LEON S. FINKEL vs. NATALE ROTA, INC.

ARMSTRONG J. From their inception the Federal Rules of Civil Procedure placed on the clerk of the District Court the function of issuing process for service on defendants. [Note 1] The clerk, of course, has no occasion to prepare process until the complaint has been filed in court. The adaptors of the Massachusetts

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Rules of Civil Procedure made different provision for process. Doubtless in response to the sheer volume of litigation in the State courts and the realities of staffing limitations in clerks' offices, they put the onus of preparing process exclusively on the plaintiff, who is to deliver the summons and a copy of the complaint to a sheriff or other qualified process-server. Mass.R.Civ.P. 4(a), 365 Mass. 733 (1974). The latter is to serve the process and file his return promptly in court. Mass.R.Civ.P. 4(c), (d), (f). Thus can arise under the Massachusetts rules a problem that will not, as a practical matter, occur in Federal practice: What happens if, as in this case, service of process is made before the action is commenced? [Note 2]

Rules 3 and 4 may be said to contemplate that commencement of the action will precede service of process, although the wording [Note 3] may be read more as an assumption than as a mandate. [Note 4] Where the order is reversed, there is a fair probability that any question as to the validity of the premature service will be vitiated before the defendant even realizes that the question exists. The summons will not tell the date the complaint was filed; and the defendant's act of appearing and answering in the normal course without raising the question would constitute a waiver of any possible defense along these lines. See Mass.R.Civ.P. 12(h)(1), 365 Mass. 757 (1974); Branic v. Wheeling Steel Corp., 152 F.2d 887, 888 (3d Cir.

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1945), cert. denied, 327 U.S. 801 (1946); Pila v. G.R. Leasing & Rental Corp., 551 F.2d 941, 942-943 (1st Cir. 1977). See also Cohn v. Cohn, 310 Mass. 126, 129 (1941). Here, however, the defendant was defaulted and did not even respond in timely fashion to the notice it received of the hearing on the assessment of damages. Thus, the case went to judgment on May 10, 1983, with no appearance or answer having been filed by the defendant.

On May 19, 1983, the defendant, having finally engaged counsel, filed a motion for relief from judgment. The procedural quirk had still not been noticed: other grounds were assigned. The judge understandably concluded that the defendant's failure to respond to the original summons or to the notice of the assessment hearing did not constitute "excusable neglect" within the meaning of Mass.R.Civ.P. 6(b)(2), 365 Mass. 747 -748 (1974), or rule 60(b)(1), 365 Mass. 828 (1974). Compare Old Colony Bank & Trust Co. v. Tacey Transp. Corp., 10 Mass. App. Ct. 825 (1980), and Lancaster v. Foley, 15 Mass. App. Ct. 967, 968 (1983). For less persuasive reasons the judge also concluded that the defendant had not shown a meritorious defense -- a usual requirement for one who wishes to remove a default judgment and answer late. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433 (1979).

Several months later, in the course of preparing an appeal, new counsel noticed that service had been made on September 21, 1982, but that the complaint had not been filed in the clerk's office until September 30, 1982. A second motion for relief from judgment was prepared, based on a contention that service before the commencement of the action was, as matter of law, a nullity, that the court had not acquired personal jurisdiction over the defendant before the entry of judgment, and hence that the judgment was void. See rule 60(b)(4), 365 Mass. 829 (1974). Another judge acted on this motion, denying it with the notation that the "issue is a technical one and not one of substance since the defendant had timely notice of the claim."

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The concept that service giving notice of a then nonexistent action gives notice of nothing and is thus, in legal effect, a nullity, has a certain metaphysical appeal but is out of tune with the relentlessly functional approach of the new rules. More weighty now is that the defendant was in fact given notice and was not prejudiced by the prematurity. In addition, history gives little support to the notion that service is defunct absent a then-pending action. In our earlier practice in actions at law, the writ was always served on the defendant before the declaration was required to be filed in court. See Mottla, Civil Practice Sections 213, 238, 453 (3d ed. 1962). [Note 5]

The defendant urges that strict adherence to the priority assumed by the rules is essential to guarantee that the complaint served on the defendant is the same as that filed in court. A discrepancy in this regard can present a problem (see, e.g., Utility Mfg. Co. v. Elgin Lab., 1 F.R.D. 165 [S.D. N.Y. 1939]; Phillips v. Murchison, 194 F.Supp. 620 [S.D. N.Y. 1961]), but there was no discrepancy in this case. Puzzlement may occur if the answer should be filed before the complaint, but, again, that did not happen here. A more practical complication might be found in measuring the twenty-day period for filing an answer, [Note 6] but we should prefer to adjust by measuring from the commencement of the action where that follows service, rather than by adopting an interpretation that could potentially undo judgments long since assumed to be conclusive.

Orders denying motions for relief from judgment affirmed.