* Of the District of Massachusetts, sitting by designation

.



# United States Court of Appeals

For the First Circuit

____________________

No. 01-2189

JAMES A. CHUTE,

Plaintiff, Appellant,

v.

GEORGE WALKER,

Defendant, Appellee,

CITY OF CAMBRIDGE AND CAMBRIDGE RENT CONTROL BOARD, ROBERT W. HEALY,

CITY MANAGER, RONNIE WATSON, AS POLICE COMMISSIONER, CITY OF

CAMBRIDGE, UNKNOWN POLICE OFFICERS OF THE CITY OF CAMBRIDGE,

INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, GEORGE WAL KER, POLICE

OFFICER, CITY OF CAMBRIDGE, IN HIS OFFICIAL CAPACITY,

Defendants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge ]

____________________

Before

Boudin, Chief Judge

, Lynch, Circuit Judge

, and Gertner, * District Judge

.

____________________

Valeriano Diviacchi for appellant.

Thom as J. Urbelis with whom Urbelis, Fieldsteel & Bailin, LLP was

on brief for appellee.____________________

February 27, 2002

____________________-2- LYNCH, Circuit Judge . James A. Chute, a man of Irish

descent, filed a ni ne-count complaint against the City of

Cambridge, the city's police commissioner, and several of the

city's police officers in both their individual and official

capacities, a lleging that defendant, officer George Walker,

directed ethnic slurs toward him, hit him on the head,

handcuffed him too tightly, and then falsely arrested,

imprisoned, and charged him with various crimes.

Walker, appearing through counsel, filed a motion to

dismiss one of Chute's nine counts an d an answer to Chute's

complaint. On the next day, the city, and all of the other

defendants, including Walker, in their official capacities only,

file d a motion to dismiss counts two through four. Chute

responded to none of these motions. Although no party moved to

dismiss eight of the claims against Walker individually, the

district court nonetheless dismissed Chute's complaint in its

entirety for failure to state a claim, Fed. R. Civ. P. 12(b)(6),

and denied Chute's motion for relief from judgment, Fed. R. Civ.

P. 60(b).

Chute appeals the dismissal of seven of the nine

counts, only as they apply to Walker in his individual capacity.1 On October 19, 2001, this court granted the official capacity

defendants' unopposed motion to dismiss the appeal naming them, and

dismissed the appeal except for Chute's appeal of the dismissal of the

action against defendant Walker in his individual capacity.

-3- He concedes the dismissal of two of the co unts in their

entirety. He also concedes the dismissal of all of the counts

against Walker in his official capacity as well as the dismissal

of all of the counts against all of the other defendants. 1 As

to the remaining counts against Walker individually, Chute says

the district court erred by, sua sponte, dismissing those counts

without providing him notice or an opportunity to be heard. In

addition, Chute says the district court's conclusion that all of

his claims against Walker must be dismis sed, because he never

served Walker with process, is incorrect because Walker waived

this objection. We agree that the district court erred and so

we reverse the district court's dismis sal of counts one, two,

and five through nine of Chute's complaint, agains t Walker

individually, and reinstate the case for further proceedings.

I.

On August 2, 2000, Chute filed a nine-count complaint

in the district court seeking money damages against the City of

Cambridge, the city's police commissioner, and several police-4-

officers, including officer Wa lker, in their individual and

officia l capacities. The complaint stated that on August 7,

1997, officer Walker called Chute a "mick bastard" and said to

him "I'm an American, why don't you scum go back to where you

came from." According to Chute, Walker then hit him on the head

several times and, with the help of other unknown officers,

falsely arrested him and used excessive fo rce in doing so.

Chute's complaint also asserted that Walker and the other

unknown officers falsely charged him with "several criminal and

motor vehicle violations" and falsely imprisoned him. According

to the signed Return of Service, on August 3, 2000, a constable

served the summons and complaint by handing copies to Lieutenant

Walsh, who signed as an authorized agent for officer Walker.

In counts one, four, and five, Chute claimed that these

acts violated, in different ways, his Fourth, Eighth, and

Fourteenth Amendment rights under color of state law in

violation of 42 U.S.C. § 1983. In counts two and six, he also

claimed that these acts constituted interference, by threat,

intimidation, and coercion, with the exercise of his

Massachusetts constitutional and statutory rights, in violation

of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12,-5-

§§ 11H and 11I (2000). In count three, he alleged a violation

of the Massachu setts Tort Claims Act, i d. ch. 258, and, in

counts seven through nine, state tort law p rohibiting assault

and battery, false arrest, and false imprisonment. Counts five

through eight were explicitly against Walker in his individual

capacity and counts one, two, and nine might also fairly be read

to assert claims against Walker individually.

Approximately one month later, on September 5, Walker

filed a Rule 12(b)(6) motion to dismiss count three

-- Chute's

state Tort Claims Act count -- and an answer to the complaint.

In neither filing did Walker object to the manner in which he

had been served or otherwise purport to limit the appearance by

his counsel. On the next day, September 6, the city, and all of

the other defendants, including Walker, in th eir official

capacities only, filed a motion to di smiss counts two through

four and an answer to the complaint. Chute did not respond to

any of these filings.

On February 15, 2001, the district court dismissed

Chute's complaint, in its entirety and with prejudice. The

court based its dismissal on the official capacity defendants'

September 6 motion to dismiss counts two through four, which the2 About two weeks later, Chute amended his 60(b) motion,

conceding that Walker had filed a motion to dismiss count three

(Chute's Tort Claims Act count) only, but continuing to insist

that no defendant had sought dismissal of all counts against the

individual capacity defendants. The amendment to the motion

consistently, but erroneously, refers to defendant Watson (the

Cambridge police commissioner, sued in his official capacity)

instead of Walker.

-6- district court incorrectly characterized as a motion to dismiss

"all" counts other than count one (the § 1983 claim). The

district court dismissed count one once it dismissed all of the

other counts because it characterized count one as derivative of

those other counts.

Almost two weeks later, on February 28, Chute filed a

motion for relief from final judgment, under Fed. R. Civ. P.

60(b), arguing ( 1) that Walker had never, in his individual

capacity, moved to dismiss, 2 and (2) that the official capacity

defendants' motion to dismiss only sought dismissal of counts

two thro ugh four. Chute's counsel admitted having failed to

respond to the official capacity defendants' motion to dismiss,

but argued that the motion did not seek dismissal of any counts

against the individual capacity defendants and that it did not

even seek dismi ssal of all counts against the city and the

official capacity defendants.-7- Without addressing Chute's claim that no party had ever

filed a mot ion to dismiss all counts against the individual

capacity defendants, all defendants responded to Chute's 60(b)

motion by arguing that Chute's counsel had not provided a

legally sufficient excuse for failing to respond to the earlierf iled motions to dismiss counts two through four and count

three.

Around this time, Chute's counsel withdrew and new

counsel appeared for him. Chute's new counsel, who represents

him on appeal, waived the portion of Chute's 60(b) motion that

sought vacation of the dismissal of the claims against the city

and all official capacity defendants; he only sought vacation of

the judgment dismissing counts one, two, and five through nine,

against the individual capacity defendants. Counsel explained

that neither Walker, nor any of the "unknown officers," in their

individual capacities, had ever filed a motion to dismiss these

counts and that there was no basis for a sua sponte dismissal.

On June 12, 2001, the district court entered an order

deferring its ruling on Chute's 60(b) motion and inviting him to

show good cause for relief from judgment. The district court

reasoned that it properly dismisse d Chute's complaint, in its-8-

entirety, because the co mplaint did not assert any individual

capacity cl a ims. This was not so. The district court also

offered a new justification for dismissal: it said that Chute

had never served Walker with process in his individual capacity

and that Walker had only participated in the litigation in his

official capacity.

Chute's new counsel accepted the district court's

invitati on to show cause and filed a memorandum stating that

Chute's complaint did, in fact, assert counts against Walker

individually. In response to the district court's insufficient

service rationale, the memorandum noted that, contrary to the

district court's June 12 conclusion, separate counsel had

represented Walker in his individual capacity. Chute also

explained that Walker, in his individual capacity, had not moved

to dismiss the entire complaint and that Walker had waived any

objection to service of process by not objecting in his answer.

Again, this time in response to Chute's memorandum to

show cause, Walker advanced the inapposite argument that Chute's

counsel had fa iled to provide a legally sufficient excuse for

failing to respond to the earlier-filed motion to dismiss counts

two through four. Walker argued, without ever addressing3 Because Chute has brought a timely appeal of the

district court's fin al judgment, we need not discuss or apply

the standard of review for rulings on 60(b) motions.

-9- Chute's claim that no motion to d ismiss all counts against

Walker individually had ever been filed, and without rebutting

Chute's claim that Walker had waived any service of process

objection, that Chute's failure to respond to the earlier-filed

motions to dismiss did not constitute excusable neglect.

Finally, on July 30, 2001, the district court denied

Chute's 60(b) motion. The district court deleted its previous

conclusi on that Walker had only been represented by a single

attorney, but noted that Walker's attorney had never claimed

that he had been au thorized to represent Walker individually.

The district court, in defending its dismissal of the individual

capacity claims against Walker, relied on its view that Walker

had never been served in his individual capacity.

II.

We review de novo a district court's dismissal of a

complaint for failure to stat e a claim under Fed. R. Civ. P.

12(b)(6). 3 Clorox Co. P.R. v. Proctor & Gamble Commercial Co.

,

228 F.3d 24, 30 (1st Cir. 2000).4 The district court appears to backtrack from its

February 15 memorandum and order dismissing the entirety of

Chute's action when it concluded its July 30 denial of Chute's

60(b) motion by stating:

When the adjudication, now confirmed, was made, no claim of

liability of a police officer individually was before the

court and no individual had been serv ed or filed an

appearance. In these circumstances, no adjudication on the

merits has been made in this case as to any claim against

a police officer individually.

This recharacterization does not change t he fact that Chute's

complaint explicitly asserted se veral counts against Walker

individually and that, on F ebruary 15, the district court

dismissed the complaint.

-10-

H ere, the district court dismissed Chute's complain t

sua sponte. The complaint set out nine counts against several

different defendants. Among these counts were several counts

against Walker in his individual capacity. Neither Walker nor

anybody el se ever moved to dismiss all nine counts.

Nevertheless, the district court dismissed Chute's complaint, in

its entirety and with prejudice, 4 based on the official capacity

defendants' September 6 motion to dismiss counts two through

four.

Contrary to the district court's conclusion, Chute did

sue Walker in his individual capacity. Chute's complaint

stated, at least thirteen separate times, including twice in the-11-

complaint's caption, that Chute w as suing Walker and other

unknown officers "individua lly" or in their "individual

capacities." Nevertheless, the district court incorrectly

concluded that its "interpretation of the original complaint as

one mak ing only official-capacity claims was reasonable" and

noted that "[t]he City of Cambridge, under that interpretation,

was the only defendan t." Chute sued Walker individually, and

the City of Cambridge was not the only defendant.

Furthermore, no party moved to dismiss the entire

complaint. Walker filed a motion to dismiss count three and the

city, and all of t he other defendants, including Walker, in

their official capacities only, filed a motion to dismiss counts

two through four. Based on the official capacity defendants'

motion to dismiss counts two through four, which the district

court characterized as a motion to dismiss "all" counts (other

than the § 1983 count), the district court dismissed the entire

complaint.

Chute g rants that he never responded to these two

motions to dismiss and concedes the dismissa l of all counts

against the city and the official capacity defendants, and count

three against Walker. He also relinquishes count four against-12-

Walker. He only seeks reinstatement of counts one, two, and

five through nine against Walker individually because, he says,

these counts were improperly dismissed. Chute claims that these

counts were dismissed sua sponte and without any notice or

opportunity for him to be heard; no defendant moved to dismiss

the entire complaint and so he was caught by surprise when the

district court dismissed. We agree.

"Sua sponte dismissals are strong medicine, and should

be dispensed sparingly." G onzalez-Gonzalez v. United States

,

257 F.3d 31, 33 (1st Cir. 2001). The general rule is that "in

limited circumstances, sua sponte dismissals of complaints under

Rule 12(b)(6)

. . . are appropriate," but that "such dismissals

are erroneous unless the parties have been afforded notice and

an opportunity to amend the complaint or otherwise respond."

Futura Dev. of P.R., Inc. v. Estado Libre Asociado de P.R.

, 144

F.3d 7, 13-14 (1st Cir. 1998); see also Carparts Distrib. Ctr.,

Inc. v. Auto. Wholesaler's Assoc. of New England, Inc. , 37 F.3d

12, 15 (1st Cir. 1994).

"This does not mean

. . . that every sua sponte

dismissal entered without prior not ice to the plaintiff

automatically must be reversed. If it is crystal clear that the-13-

plaintiff cannot prevail and that amending the complaint would

be futile, then a sua sponte dismissal may stand." G onzalezGo nzalez , 257 F.3d at 37; s ee also Clorox

, 228 F.3d at 30

(noting "limited exceptions to the general rule barring

dismissal without notice"); accord Curley v. Perry

, 246 F.3d

1278 (10th Cir. 2001). The party defending the dismissal must

show that "the allegations contained in the complaint, taken in

the light most favorable to the plaintiff, are p atently

meritless and beyond all hope of redemption." G onzalezGonzalez , 257 F.3d at 37.

Without expressing any further opini o n of the merits

of Chute's complaint, we conclude that counts one, two, and five

through nine, against Walker individually, are not "patently

meritless and beyond all hope of redemption." Id. Therefore,

it was error to dismiss these counts sua sponte and without

notice.

This does not end the matter because the district court

stated, as its reason for denying Chute's 60(b) motion, that it

lacked personal jurisdiction because Chute h ad never served

W alker individually with process. Without endorsing that5 Chute did serve Walker and no restriction was placed

on the acceptance of service.

-14- reasoning or reaching the issue, 5 th e dismissal was still

improper because Walker waived any insufficiency of service of

process objection when he filed an answer to the complaint and

a motion to dismiss without raising such an objection.

Fed. R. Civ. P. 12(h)(1) states: "A defense of

. . .

insufficiency of service of process is waived . . . if omitted

from a motion in the circumstances described in [Rule 12](g)."

Rule 12(g) states: "If a party makes a motion under this rule

but omits therefrom any defense or objection then available to

the party which thi s rule permits to be raised by motion, the

party shall not thereafter make a motion based on the defense or

objection so omitted." Walker moved to dismiss under Rule

12(b)(6) and omitted a Rule 12(b)(5) insufficiency of service of

process defense, so h is insufficiency of service of process

defense is waived. S ee 5A C.A. Wrigh t & A.R. Miller, F ederal

Practice and Procedure § 1353 , at 281 (2d ed. 1990) ("[I]f a

motion is made assertin g any of the defenses listed in Rule

12(b), any objection to process must be joined in that motion or

it will be dee med waived."); i d. § 1391, at 744 ("[I]t now is6 E.g.

, O'Brien v. R.J. O'Brien & Assocs., Inc.

, 998 F.2d

1394, 1399 (7th Cir. 1993) (stating that "once the defendant has

waived objections based on insufficiency of process and

submitted generally to the jurisdiction of the court, the court

is powerless to dismiss the suit for lack of personal

ju risdiction"); P usey v. Dallas Corp.

, 938 F.2d 498, 501 (4th

Cir. 1991) (stating that "unexcused failure to raise the

untimeliness of service defense

. . . must be held to deprive

the court of tha t power"); P ardazi v. Cullman Med. Ctr.

, 896

F.2d 1313, 1317 (11th Cir. 1990) (holding that "when a defendant

has waived his objection to insufficient service of process (or

any other defect in personal jurisdiction) . . . the court may

not,

. . . [on] its own initiative, dismiss the suit for lack of

personal jurisdiction or insufficient service of process").

-15- clear that any time defendant makes a pre-answer Rule 12 motion,

he must include, on penalty of waiver, the defenses set forth in

subdivisions (2) through (5) of Rule 12(b).")

.

Walker never raised the insufficiency of process issue;

only the district court did. We need not address whether this

is ever permissible, but note that other circuits frown on it

and that it was impermissible under these circumstances. 6 T he

district court n oted its view that Walker did not waive his

objection, stating that Walker's motion to dismiss count three

was "filed by the only attorney who has made an appearance for

any of the defendants in this case." The district court later

recognized that this was incorrect and deleted this language

from its earlier memorandum. The district court, however, stuck-16-

to its rationale that attorney Urbelis had never represented

Walker individually. This too was incorrect. The defendants'

opposition to Chute's 60(b) motion was filed by both Schlacter,

for the official capacity defendants, and Urbelis, explicitly

stating that he represented Walker "In His Individual Capacity."

Therefore, Walker waived his service of process objection when

he did not include it in his 12(b) motion to dismiss and the

district court could not have resurrected it for him.

In conclusion, the district court erroneously dismissed

Chute's complaint, sua sponte and without providing Chute notice

or an opportunity to be heard, when it dismissed all counts even

though no defendant e ver moved for such a dismissal. The

district court co mmitted further error when it denied Chute's

60(b) motion, relying on insufficient service of process,

because Walker waived such an objection when he filed a 12(b)(6)

motion that did not include any mention of insufficient service.

III.

The district court's dismissal of counts one, two, and

five through nine of Chute's complaint, against Walker

individually, is reversed and the case is reinstated for further

proceedings not inconsistent with this opinion.