SAFETY INSURANCE COMPANY V. BRANDON J. ALLEN

TRESSLER, J. Two years after the entry of a judgment of dismissal entered by the trial court pursuant to Mass. R. Civ. P. 4(j) in this insurance subrogation action, the plaintiff/appellee (plaintiff) moved to vacate the judgment of dismissal. The motion was allowed, and the defendant/appellant (defendant) appealed. After review, this Court reverses the allowance of the motion to vacate the judgment of dismissal.

PRIOR PROCEEDINGS

On June 9, 2017, the plaintiff filed a complaint against the defendant seeking subrogation of insurance payouts the plaintiff made related to motor vehicle accident the defendant was in on June 15, 2014, in Salisbury, Massachusetts. [Note 1] On October 3, 2017, the trial court entered a judgment of dismissal pursuant to Mass. R. Civ. P. 4(j) for failure of the plaintiff to show proof of service of the complaint within 90 days of the filing of the complaint. Nearly two years later, on August 16, 2019, the plaintiff, without citing to any Rule of Civil Procedure, filed a motion to vacate the judgment of dismissal. After a hearing, the trial court, allowed the motion to vacate on September 18, 2019. [Note 2] Subsequently, on July 21, 2020, a default judgment entered against the defendant and damages were assessed in the amount of $52,743.59. The defendant appealed [Note 3] and the matter was entered in this Court on August 26, 2020.

FACTS

I. The underlying claim

On June 15, 2014, the defendant was driving a car involved in an accident with another car insured by the plaintiff on Elm Street in Salisbury, Massachusetts. According to the complaint, the accident occurred when the defendant's car swerved into the opposite lane where it struck another car. As a result of the collision, the plaintiff paid its insured $46,675.73 for property damage, personal injury, and other damages.

II. The complaint and judgment of dismissal

On June 9, 2017, the plaintiff filed a complaint seeking recovery of the payment. The complaint was administratively dismissed on October 3, 2017 for failure to

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effect service pursuant to Mass. R. Crim. P. 4(j).

III. The order vacating the judgment of dismissal

On August 16, 2019, the plaintiff filed a motion to vacate the judgment of dismissal and the Court held a hearing on the motion on September 18, 2019. In the motion, the plaintiff stated that they had been unable to serve the defendant with the complaint at the address listed on the complaint prior to dismissal but that they had "recently discovered" an out of state address for the defendant using an internet database. The plaintiff also filed an amended complaint with the defendant's out of state address, which was in San Diego, California.

At the motion hearing, the defendant argued that the only procedural vehicle to vacate the dismissal was Mass. R. Civ. P. 60(b)(1), which had a strict one-year time limit on motions to vacate and so the motion to vacate was time-barred. He also pointed out that the plaintiff never moved to extend the time for service of the complaint. The plaintiff countered that the one-year time limit of Rule 60(b)(1) was inapplicable because the Rule 4(j) dismissal was not a "final judgment" within the meaning of Rule 60(b)(1).

The Court allowed the motion, based on a) the fact that the defendant "diligently utilized multiple databases attempting to locate the defendant;" b) the fact that the defendant had moved from California to New Hampshire; c) the fact that since May 2017 the defendant had been living in a residence that his girlfriend had signed the lease for; and d) the lack of prejudice to the defendant. [Note 4]

DISCUSSION

The defendant argues that the judge abused his discretion in vacating the judgment of dismissal because vacatur of dismissal here was pursuant to Mass. R. Civ. P. 60(b), which can only occur up to one year after the final judgment and here nearly two years had passed since the judgment of dismissal. The defendant counters that because the judgment of dismissal entered administratively pursuant to Mass. R. Civ. P. 4(j), [Note 5] the judgment was not a "final judgment" within the meaning of Rule 60(b), i.e. a judgment on the merits, and as such the one year time limit does not apply. This Court concludes that the trial judge abused his discretion in allowing the motion to vacate a dismissal where the motion to vacate was filed nearly two years after dismissal and the plaintiff did not show sufficient good cause for the vacatur.

The plaintiff understandably filed the complaint right before the statute of limitations on the action expired. However, the plaintiff should not have sat idly by

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while they searched for the defendant. The proper practice would have been to file motions for extensions of time to serve the defendant, detailing their efforts to find him to provide periodic updates to the court. Indeed, the Reporter's Notes to Rule 4(j) provide such guidance: "[i]fa party does not think it will be able to obtain service within the 90-day period, a timely motion can be made for "cause shown" for an enlargement of time pursuant to Mass. R. Civ. P. 6(b)(1)."

The Court finds Kennedy v. Beth Israel Deaconess Medical Center, Inc., 73 Mass. App. Ct. 459 (2009), a case that also involved the interplay between Rule 60(b)(1) and Rule 4(j), instructive. There, after filing the complaint and not being able to effect proper service, the plaintiff filed six motions to enlarge the time to serve the defendant. Eventually a Rule 4(j) judgment of dismissal entered. However, a judge allowed the plaintiff's motion to vacate the dismissal and the defendant appealed. Id. at 463. The Appeals Court reversed, analyzing the motion to vacate under Rule 60(b)(1), determining that the "good cause" standard of Rule 60(b)(1) was not met. Id. at 465. In so ruling, the Appeals Court also pointed to the strict one-year time limit for motions filed pursuant to Rule 60(b)(1): "[t]his one-year time limit cannot be extended." Id. at 464, quoting Chavoor v. Lewis, 383 Mass. 801, 803 (1981); see also McIssac v. Cedergren, 54 Mass. App. Ct. 607, 609 (2002). The plaintiff here attempts to distinguish Kennedy by arguing that the extensive procedural history in Kennedy led to the Appeals Court to treat the Rule 4(j) dismissal as a final judgment for purpose of Rule 60(b). This Court is not so persuaded.

The plaintiff also contends that the allowance of the motion to vacate here was pursuant to Rule 4(j), rather than Rule 60(b)(1), because the Rule 4(j) dismissal was not a "final judgment". [Note 6] However, the plaintiff fares no better under Rule 4(j), which also requires the plaintiff to demonstrate "good cause" in order to vacate a dismissal. This has been defined as "a stringent standard requiring diligen[t] albeit unsuccessful effort to complete service within the period prescribed by the rule." Shuman v. Stanley Works, 30 Mass. App. Ct. 951, 953 (1991) (quotations omitted). The focus of such an inquiry is on "the reasonableness and diligence of the plaintiff's efforts." Id. The plaintiff's showing here did not meet this standard.

Even though, as the trial judge found based on the plaintiff's memorandum, the defendant had moved out of the area, changed addresses, and, for a period of the time, lived in an apartment listed to only his girlfriend, nothing in the plaintiff's showing suggests that the defendant was doing this intentionally to avoid service. Additionally, the plaintiff's memorandum and affidavit were vague about their efforts to locate the defendant and, considering almost two years had passed, were lacking in sufficient details required to meet the stringent standard of "good cause" under Rule 4(j). Thus, even viewing the allowance of the motion as pursuant

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to Rule 4(j), it was an abuse of discretion.

CONCLUSION

For the reasons stated above, the order allowing the plaintiff's motion to vacate judgment of dismissal is reversed and the judgment of dismissal is reinstated. [Note 7]