MARK HANSON vs. DAMEL VENDITELLI & another [Note 1]

DREBEN, J. This negligence action arising out of an automobile accident in Massachusetts was brought against two Rhode Island residents, the owner and the operator of the vehicle that collided with the plaintiff's vehicle. The question on this appeal is whether the judge erred in denying the defendants' motion to dismiss for lack of jurisdiction due to the failure of the plaintiff to comply with G. L. c. 90, s. 3C, which is set forth in the

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margin [Note 2]. We conclude that the action should have been dismissed.

The accident occurred on January 26, 1994, and the complaint was filed on December 30, 1996. Although the plaintiff served the registrar of motor vehicles on January 10, 1997, he did not

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give the defendants notice as provided in either paragraphs one or two of s. 3C. He neither mailed the defendants notice of his having served the registrar nor did he have the defendants served by a public officer. Instead, on March 27, 1997, a legal assistant in the plaintiff's counsel's office wrote a letter to Arthur Venditelli's insurer, Peerless Insurance Company, informing that an action had been filed and that service had been made on the registrar on behalf of the Venditellis pursuant to c. 90, s. 3A. Previously, on July 8, 1994, the plaintiff's counsel had notified the insurer that he represented the plaintiff in a claim for personal injuries.

On April 15, 1997, the defendants, arguing that the Superior Court was without jurisdiction because the plaintiff had failed to comply with s. 3C, filed a motion to dismiss. The plaintiff, claiming "excusable neglect" under Mass.R.Civ.P. 6(b), 365 Mass. 747 (1974), and pointing out that the ninety-day time limit of Mass.R.Civ.P. 4(j) [Note 3], as amended, 402 Mass. 1401 (1988), had only expired on March 31, 1997, countered with a motion to enlarge time in which to perfect service of process. The motion was accompanied by an affidavit of counsel stating that counsel had been ill between March 12 and March 25, 1997. A judge of the Superior Court allowed the plaintiff's motion, finding excusable neglect on the part of counsel and noted that because the defendant's insurer received actual notice of the action approximately ninety days after the action had been brought, the defendants were not prejudiced by the delay.

The defendants sought relief from a single justice of this court and an interlocutory appeal was allowed.

In upholding the Massachusetts statute providing for service on nonresidents, the Supreme Court in Hess v. Pawloski, 274 U.S. 352, 356 (1927), noted that c. 90 requires that the nonresident "shall actually receive and receipt for notice of the service and a copy of the process." While the statute was amended by St. 1937, c. 387, to provide that the defendant's return receipt shall be filed only "if received by the plaintiff," both proper and "forthwith" notice to the defendant continue to be critical requirements under our cases. The plaintiff has satisfied neither. Nor has he shown that the failure to receive notice

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was due to the acts of the defendants as in Crete v. Audet, 353 Mass. 725, 730 (1968).

We need not decide whether actual notice would relieve the plaintiff from complying with the statute, although that proposition is most doubtful since the giving of the statutory notice is a "matter of substance essential to personal jurisdiction of the defendant." Gifford v. Spehr, 358 Mass. 658, 662 (1971) [Note 4]. Nickerson v. Fales, 342 Mass. 194, 200 (1961). See Bond v. Golden, 273 F.2d 265, 268 (10th Cir. 1959) (construing Kansas law).

In any event, the evidence of actual "forthwith" notice is weak. Unlike Duggan v. Ogden, 278 Mass. 432, 436 (1932), where the deviation from the statute, if any (service by a deputy sheriff instead of notice by registered mail), provided the defendant with "an indubitable and actual notice of the proceedings with every opportunity to protect his rights," in this case there is a far cry from such notice.

The only basis relied on by the plaintiff to prove notice to the defendant is that the defendant's insurer had knowledge of the claim against its insured in July, 1994, and also received notice of the action on March 27, 1997. There is no indication in the record that the insurer informed the defendants, let alone of what it informed them or when. Its interest may not have coincided with those of the insured. Moreover, the letter to the insurer, which was mailed more than two and one-half months after service on the registrar, was itself not sent "forthwith [Note 5]." The letters to the insurer did not serve as a valid substitute for service on the defendants.

We turn next to the propriety of the extension given by the judge, purportedly under Mass.R.Civ.P. 6(b). Passing the dubious excuse of the plaintiffs attorney to show excusable neglect - a fourteen-day sickness in March, a period long after any period of time which could be considered "forthwith" - the

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judge was without discretionary power to issue an order of notice under rule 6(b). In Nickerson v. Fales, 342 Mass. at 199, the court viewed s. 3C as providing "the exclusive procedure for notice," and held that G. L. c. 223, s. 84, which gives discretionary power to a judge to allow the service of new process where there is insufficient service of process, could not be used where another statute, that is s. 3C, sets forth an exclusive procedure for giving notice [Note 6]. The "forthwith" requirement could not be avoided by resort to s. 84. The Legislative purpose of the "forthwith" requirement was:

"to secure, as nearly as may be, to a non-resident defendant against whom jurisdiction is attempted under the statute, the same opportunity to defend before trial that he would have if personal service had been made upon him in this State. Opportunity to defend includes timely notice, in order that the testimony of witnesses, which by delay might be lost, may be obtained. The contents of the notice and the time of transmission are matters of substance affecting the validity of the process."

Nickerson, supra at 199-200, quoting from Webb Packing Co. v. Harmon, 39 Del. 22, 29-30 (Super. Ct. 1937).

In Gifford v. Spehr, 358 Mass. at 659, the plaintiffs unsuccessfully attempted to rely on another statute, G. L. c. 260, s. 32, to extend the time for service. The plaintiffs' action had been discontinued because no notice had been sent "forthwith" to the defendant by registered mail, as required by s. 3C. They sought to invoke G. L. c. 260, s. 32, a statute that permits an action dismissed "for any matter of form" to be brought again within a year after the dismissal. See id. at 659 n. I. The court held that timely notice was a matter of substance and not a matter of form and that s. 3C requires "a reasonable and substantially immediate attempt to give the defendant by registered mail actual notice of the litigation . . . to afford the nonresident timely opportunity to defend . . . ." Id. at 661-662. (Emphasis supplied.) Permitting the plaintiff to obtain personal jurisdiction under s. 3C on a nonresident defendant "is a privilege which

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must be carefully exercised in the manner specified in s. 3A3C. These sections are designed to ensure full compliance with the requirements of due process, and particularly to give the nonresident defendant reasonable and timely notice of the proceeding." Id. at 663-664. Thus, the action which had been discontinued because of a failure to send the registered mail notice "forthwith" was not abated "for any matter of form." Id. at 664. A new action could not be brought under G. L. c. 260, s. 32.

Similarly here, the judge did not have discretion under rule 6(b) to avoid the "forthwith" requirement in s. 3C, as that statute provides the exclusive method for giving notice and obtaining personal jurisdiction on nonresident defendants.

Accordingly, the order allowing the plaintiff's motion to enlarge the time for service of process is vacated, and an order dismissing the plaintiff's action shall be entered on the docket of the Superior Court.

So ordered.