.
I.
2
After filing suit, Caisse did not attempt to serve the defendants for over two
years. He received three extensions of time from the district court to effect
service, the last of which expired on October 25, 2002. Three days before the
October 25th deadline, Caisse finally attempted to serve the defendants. On
October 22, 2002, Caisse sent summonses and copies of the complaint by
certified mail to each of the Department of Corrections defendants care of the
Boston office of the Massachusetts Attorney General. Also on October 22,
2002, Caisse sent a summons and a copy of the complaint by certified mail to
the county defendant at the office of the Treasurer for Hampden County. Caisse
did not serve any of the defendants personally or at their homes on or before the
October 25th deadline.2
The October 25th deadline came and went without Caisse filing proof of
service with the district court. As a result, on November 26, 2002, the district
court dismissed the case. On December 4, 2002, Caisse filed a Rule 60(b)
motion to vacate the dismissal.3 The district court denied the motion, and
Caisse appealed.
II.
5
III.
6
Caisse claims that the district court abused its discretion in denying his Rule
60(b) motion because he properly served each of the defendants before the
October 25th deadline. He also argues that the district court abused its
discretion in denying his Rule 60(b) motion because "all cases should be
decided on their merits." These arguments fail. Caisse did not serve the
defendants by the October 25th deadline, except for counts five and six of the
complaint, alleging state-law, negligence claims, which he timely served only
on the Department of Corrections defendants. However, his negligence claims
are entirely without merit, making relief from judgment unwarranted.
The parties begin their arguments from a shared but flawed premise concerning
the Rule of Civil Procedure applicable to this case. They contend that, because
a suit against a public employee in his or her official capacity is essentially a
suit against the government, see Kentucky v. Graham, 473 U.S. 159, 165-66,
105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), service of Caisse's official capacity
claims is governed by Fed. R.Civ.P. 4(j)(2), which provides the method of
service on states and other non-federal, government entities.
official capacity, Caisse had to comply with Fed.R.Civ.P. 4(e), providing for
service of process on individuals. See id. at 30.
9
Federal Rule of Civil Procedure 4(e) specifies two ways in which Caisse could
have served process. First, he could have delivered the summons and a copy of
the complaint to the individuals personally, or he could have left them at their
dwelling houses or usual places of abode. See Fed. R.Civ.P. 4(e)(2). Second, he
could have served process in a manner sanctioned by Massachusetts law. See
Fed.R.Civ.P. 4(e)(1). Caisse did not serve the defendants in accordance with
Fed.R.Civ.P. 4(e)(2), so we train our focus on the service requirements under
Massachusetts law.
10
11
12
13
There is, however, one additional wrinkle. The Massachusetts Rules of Civil
Procedure yield to specific statutes which establish special service
requirements. See Mass. R. Civ. P. 4(d)(1) ("Service may be made ... to an
agent authorized ... by statute."). Caisse's state-law, negligence claims, set forth
in counts five and six of the complaint, are subject to the statutory service
requirements of the Massachusetts Torts Claims Act (the "Tort Claims Act"),
see Mass. Gen. L. ch. 258, 1 et seq., which differ from the service
requirements of the Massachusetts Rules of Civil Procedure.7 Therefore, even
though he did not comply with the Massachusetts Rules of Civil Procedure,
Caisse could effectively serve the negligence claims by complying with the
requirements of the Tort Claims Act.
14
The Tort Claims Act authorizes service on the Commonwealth, state agencies,
and state employees by serving the Attorney General. See Mass. Gen. L. ch.
258, 6. By mailing summonses and copies of the complaint to the Attorney
General on October 22, 2002, Caisse timely served the Department of
Corrections defendants (in both their official and individual capacities) with his
negligence claims.8 Id. Thus, Caisse timely served only counts five and six
(negligent infliction of emotional distress and negligence) on the Department of
Corrections defendants.9
15
Nonetheless, we will not reverse the denial of Caisse's Rule 60(b) motion
merely because Caisse served the negligence claims on the Department of
Corrections defendants in a timely fashion. As discussed earlier, Caisse must
also convince us that he has a realistic chance of succeeding on the merits of his
negligence claims against the Department of Corrections defendants. Karak,
288 F.3d at 19. This he cannot do.
16
17
The district court did not abuse its discretion in denying plaintiff Jesse Caisse's
Fed.R.Civ.P. 60(b) motion because most of his claims were not properly served
and those few claims that were properly served are doomed to fail on the
merits.
19
Affirmed.
Notes:
*
From the Department of Corrections, Caisse named Larry DuBois, the former
Commissioner of Corrections, Michael Maloney, the Commissioner of
Corrections at the time the suit was filed, John Noonan, the director of the
Department of Corrections Health Care Services Division, Diane Silver, the
director of the Department of Corrections Classification Division, and William
Coalter, Department of Corrections Superintendent for MCI Concord (the
"Department of Corrections defendants")
Caisse attempted to serve various defendants after the district court had already
dismissed his suit. On November 29, 2002, Caisse served defendants Michael
Maloney and William Coalter by having a constable leave the summons and a
copy of the complaint at their offices. On December 2, 2002, Caisse served the
county defendant by having a constable leave the summons and a copy of the
complaint at the Hampden County Sheriff's Office
While Caisse did not specify the provision of Rule 60(b) which he sought to
invoke, we assume that his motion was pursuant to Rule 60(b)(1) because that
provision seems most pertinent. It permits relief from judgment in cases of
"mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1)
CitingIn Re Lopez-Soto, 764 F.2d 23 (1st Cir.1985), Caisse argues that the
abuse of discretion standard is not the proper standard of review for a Rule
60(b) motion. In Re Lopez-Soto deals with the ability of a party to intervene in a
bankruptcy proceeding. It does not implicate the standard of review for a Rule
Caisse's federal law claims and intentional infliction of emotional distress claim
are not governed by the service procedures under the Tort Claims Act because
the Tort Claims Act covers only state-law, negligence claimsSee Mellinger v.
West Springfield, 401 Mass. 188, 515 N.E.2d 584, 588-89 (1987).
Caisse never served the Attorney General with process for the county
defendant and therefore did not serve him with the negligence claims under the
Tort Claim Act
In addition to arguing that he timely served the defendants, Caisse could have
argued excusable neglect for his failure to effect serviceSee Fed.R.Civ.P. 60(b)
(1). He has not done so. See Cintron-Lorenzo v. Departamento de Asuntos, 312
F.3d 522, 527 (1st Cir.2002) ("At a bare minimum, a party who seeks relief
from judgment on the basis of excusable neglect must offer a convincing
explanation as to why the neglect was excusable."). Caisse's contention that
regardless of his failure to serve the defendants "all cases should be decided on
the merits" does not suffice to raise the excusable neglect issue.