Supreme Court No. 2017 -132 -A. (KC 10 -33 )

Antonio P. Duffy :

v. : Town of West Warwick , by and through its Finance Director, Malcolm Moore, et al. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222 -3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. December 4, 2018- 1

- Supreme Court No. 2017

- 132

- A

. ( KC 10

- 33 )

Antonio P. Duffy :

v. : Town of West Warwick , by and through its Finance Director, Malcolm Moore, et al. :

Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
O P I N I O N Justice Indeglia, for the Court. The plaintiff, Antonio P. Duffy, appeal s from a final judgment of the Superior Court granting the defendant s’ motion to dismiss pursuant to Rule 41(b)(2) of the S uperior Court Rules of Civil Procedure

. This matter came before th is Court on
November 8 , 2018, pursuant to an order directing the parties to appear and show cause why the issues raised should not be summarily decided. After considering the arguments set forth in the parties’ memoranda and at oral argument, we are convinced that cause has no t been shown. Thus, further argument or briefing is not required to decide this matter. For the reasons outlined below, we affirm the judgment of the Superior Court

. I
Facts and Travel The pertinent facts of this case are as follows. Sometime between December 2007 and
June 2008, 1 plaintiff was arrested , and al legedly assaulted , by uniformed officers of the West

1 At the hearing on defendants ’ motion to dismiss , defendant s indicated that the incident occurred on May 28, 2008, while plaintiff ’s counsel stated that “it happened in around [ sic ] 2007, December, 2008.” We note that the complaint alleges that the incident occurred on May 18, 2008.- 2

-

Warwick Police Department

. Subsequently, on January 8, 2010, plaintiff, through his then

attorney , filed the instant action in Kent County Sup erior Court against Michael J. Nye and Stephen J. Blais

— t wo officers of the West Warwick Police Department

— a nd the Town of West
Warwick

. Service, however, was not completed at that time. More than five years elapsed
before plaintiff retained a new attorney in January 2015 ; and , on February 24, 2015 , plaintiff had copies of the complaint and summons es served upon defendants

. In response, on March 5, 201 5 , defendants , in lieu of filing an answer , and in accordance with Rule 41(b), filed a motion to d ismiss based on lack of prosecution and failure to serve process upon defendant s within the time required in Rule 4(l) of the Superior Court Rules of
Civil Procedure

. In their memorandum in support of that motion, defendants argued that :

“ P laintiff effect uated personal service of the [d]efendants more than five (5) years after the complaint was filed in the Superior Court and close to seven (7) years after the alleged incident. As such, pursuant to Rule 4( [l] ), this matter should be dismissed for failure t o obtain service.” The defendants went on to state: “In addition, under Rule 4l(b)(l), the [p]laintiff has failed to prosecute this action for over five (5) years. ” A hearing on the motion was held on April 27, 2015 , at which defendants reiterated the arguments that they had advanced in their memorandum

. In response, plaintiff highlighted his previous attorney’s failure to serve process within the pre ceding five years. He further noted th at the complaint had been served immediately afte r plaintiff retain ed new counsel. The plaintiff admitted, however, that both the hiring of new counsel and service of the complaint were accomplished after the five

- year period set forth in Rule 41 (b) (1) had elapsed

. 2 Despite the lapse

2 “The court may, in its discretion, dismiss any action for lack of prosecution where the action has been pending for more than five (5) years, or, at any time, for failure of the plaintiff to- 3

-

of time, plaintiff argued that the “ savings section in the statute” allowed the motion justice to
reinstate the case , “upon a showing of preventing injustice.” 3 Finally, plaintiff a verred that this
case fit the factual scenario required for the action to proceed , because he had served process and was ready to engage in discovery

. The motion justice inquired into the reason for the delay in
service , to which plaintiff ’s new attorney replied : “ [I] t’s through no fault of Mr. Duffy himself, but his previous counsel who

— . ” Th e motion justice cut short this argument, stating: “Mr. Duffy acts through his attorney. If Mr. Duffy has a problem, he gets into a problem because of the neglect of his attorney * * *.” In the end, the motion justice dismissed the action , with prejudice , under Rule 41(b). He based his ruling on the length of time that the case had lain dormant , noting that “both parties at some point in time after an incident occurred and after suit is filed have a right to think that, you know, thi ngs should have been settled.” T he court cited to our o pinion in the case of Norcliffe v.
Resnick , 694 A.2d 1210 (R.I. 1997) , holding th at prejudice to the defendant was not a necessary
consideration in this case

. On May 4, 201 5 , an o rder entered granting defendants’ motion to
dismiss with prejudice ; and , o n May 12, 2015, plaintiff timely appealed to this Court. However,

we reman ded the case for entry of final judgment; and , on September 8, 2016, final judgment
entered. 4 Plaintiff then submitted an amended notice of appeal on March 9, 2017.

comply with these rules or to proceed when the action is reached for trial.” Super.R.Civ.P. 41(b)(1). 3 The statute that plaintiff likely referred to is G.L. 1956 § 9

- 8

- 6, which provides : “Any case dismissed under §§ 9

- 8

- 3

— 9

- 8

- 5, may be reinstated by the court with or without terms upon motion within one year from dismissal, if the court deems it proper to prevent injustice .” (Emphasis added.) Section 9

- 8

- 3 is the statutory authority for Rule 41(b) of the Superior Court Rules of Civil Procedure. Compare § 9

- 8

- 3 with Super.R.Civ.P. 41(b). Thus, § 9

- 8

- 6 would provide authority for a motion justice to reinstate a case that is involuntarily dismissed under Rule 41(b). 4 It appears that the delay in the appellate process was due in part to that remand.- 4

- II
Standard of Review

“ It is well settled that abuse of discretion is ‘the applicable standard to be used by [ th is
Court ] when reviewing a [motion] justice’s dismissal of a civil action for lack of prosecution , ’ pursuant to Rule 41(b). ” Cotter v. Dias , 130 A.3d 164, 168 (R.I. 2016) (quoting Coates v. Ocean State Jobbers, Inc. , 18 A.3d 554, 558 (R.I. 2011)). “Thus, ‘th is Court must determine whether [the motion justice’s] findings are supported by the evidence or whether in making such f indings [he or she ] misconceived or overlooked any material evidence.’” Id. (quoting Coates , 18 A.3d at
558 )

. III
Discussion In this appeal, plaintiff argues that the motion justice abused his discretion in granting
defendant s’ motion to dismiss under Rule 41(b)(2) because the court failed to consider whether
the defendants had suffered any prejudice from plaintiff’s five

- year delay in serving the complaint

. We disagree. Rule 41(b)(2) states: “ On motion of the defendant the co urt may, in its discretion, dismiss any action for failure of the plaintiff to comply with these rules or any order of court, or for lack of prosecution as provided in paragraph (1) of [Rule 41( b)]

. ” ( E mphasis added

. ) Involuntary dismissal for any reason under Rule 41(b) , “other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party , operates as an adjudication up on the
merits [ , ]” and, thus, is a dismissal with prejudice. Super.R.Civ.P. 41(b)(3). Accordingly , Rule 41(b) (2) clearly grants discretion to a motion justice to dismiss a case with prejudice in one of

two manners , which have differing requirements under our caselaw

.- 5

-

First, “[i]n considering a dismissal motion [under Rule 41(b)(2) for lack of prosecu tion ], a trial justice must weigh the equities between the parties.” Cotter , 130 A.3d at 168 (quoting
Coates , 18 A.3d at 560). “On the one hand is the court’s need to manage its docket, the public interest in the expeditious resolution of litigation, and the risk of prejudice to the defendants from delay, and [o]n the other hand, there is the desire to dispose of cases on their merits.” Id. (quoting
Coates , 18 A.3d at 560)

. “When weighing the equities, the c ourt ‘need not view the evidence in

a light most favorable to the plaintiff s
. ’” Id. (quoting Bergeron v. Roszkowski , 866 A.2d 1230, 1237 (R.I. 2005)). “Also, it is well settled in our jurisprudence that ‘[m]ere delay is not enough to warrant dismissal for lack of prosecution.’” Id. (quoting Harvey v. Town of Tiverton , 764 A.2d 141, 143 (R.I. 2001) ).
Second , w e have held that “[p] ursuant to Rule 41(b)(2) * * * a trial justice may grant a
defendant ’s motion to dismiss for a plaintiff ’ s failure to comply with the rules of civil procedure. ” Norcliffe , 69 4 A.2d at 1212. More specifically, “ [a] n unreasonable delay in procuring service of process constitutes noncompliance with Rule 4 * * * for which dismissal may be granted pursuant to Rule 41(b)(2). ” 5 Id. From our review of the record, this was the
basis for the motion justice’s dismissal in the present case

.

5 Rule 4(l) provides, in pertinent part:

“If service of the summons, complaint, Language Assistance Notice, and all other required documents is not made upon a defendant within one hundred and twenty (120) days after the commenceme nt of the action the court upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.”- 6

-

In Norcliffe , the case cited by the motion justice, the defendant filed a motion to dismiss under Rule 41(b) (2) for failure to serve process within a reasonable time , after the plaintiff had
waited f ourteen months to serve the complaint and summons. Norcliffe , 694 A.2d at 1211. Without determining that the defendant had been prejudiced by the delay, the trial justice in that

case held that the delay in service was unreasonable and dismissed the compl aint under Rule 41(b) (2)

. See id. at 1211

- 12. On appeal, in response to the plaintiff’s request that we “ require a showing of prejudice to the defendant as a precondition to dismissal under Rule 41(b)(2) [,]” we held that “[a] showing of prejudice * * * is not required to sustain a trial justice ’ s dismissal of the complaint for a plaintiff ’ s failure to comply with the requirements of Rule 4. ” Id. at 1212 ( e mphasis added)

. W e also noted that the “ plaintiffs’ fourteen

- month delay in effe ctuating
service on d efendant [was] presumptively unreasonable. ” Id. This Court then went on to hold:

“ H aving found that the fourteen

- month delay in effecting service of process was unreasonable and inexcusable, the trial justice did not abuse his discretion in dismissing the complaint. ” Id. Here, plaintiff posits that the motion justice abused his discretion because the court did
not consider the possible prejudice to defendants from the delay in service

. The p laintiff offers no explanation for the delay, but instead proffers that he should not suffer for his previous attorney’s lack of diligence. In ruling on defendants’ motion to dismiss, the motion justice held :

“And I think the point that has to be made her e is that where there ’ s a delay of this magnitude, seven years from the time of the incident, five years from the time of the filing of the complaint and absolutely nothing has happened, that a message has got to be sent that the rules

— we might as well jus t throw the rules away if we allow this lawsuit to be re

- filed. I think this is a classic case of where R ule 41(b) should require a dismissal with prejudice.” Although t he motion justice acknowledge d that he “ha[d]n’t heard anything from the [d]efendant [s ] to show that they ha [d] been prejudiced by the delay ,” he specifically cited our- 7

-

holding in Norcliffe , that a showing of prejudice was not necessary to rule on a Rule 41(b) (2)
motion for failure to comply with Rule 4

. See Norcliffe , 694 A.2d at 1212.
Given the five

- year delay in serving the complaint , which is significantly longer than the
fourteen

- month delay that we held was “presumptively unreasonable” in Norcliffe , and the lack of any explanation for such delay , we cannot say that the motion justic e abused his discretion in dismissing the plaintiff’s complaint under Rule 41(b) (2)

. Norcliffe , 694 A.2d at 1212 ; see Ricci v.
Ricci , 689 A.2d 1051 , 1053 (R.I. 1997) (ho lding that a seven

- and

- one
- half

- month delay in
service was sufficient for the trial justice to dismiss a complaint under Rule 41(b)(2) , where plaintiff failed to proffer a good cause for the delay)

. We note that “ ‘[t]he widest discretion must be given to calen dar justices and trial justices’ in managing a trial calendar, a task that is ‘among
the most difficul t of all judicial assignments.’ ” Coates , 18 A.3d at 558 (quoting Bergeron , 866
A.2d at 1235 )

. Moreover, o ne of the main purpose s of Rule 41(b) is to ensure the efficien t and expeditious resolution of controversies; t his purpose would be undermined were we to allow plaintiff to proceed with his complaint , even if his previous attorney was responsible for the
de l a y
. See Harvey , 764 A.2d at 143

. Therefore, we affirm the final judgment granting
defendants’ motion to dis miss pursuant to Rule 41(b)(2)

. IV
Conclusion For the reasons stated herein, we affirm the judgment of the Superior Court

. We remand the papers to that tribunal

.
Justice Flaherty did not participate.STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT

– CLERK’S OFFICE
OPINION COVER SHEET

Title of Case Antonio P. Duffy v. Town of West Warwick, by and through its Finance Director, Malcolm Moore, e t al. Case Number No. 201 7

- 132

- A. ( KC 10

- 33 ) Date Opinion Filed December 4 , 2018
Justices Suttell, C.J., Goldberg, Robinson , and Indeglia JJ. Written By Associate Justice Gilbert V. Indeglia Source of Appeal Kent County Superior Court
Judicia l Officer From Lower Court Associate Justice Bennett R. Gallo

Attorney(s) on Appeal For Plaintiff : Bradley M. Orleck, Esq. For Defendant s : Kathleen A. Hilton , Esq.

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- CMS

- 02A (revised June 2016)