Bessette v. Dept. of Corrections, No. S0303-05 CnC (Norton, J., July 20,

2005)

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STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. S0303-05 CnC

BESSETTE

v.

DEPARTMENT OF CORRECTIONS

ENTRY

This is a motion to dismiss for Plaintiffs’ failur e to properly serve

defendant Dr. Paul Cotton within the time frame of V.R.C.P. Rule 3 in accordance with the process outlined in Rule 4(d). Plaintiffs do not deny that service was improper but claim that this court ’s prior entry allowing for an enlargement of time to perfect service under Rul e 6(b) and equitable estoppel prevent Dr. Cotton from making this claim.This case is the result of a tragic occurrence. D ecedent Lawrence

Bessette, Jr. suffered from mental illness and was a patient in the care of the Vermont State Hospital in Waterbury. On May 22, 20 03, Mr. Bessette committed suicide. His family now seeks, under a c laim of wrongful death, compensation from the State of Vermont and the medi cal employees, who they claim failed to treat Mr. Bessette properly an d prevent his suicide. They initiated this case on March 22, 2005 by filin g their complaint with this court. The complaint names fifteen individual s (seven of them in their official as well as individual capacity) and three entities (including the state of Vermont. Over the next two months, Plaintiffs s erved defendants or

obtained waivers from them.

One of the waivers was sent to Thomas Carlson, who m Plaintiffs identified as an attorney for Dr. Paul Cotton, an i ndividual defendant. Carlson responded to this March 23 letter two days later with a letter stating

that he could not waive service for Dr. Cotton but had forwarded the pleadings to him and was “confident that Paul will [waive service] in due course.” Dr. Cotton did not waive service. On May 4, Plaintiffs sent a letter to Attorney Carlson requesting information o n the status of Cotton’s waiver. They received no response. On May 19, Pla intiffs moved under V.R.C.P. Rule 6(b) to enlarge time to complete serv ice on the defendants, such as Cotton, who had not waived or been served. The court granted this motion on May 20. Dr. Cotton was served under V.R. C.P. Rule 4(d) on May 25.

Dr. Cotton now moves pursuant to V.R.C.P. Rule 12( b)(5) to dismiss Plaintiffs’ complaint against him for failu re to serve him within the two year period allowed for wrongful death claims. 14 V.S.A. § 1492. By statute, Plaintiffs had two years from Mr. Bessette ’s death in which to file their present claims. Id . This means that the statute expired on May 22,2005, ?? three days before Dr. Cotton was served and one da y after the sixtyday period for service under V.R.C.P. Rule 3. Thus , Dr. Cotton was not served within the time allowed by the statute of li mitations in § 1492 and may be dismissed as a party.

Rule 6(b) Extension

Plaintiffs’ first argument against dismissal is th at they properly moved and were granted a Rule 6(b) extension and th at Dr. Cotton’s May 25 service came well within that period. If this w as merely a question of timely service, Plaintiffs’ argument would prevail, but the issue that Dr. Cotton raises is whether Rule 6(b) can also extend a statute of limitations’ period. The difference is subtle but important. I n the days leading up to May 22, there were two time limits approaching. Th e first was the 60-day period under Rule 3 in which Plaintiffs had to serv e Dr. Cotton for service to be timely. The second was § 1492's two-year lim it, which by coincidence was expiring one day after the deadline for Rule 3. When Plaintiffs filed for an extension through Rule 6(b) , they were asking to extend the former time limit, but there is nothing in Rule 6(b), which

1 Plaintiffs argue that this date should be later be cause they did not “discover” the negligence behind Mr. Bessette’s dea th for several months. Cf. Lillicrap v. Martin , 156 Vt. 165, 176 (1989) (holding that the statute of limitation for a medical malpractice claim under 12 V.S.A. § 5 21 only runs when a plaintiff should have discovered the injury, its cause, and t he existence of a cause of action). This discovery rule, however, does not ap ply to wrongful death actions. Unlike medical malpractice or other causes of actio n, the time for 14 V.S.A. §

1492 is based on the occurrence of death and does n ot toll or accrue upon later

discoveries. Leo v. Hillman , 164 Vt. 94, 97–100 (1995). Notwithstanding any subsequent evidence of negligence, this cause of ac tion began to accrue on March 22, 2003 when Mr. Bessette died.suggests that it may also extend the separate statu te of limitations deadline.

While Rule 3 does permit tolling of the statute of limitation, it does so so long as timely service is accomplished. Weis burgh v. McClure Newspapers, Inc. , 136 Vt. 594, 595 (1979). In contrast, Federal Ru le 6(b), on which V.R.C.P. Rule 6(b) is taken, does not perm it courts to enlarge statutes of limitation. E.g., United States ex. re l. Tenn. Valley Auth. v. Easement & Right-of-Way Over Certain Land in Cumber land County,

Tennessee , 386 F.2d 769, 771–72 (6 th Cir. 1967) (distinguishing between a jurisdictional condition created by statute and a p rocedural limitation to which Rule 6 addresses); Hammons v. Int’l Playtex, Inc. , 676 F. Supp. 1114, 1118 (D.Wyo. 1988), vacated and remanded by p arty stipulation, 872 F.2d 963 (10th Cir. 1989) (reasoning that the 60 da ys under Rule 3 was an “integral part of the statute of limitations” and a ny enlargement would frustrate its policies); 4B C.Wright & A.Miller, Fe deral Practice and Procedure § 1165, at 519–20 (2002); cf. Poulos v. W ilson , 116 F.R.D. 326 (D.Vt. 1987) (granting a Rule 6(b)(2) motion when d efendant was served 1 day after the time for Rule 3 service lapsed but 8 days before statute of limitations ran). In the Federal system, extension s for service of process are explicitly given under F.R.C.P. 4(m). As the V ermont Supreme Court has noted, this provision was not included in the V ermont version and is not

available for Plaintiffs to use. Fercenia v. Guidu li , 2003 VT 50, ¶ 10, n.1 (mem.). Plaintiffs’ Rule 6(b) motion was not mer ely for Rule 3 purposes but to preserve their claim beyond the statute of l imitations so that they could then effect proper service. Such a use of Ru le 6(b) cannot be granted, regardless of any excusable neglect or equitable co nsiderations. Id . at ¶¶ 10, 12 (“That defendants had notice of plaintiff’s clai m is of no moment. The issue here is . . . whether plaintiff's failure to file defendants’ waiver of service within the time required by the rules const ituted a failure toproperly commence plaintiff’s action and toll the a pplicable statute of

limitations.”).

While this result may appear somewhat draconian, i t is rooted in the

twin functions of Rule 3. See Powers v. Chouinard , 138 Vt. 3, 4 (1979) (dismissing case because service was made one day l ate). Service of process not only notifies the defendant of the comp laint and its terms but also exacts physical jurisdiction over the defendan t. 4A C.Wright & A.Miller, Federal Procedure & Practice § 1094, at 5 11 (2002). By failing

to serve defendant within the time allowed under Ru le 3, plaintiffs not only failed to serve notice; they failed to effect juris diction. To paraphrase the Sixth Circuit Court of Appeals, the time limitation of § 1492 is a part of a statute creating the cause of action and establishi ng jurisdiction. This time limitation operates as a jurisdictional condition a s distinguished from a procedural limitation. For this reason, Rule 6(b), relating to procedural time periods, has no application. United States , 386 F.2d at 771. While the Rule 6(b) extension may have cured the first defect , it simply could not address the second. This was, moreover, Plaintiffs ’ responsibility for which they bore the burden and must bear the respon sibility. Weisburgh

, 136 Vt. at 497; Brady v. Brauer , 148 Vt. 40, 44 (1987) (“[Plaintiffs have] the responsibility for any failure to fulfill the p rovisions of V.R.C.P. 4(d) and (e) . . .”). Therefore, notwithstanding this c ourt’s prior grant of a Rule 6(b) extension, Plaintiffs’ service on Dr. Cotton w as untimely under §

1492.

Equitable Estoppel

A defendant may be estopped from raising the statu te of limitations defense in certain circumstances by either equitabl e tolling or equitable estoppel. Fercinia , 2003 Vt. 50, at ¶ 12. Equitable tolling in this case doesnot apply to Plaintiffs. Beecher v. Stratton Corp. , 170 Vt. 137, 142–43

(1999) (requiring the defendant to mislead or preve nt plaintiff in an extraordinary way from filing or for plaintiff to f ile timely in wrong forum). For equitable estoppel to apply, plaintiffs must de monstrate that:

(1) the party to be estopped must know the facts; ( 2) the party being estopped must intend that its conduct be acte d upon; (3) the party asserting estoppel must be ignorant of th e true facts; and (4) the party asserting the estoppel must rely on the conduct of the party to be estopped to its detrimen t.

Town of Victory v. State , 174 Vt. 539, 540 (2002) (mem.); Fisher v. Poole

, 142 Vt. 162, 168 (1982).

Here, the question appears to revolve around the a ctions of Attorney Carlson in misleading Plaintiffs. It is worth noti ng that while Attorney Carlson was an Attorney for Matrix Health Systems a nd Paul G. Cotton, M.D., PC. Attorney Carlson was not Dr. Cotton’s at torney. The difference is important as Dr. Cotton, the individual named in Plaintiffs’ complaint, and Paul G. Cotton, M.D., Professional Corporation, are two different entities. See 11 V.S.A. § 825 (requiring such corp orations to include P.C. in their name to signify their purpose and corporat e structure). On May 25 when Attorney Carlson received Plaintiffs’ letter, he notified them immediately that he could not waive service on beha lf of Dr. Cotton. He also told them that he had passed the waiver materi al on to Dr. Cotton and

that he was “confident” that Dr. Cotton would waive . Plaintiffs admit that Dr. Cotton was under no duty to waive (although suc h a failure might have cost him in service and attorney’s fees under Rule 4(l)(6)) and may even have had legitimate reasons not to waive (such as a requirement by his insurance company not to waive).Looking, then, at Attorney Carlson’s statement of confidence there is

a lack of intent. At that early stage, Attorney Ca rlson may have honestly

believed that Dr. Cotton would waive service and ma y have seen no reason

that he would not. But his statements do not refle ct any knowledge on his part about what Dr. Cotton would actually do. Furt hermore, it follows a statement by Attorney Carlson disclaiming any abili ty to waive service on

Dr. Cotton’s behalf. The fact that Plaintiffs sent a follow up letter on May 4 shows that they were not completely lulled by Att orney Carlson’s professed assurances. The fact that Attorney Carls on made no more

statements demonstrates a lack of intent to deceive Plaintiffs. He did not continue issuing assurances and made no statements that would lead Plaintiffs to believe that he spoke on Dr. Cotton’s behalf. The fact that Plaintiffs mistook him to be Dr. Cotton’s attorney (and thereby agent) does not change this situation. In fact, it illustrates the real reason why Plaintiffs were lulled by Attorney Carlson’s words. They beli eved that he was Dr. Cotton’s attorney. See Beecher v. Stratton Corp. , 170 Vt. 137, 139 (1999) (“All of the circumstances of the case must be eval uated in determining whether the doctrine applies, but generally it ‘wil l not be invoked in favor

of one whose own omissions or inadvertences contrib uted to the problem.’”) (quoting Fisher , 142 Vt. at 169). This is an understandable mistake, but it was not one fostered or effectuated by either Dr. Cotton or Attorney Carlson. Equity will only intervene where the plaintiffs’ situation permits it.

In the end, it is important to remember that servi ce was Plaintiffs’ burden in this case. They had a duty to make sure Dr. Cotton was served. While Dr. Cotton did not make their job any easier by refusing to waive service, he did not make it any more difficult. Th ere is no evidence that he hid from them or instructed Attorney Carlson to iss ue misleadingstatements. Indeed, once Plaintiffs realized that Dr. Cotton was not going

to waive service, they were able to serve him immed iately. While they made a good faith effort to effectuate such service within a narrow frame of time, it was simply too late.

Defendant Paul Cotton’s Motion to Dismiss claims a gainst him is

therefore Granted.

Dated at Burlington, Vermont________________, 2005

.

__________________________________ Judge