Blair v. City of Worcester, No. 06-1626.

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtStahl
Citation522 F.3d 105
Decision Date08 April 2008
Docket NumberNo. 07-1258.,No. 06-1626.
PartiesBrandon S. BLAIR et al., Plaintiffs, Appellants, v. CITY OF WORCESTER et al., Defendants, Appellees.
522 F.3d 105
Brandon S. BLAIR et al., Plaintiffs, Appellants,
v.
CITY OF WORCESTER et al., Defendants, Appellees.
No. 06-1626.
No. 07-1258.
United States Court of Appeals, First Circuit.
Heard November 8, 2007.
Decided April 8, 2008.

[522 F.3d 106]

Michael L. Altman, with whom Altman Riley Esher LLP, was on brief, for appellants.

Andrew J. Gambaccini, with whom Reardon, Joyce & Akerson, P.C., and Janet J. McGuiggan, City of Worcester, Law Department, were on brief, for appellees.

Before BOUDIN, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

[522 F.3d 107]

STAHL, Senior Circuit Judge.


Plaintiffs-appellants Brandon S. Blair and Richard N. Tousignant ("plaintiffs") appeal the district court's dismissal of two separate actions in favor of defendants City of Worcester, Massachusetts ("City"), former Worcester Chief of Police James Gallagher, and Worcester Police Officers Daniel Dowd, Thomas Dowd, Thomas C. Duffy, Falcone1, Edward McGinn, James Moore, Jose Ortiz, Jonathan Thomas, and Peter Towler (collectively, "defendants").2 The plaintiffs, in separate complaints that were later consolidated, alleged that they were attacked and beaten by Worcester police officers, for which they sought recovery against the defendants under myriad legal theories. In an initial action, the district court granted the defendants' motions to dismiss, without prejudice, for failure to perfect service of process. After the plaintiffs refiled their claims in a second action, the district court granted the defendant officers' motions to dismiss for failure to state a claim, holding that the matter was time-barred. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

The record facts of this case, at least those relevant to the instant appeal, are not in material dispute. On December 22, 2001, the plaintiffs were involved in an altercation with several of the defendant officers. As a result of this incident, criminal charges were brought against the plaintiffs. At the conclusion of a jury trial, both plaintiffs were acquitted. Shortly thereafter, on August 16, 2002, the plaintiffs, represented by W. Theodore Harris, filed separate complaints3 in federal district court, alleging various claims based on their purported mistreatment at the hands of the defendants. On September 5, 2002, Donald Rider, an attorney for the City, notified Chief Gallagher and Officers Daniel Dowd, Thomas Dowd, Duffy, Patricia Falcone,4 McGinn, Moore, Ortiz, Thomas, and Towler that two civil rights lawsuits were pending against them in federal district court; indicated that he would handle the lawsuits; and requested that they inform him if served with process. The record does not reveal how Rider learned of the lawsuits, although the plaintiffs introduced as evidence a copy of a newspaper article, dated August 29, 2002, describing the action, which might have been the source of his knowledge. Subsequently, on November 25, 2002, Deputy Sheriff Ronald E. Richard attempted service upon Officers Daniel Dowd, Thomas Dowd, Duffy, McGinn, Moore, Ortiz, and Towler by leaving copies of the summonses and the original complaints with an individual named Katherine McNamara, a "Principal

522 F.3d 108

Clerk" at the police department. These returns of service were filed with the district court on December 2, 2002. No returns of service were filed for the City, Chief Gallagher, Officer Thomas, or Officer Falcone.

On January 8, 2004, 402 days after the plaintiffs' last action in the case, the district court mailed to Harris a Notice indicating that because the case had been inactive more than one year, it would be dismissed in thirty days pursuant to Local Rule 41.1 unless the plaintiffs took appropriate action. Blair and Tousignant learned of the Notice, which was entered on the docket, and chose to retain different counsel. On February 6, 2004, attorney Stephen CampoBasso filed an appearance on behalf of the plaintiffs and submitted motions requesting that the cases not be dismissed, which were granted. Harris withdrew as counsel of record on March 22, 2004, and he was subsequently suspended from the practice of law for a period of eighteen months for reasons that are not apparent on the face of the record.

On April 30, 2004, CampoBasso filed amended complaints on the plaintiffs' behalf. On June 8, 2004, CampoBasso obtained a summons for Chief Gallagher, which was then served, via a purported agent named Jennifer Tauper, and a return of service was subsequently filed with the court on July 8, 2004. The record discloses that, on August 4, 2004, CampoBasso sent a letter to Attorney Rider, to which copies of a summons and an amended complaint were apparently appended, in the apparent expectation that Rider would assist in "service of the Summons" and then return it to him. No copy of the attachment is in the record. On November 16, 2004, CampoBasso sent follow-up correspondence, apparently due to his concern regarding Rider's silence. On December 14, 2004, CampoBasso directed yet another letter to Rider, requesting his "assistance in getting the Summonses5 filed with the Court." He mentioned that his clients were growing "uneasy" regarding the lack of activity in the case. Unfortunately, the record does not explicate which defendant or defendants CampoBasso sought to serve in this manner. Regardless, CampoBasso's efforts, which might have been an attempt to obtain waiver of personal service under Rule 4(d), were apparently fruitless — and, in any event, the plaintiffs do not rely on this set of correspondence in any of their claims of error.

CampoBasso took no further record action in the case and committed suicide in February 2005. On April 14, 2005, Jo Ann Citron and Michael Altman appeared on behalf of the plaintiffs as the third set of counsel of record. Proceeding expeditiously thereafter, on April 26, 2005, the plaintiffs filed a motion for default judgment against the defendants. In response, the defendants moved to dismiss the plaintiffs' claims, arguing that the plaintiffs had failed to effect personal service of process upon them. The defendants attached an affidavit from McNamara stating that she was not authorized to accept service for the defendant officers. Likewise, Officer Thomas Dowd submitted an affidavit indicating that he had not appointed McNamara as his agent for receiving service of process.

In response, the plaintiffs offered evidence purporting to show that McNamara had actual and apparent authority to accept process on behalf of the defendant officers, requested leave to conduct additional

522 F.3d 109

discovery to prove this agency relationship, and argued that even if no agency relationship existed, the district court should extend the time to serve the defendants. On March 13, 2006, the district court issued an opinion denying the plaintiffs relief and granting the defendants' motions to dismiss, without prejudice. The plaintiffs filed a timely Notice of Appeal on April 6, 2006, but subsequently requested and received a stay during the pendency of the action described below.

On June 26, 2006, the plaintiffs initiated a new action in federal district court, based on the same underlying conduct, seeking similar relief as before, asserting that the Massachusetts renewal statute revived their otherwise time-barred claims. The district court, based on its construction of the renewal statute, rejected the plaintiffs' contentions and dismissed the case. Again, the plaintiffs appealed; the two appeals have since been consolidated.

II. ANALYSIS

A. Effect of the Amended Complaints

The defendants argue that the filing of the April 30, 2004, amended complaints makes irrelevant any service of process, whether effective or not, that was performed in this case in relation to the original complaints. On the defendants' theory, the amended complaint — by being filed, and whether or not properly served — superseded the original complaint, and made it no longer available as a basis for pursuing this case. Under Federal Rule of Civil Procedure 5(a)(2), an amended complaint stating a new claim must be served on defendants, such as those here, who have failed to appear. The defendants argue that because the original complaint was superseded and the amended complaint was never served, dismissal of the suit for insufficient service of process was proper.

There are two flaws with the defendants' theory. First, it is doubtful that the unserved amended complaint in fact superseded the original complaint. See Anunciation v. W. Capital Fin. Servs. Corp., 97 F.3d 1458 (table), 1996 WL 534049, at *2 (9th Cir. Sept. 19, 1996) (unpublished); Int'l Controls Corp. v. Vesco, 556 F.2d 665, 669 (2d Cir.1977). Second, the amended complaint did not in fact contain a new claim for relief, and therefore did not require service under Rule 5(a)(2). The defendants are correct that the original complaint contained a Statement indicating that either Count Nine or Count Ten — which, precisely, is ambiguous — was subject to a presentment requirement, and that an amended complaint would be filed in the future to actually urge the claim following satisfaction of the presentment requirement.

Dismissal on this basis would exalt form over substance because the original and amended complaints are substantively identical. Rule 5(a)(2) ensures that a party, having been served, is able make an informed decision not to answer a complaint without fearing additional exposure to liability for claims raised only in subsequent complaints that are never served. Here, we have no doubt that the original complaints provided the defendants with fair notice that the plaintiffs sought recovery on both Count Nine and Count Ten. See Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 55 (1st Cir.2006). It is not as if satisfaction of the presentment requirement were somehow in doubt — the Statement revealed that notice of the claim had already been provided,...

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107 practice notes
  • Gonzalez-Camacho v. Banco Popular De P.R., Civil No. 17-1448 (DRD)
    • United States
    • U.S. District Court — District of Puerto Rico
    • 28 Marzo 2018
    ...challenges service of process, the burden changes to the plaintiff to prove that service was adequate. See Blair v. City of Worcester , 522 F.3d 105, 111 (1st Cir. 2008) ("once challenged, plaintiffs have the burden of proving proper service") (quoting Rivera-Lopez v. Municipality of Dorado......
  • Foxworth v. St. Amand, No. 08-1751.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 29 Junio 2009
    ...determination for unreasonableness. Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2327, 168 L.Ed.2d 16 (2007); see Delaney, 522 F.3d at 105. This is so because the more forgiving Brecht test subsumes the hybrid 570 F.3d 436 Chapman/AEDPA test. Fry, 127 S.Ct. at 2327. We proceed accordingly. ......
  • Schneider v. Bank of Am. N.A., No. 2:11-cv-2953-LKK-EFB PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 26 Marzo 2013
    ...the amendment 'opens' the default and new service is required under Rule 4." (citing Fed. R. Civ. P. 5(a)(2); Blair v. City of Worcester, 522 F.3d 105, 109 (1st Cir. 2008); D'Angelo v. Potter, 221 F.R.D. 289, 293 (D. Mass....
  • Taite v. Bridgewater State Univ., No. 16–CV–10221–PBS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 17 Febrero 2017
    ...that regard, a return of service generally serves as prima facie evidence that service was validly performed. Blair v. City of Worcester , 522 F.3d 105, 111 (1st Cir. 2008). The defendant has the initial burden of showing service was improper, and must be specific in identifying the specifi......
  • Request a trial to view additional results
106 cases
  • Gonzalez-Camacho v. Banco Popular De P.R., Civil No. 17-1448 (DRD)
    • United States
    • U.S. District Court — District of Puerto Rico
    • 28 Marzo 2018
    ...challenges service of process, the burden changes to the plaintiff to prove that service was adequate. See Blair v. City of Worcester , 522 F.3d 105, 111 (1st Cir. 2008) ("once challenged, plaintiffs have the burden of proving proper service") (quoting Rivera-Lopez v. Municipality of Dorado......
  • Foxworth v. St. Amand, No. 08-1751.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 29 Junio 2009
    ...determination for unreasonableness. Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2327, 168 L.Ed.2d 16 (2007); see Delaney, 522 F.3d at 105. This is so because the more forgiving Brecht test subsumes the hybrid 570 F.3d 436 Chapman/AEDPA test. Fry, 127 S.Ct. at 2327. We proceed accordingly. ......
  • Schneider v. Bank of Am. N.A., No. 2:11-cv-2953-LKK-EFB PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 26 Marzo 2013
    ...the amendment 'opens' the default and new service is required under Rule 4." (citing Fed. R. Civ. P. 5(a)(2); Blair v. City of Worcester, 522 F.3d 105, 109 (1st Cir. 2008); D'Angelo v. Potter, 221 F.R.D. 289, 293 (D. Mass....
  • Taite v. Bridgewater State Univ., No. 16–CV–10221–PBS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 17 Febrero 2017
    ...that regard, a return of service generally serves as prima facie evidence that service was validly performed. Blair v. City of Worcester , 522 F.3d 105, 111 (1st Cir. 2008). The defendant has the initial burden of showing service was improper, and must be specific in identifying the specifi......
  • Request a trial to view additional results

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