DOLARES T. AHERN vs. LAURENCE E. WARNER & another. [Note 1]

WARNER, J. The plaintiff appeals from a judgment dismissing her complaint for failure to make service of process within a reasonable time. The complaint, which seeks injunctive relief and money damages, alleges that the defendants failed to maintain a retaining wall on property adjoining the plaintiff's, and was filed in the Superior Court on April 12, 1978. The summonses were issued twenty-two months later, on February 8, 1980, and the summons and complaint were served on the defendant Finn on February 11, 1980, and on the defendant Warner on February 12, 1980. The defendant filed an answer and an amended

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answer. In their amended answer the defendants raised defenses of insufficiency of process and of service of process, and of the statute of limitations. The plaintiff and both defendants filed interrogatories and answers to interrogatories during the months following service, the last filed being the answers of the defendants on September 17, 1981. A motion of the defendants to dismiss due to the delay in service was filed on November 2, 1981.

The defendants' motion to dismiss, made pursuant to Mass.R.Civ.P. 12(b)(5) and 12(b)(6), 365 Mass. 755 (1974), alleges that the twenty-two month delay between the filing of the complaint and service of process was insufficient service, that the delay constituted "a lack of due diligence in prosecuting the plaintiff's action which substantially prejudices the defendants," and that the delay in service barred the plaintiff's action under the statute of limitations. The motion judge ruled: "The above entitled motion to dismiss . . . is allowed because of the prejudice to the defendant occasioned by the failure to make service within a reasonable period of time. Specifically, it would appear that had the action been commenced on or about the time service had been made, it would have been barred by the statute of limitations."

1. In examining a motion under our rules of civil procedure, we often look to cases construing the comparable Federal rules. Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975). See Farley v. Sprague, 374 Mass. 419, 423-424 (1978); School Comm. of Holyoke v. Duprey, 8 Mass. App. Ct. 58, 60-61 (1979). In the Federal courts, a motion and order to dismiss a complaint due to a delay in service of process are normally made on the grounds of failure to prosecute pursuant to Fed.R.Civ.P. 41(b). 2 Moore's Federal Practice par. 4.06-1, at 4-80 (2d ed. 1982). See, e.g., Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1278 (9th Cir. 1980); DiCostanzo v. Chrysler Corp., 71 F.R.D. 223, 224 (D. Mass. 1976). That Federal rule has "the identical purpose and intent" as the cognate Mass.R.Civ.P. 41(b)(2),

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365 Mass. 804 (1974). School Comm. of Holyoke v. Duprey, supra at 60.

Although the defendants' motion and the judge's order and judgment were mislabeled as actions taken pursuant to rules 12(b)(5) and 12(b)(6) (when they should have been taken pursuant to rule 41[b][2]), we treat the motion according to its obvious character rather than its label. "The liberality of the . . . Rules is such that erroneous nomenclature does not prevent the court from recognizing the true nature of a motion." Sacks v. Reynolds Sec., Inc., 593 F.2d 1234, 1239 (D.C. Cir. 1978), quoting from Owen v. Kronheim, 304 F.2d 957, 959 (D.C. Cir. 1962). See Quabaug Rubber Co. v. Fabiano Shoe Co., 567 F.2d 154, 158 (1st Cir. 1977); E.S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110 (1928); Tierney v. Tierney, 332 Mass. 414, 416-417 (1955); Beaton, petitioner, 354 Mass. 670, 671 (1968).

2. The defendants' motion raises only the issue of the consequences of the delay in service of process. The statute of limitations is urged as a bar to an action brought at the time service was made and not as a bar to the action when filed. (The amended answer does raise the statute of limitations as a defense.) The judge rules that the defendants were prejudiced by the delay in service because, he concluded, had the action been commenced at the time of service, it would have been barred by the statute of limitations.

There was error for two reasons: (a) there is no indication in the record that the statutory period of limitations had expired before service was made, and (b) when a complaint is timely filed, the expiration of the statutory period of limitation before service of process does not ordinarily, without more, provide sufficient grounds for the dismissal of the complaint.

(a) The complaint alleges that a nursing home was built on property adjoining property belonging to the plaintiff, that the nursing home was built at a lower level than the plaintiff's property, and that a retaining wall constructed between the two properties "has proven to be ineffective

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and has been allowed to fall into a state of disrepair . . . ." The complaint may reasonably be interpreted as alleging that the defendants violated their duty to provide lateral support for the plaintiff's land. [Note 2] See Gorton v. Schofield, 311 Mass. 352 (1942); Restatement (Second) of Torts Section 817(1) and comment k (1979). That duty is a continuing one which may subject the owner of the supporting land to liability and to mandatory injunction whenever a substantial subsidence in the supported land occurs. Restatement (Second) of Torts Section 817(1) comment i; Sections 933-943; Section 936(1) comments e and f. The statute of limitations begins to run anew when each substantial subsidence occurs and not just from the occurrence of the first such subsidence, or from the first act or omission which permitted it. Id., Section 817(1) comment i. 5 Powell, Real Property par. 699, at 290-291 (Rohan ed. 1981). See Sixty-Eight Devonshire, Inc. v. Shapiro, 348 Mass. 177, 183-184 (1964). The applicable statute of limitations provides that the action shall be commenced before the expiration of three years from the date when the cause of action accrues. G. L. c. 260, Section 2A, as amended by St. 1973, c. 777, Section 1. [Note 3] See Sixty-Eight Devonshire, Inc. v. Shapiro, supra at 183, where G. L. c. 260, Section 2A, was applied to a somewhat similar cause of action. Unless the last substantial subsidence occurred more than three years before service of process, an action would not have been barred by the limitation period had the complaint been filed when service was made.

There is nothing in the record which indicates whether any substantial subsidence occurred prior to the filing of the

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complaint and subsequent to the plaintiff's first observance of defects in the retaining wall in 1967 or 1968. Consequently, there is no basis for the motion judge's ruling that the limitation period had run prior to service of process.

(b) Although what we have said is dispositive of the appeal, we think it appropriate to express further our views on questions involving the application of the statute of limitations which may arise in subsequent proceedings. Ordinarily an action is not automatically barred by the statute of limitations if the complaint is timely filed but service of process occurs after the limitation period. School Comm. of Holyoke v. Duprey, 8 Mass. App. Ct. at 60-62, and cases cited. See 4 Wright & Miller, Federal Practice and Procedure Section 1056 (1969). Mass.R.Civ.P. 3, as amended, [Note 4] provides that an action commences upon the mailing or filing of the complaint. There is no provision in our rules of civil procedure specifying when service of process must be made. See Mass.R.Civ.P. 4(a), 365 Mass. 733 (1974).

"The mere passage of time does not require a dismissal; it must constitute prejudice to the defendants, afford the plaintiff[ ] an unfair tactical advantage, or involve harassment of the defendants. Delay brings into question the plaintiff['s] good faith and due diligence, which, in the absence of extreme delay, must be balanced against the prejudice caused to the defendant[s]. . . . There is no reason why there must be a dismissal as matter of law where the action has been timely commenced but there has been a delay in service of the summons." School Comm. of Holyoke v. Duprey, supra at 60-62 (citations and footnote omitted) (service of process seven months after filing of complaint did not require dismissal absent a showing of prejudice).

While dismissal is within the sound discretion of the judge (School Comm. of Holyoke v. Duprey, supra at 60), here

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the judge appears to have presumed a sufficient showing of prejudice solely by virtue of his conclusion that the limitation period had expired. Even if such conclusion was permissible, there is nothing in the record to indicate a showing of actual prejudice. Absent a showing of such prejudice, the complaint may not be dismissed. There may occur some situations in which the delay in service has been so long that prejudice resulting from the delay may be presumed. [Note 5] We hold that a delay of twenty-two months is not such a situation where, as here, the plaintiff has alleged facts indicating a breach of the continuing duty of lateral support of her land.

3. Since there can be a new cause of action [Note 6] with each substantial subsidence of supported land when there has been a breach of the duty of lateral support, the question remains as to the appropriate limitation period when there has been a significant delay in service of process.

If there is no showing of actual prejudice to the defendants due to the delay in service, the limitation period stops

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running on the date when the complaint is filed. Harrison v. Textron, Inc., 367 Mass. 540, 552 (1975). If the defendants can show actual prejudice due to the delay in service, any causes of action affected thereby, and which would be barred as of the date of service, may be dismissed under a motion pursuant to rule 41(b)(2). [Note 7] The prejudice which would support dismissal includes any circumstance which would significantly impair a defense of the claim (see Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d at 1281), but not potential damages from the continuing tort.

The judgment is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered.