D'AMARIO v. Russo

• Decision Date: 14 November 1990
• Docket Number: Civ. A. No. 89-0011L.
• Citation: 750 F. Supp. 560
• Parties: Arthur D'AMARIO, III, v. Frank J. RUSSO; William Blackwell; The Distance, Inc.; Punch Enterprises; Capitol Records, Inc.; Harrison Funk; Gail Roberts; RTC Management; Jeff Ross.
• Court: U.S. District Court — District of Rhode Island

750 F. Supp. 560

Arthur D'AMARIO, III, v. Frank J. RUSSO; William Blackwell; The Distance, Inc.; Punch Enterprises; Capitol Records, Inc.; Harrison Funk; Gail Roberts; RTC Management; Jeff Ross.

Civ. A. No. 89-0011L.

United States District Court, D. Rhode Island.

November 14, 1990.

Arthur D'Amario, III, pro se.

Andrew S. Richardson, Boyajian, Harrington & Richardson, Providence, R.I., for Frank Russo.

Kenneth Bordon, of Higgins, Cavanagh & Cooney, Providence, R.I., for RTC Management and Gail Roberts.

Patrick Allienello, Providence, R.I., for The Distance, Punch Enterprises and Blackwell.

MEMORANDUM AND ORDER

LAGUEUX, District Judge.

This civil action is before the Court on motions by plaintiff and four defendants. Plaintiff moves to recover his costs of personal service under Fed.R.Civ.P. 4(c)(2)(D). Defendants William Blackwell, The Distance, Inc., Punch Enterprises and Capitol Records, Inc., all move to dismiss the complaint based on two grounds: failure to state a claim for which relief can be granted under Fed.R.Civ.P. 12(b)(6), and untimely service of process under Fed.R.Civ.P. 4(j). In addition, Capitol Records moves to dismiss the complaint because of insufficient service of process under Fed.R.Civ.P. 4 and because the claim fails to allege fraud with particularity as required by Fed. R.Civ.P. 9.

The long-standing and much-litigated dispute that underlies this complaint arose when plaintiff was prevented from photographing rock music performances at the Providence Civic Center. Plaintiff sued the Providence Civic Center Authority and concert promoter Frank J. Russo, charging that they violated his First Amendment rights. The suit was dismissed on the merits. D'Amario v. Providence Civic Center, 639 F.Supp. 1538 (D.R.I.1986), aff'd. 815 F.2d 692 (1st Cir.1987), cert. denied, 484 U.S. 859, 108 S.Ct. 172, 98 L.Ed.2d 125 (1987). The present complaint alleges that the various defendants here, all from the "rock" music industry, conspired to improperly influence the outcome of the first litigation.

All claims arising from this complaint against defendants Frank J. Russo, Gail Roberts and RTC Management have previously been dismissed by this Court pursuant to Fed.R.Civ.P. 12(b)(6). D'Amario v. Russo, 718 F.Supp. 118 (D.R.I.1989). Defendant Jeff Ross, as far as the Court knows, has not yet been served. On September 19, 1990, plaintiff voluntarily dismissed his claims against defendant Harrison Funk, in return for Mr. Funk's promise to testify on plaintiff's behalf at any trial on the merits.

BACKGROUND

Before this dispute arose, D'Amario worked as a freelance photographer, taking pictures of rock performers at concerts. Working through a commercial agency in New York, he sold his photos to entertainment publications. Many performers, however, included a clause in their contracts with the Providence Civic Center Authority prohibiting photographs at their concerts. Consequently, D'Amario, on several occasions, was prevented from photographing concerts at the Civic Center, or prevented from attending altogether when he stated his purpose.

In 1983, D'Amario filed a complaint in federal district court, based on 42 U.S.C. § 1983, against promoter Frank Russo and the Civic Center Authority, alleging that not letting him photograph concerts was a deprivation of his First Amendment rights of freedom of speech and freedom of the press. In 1986, Judge Selya, then a District Court judge, dismissed D'Amario's claim on the merits, holding that the `no camera' rule did not violate plaintiff's First Amendment freedoms. D'Amario v. Providence Civic Center, 639 F.Supp. 1538 (D.R.I.1986).

D'Amario, frustrated and angry over the dismissal of his suit and his failure to get reversal on appeal, next filed a complaint in the Rhode Island Superior Court, alleging that the defense witnesses in the earlier federal case, among other things, had libelled him, slandered him, conspired against him and tortiously interfered with his business relationships. That state suit was dismissed in 1987 when D'Amario failed to comply with court-ordered discovery.

Complaint

On January 6, 1989, D'Amario filed the present complaint. In it, he essentially rehashed the claims alleged in the state court proceeding. He named as defendants Frank Russo, a promoter of events held at the Providence Civic Center; William Blackwell, road manager for singer Bob Seger; The Distance, Inc., and Punch Enterprises, two promotion businesses run by Blackwell; record company Capitol Records, Inc.; Harrison Funk, former manager of the photo agency used by D'Amario; Gail Roberts, publicist for singer Diana Ross; RTC Management, Diana Ross's management company; and Jeff Ross, former road manager for Diana Ross.

In his somewhat vague and meandering complaint, plaintiff D'Amario, representing himself pro se, alleges basically that the defendants met at various times, in various groupings, traded defamatory and false information about him, and agreed to lie and withhold evidence in their depositions and other proceedings prior to the federal court trial. Actual legal claims include libel, slander, defamation, breach of contract, tortious interference with business relationships, intentional infliction of emotional distress and a federal civil rights claim based on 42 U.S.C. § 1985 and § 1986, alleging that defendants conspired to obstruct justice by denying plaintiff a fair trial in federal court.

Presently, the Court considers only the claims against defendants William Blackwell, The Distance, Inc., Punch Enterprises, and Capitol Records, Inc.

Discussion

1. Untimely service

Those four defendants have moved to dismiss the claims against them because plaintiff did not effect service of process in a timely manner. Fed.R.Civ.P. 4(j) requires that defendants be served with a summons and copy of the complaint within 120 days of the filing of the complaint. A plaintiff who fails to meet the deadline faces dismissal of the suit unless he can show good cause for the delay.¹ Here, plaintiff filed his complaint on January 6, 1989. Service was not made on Blackwell, The Distance and Punch Enterprises until April 19, 1990. In the case of Capitol Records, service was not effected until June 1, 1990.

Although plaintiff clearly is not in strict compliance with the Rule, the Court finds that between the filing of the complaint and the final service of process, plaintiff made diligent efforts to effect service sufficient to defeat the motions to dismiss. In interpreting the Rule, the U.S. District Court for the Southern District of New York stated, "The harsh sanction of Rule 4(j) is appropriate to those cases in which non-service was the result of mere inadvertence. Where plaintiff has made a reasonable effort to serve defendant, Congress intended that the 120 day deadline be extended." Geller v. Newell, 602 F.Supp. 501, 502 (S.D.N.Y.1984) (citations omitted). See also United States v. Ayer, 857 F.2d 881 (1st Cir.1988); Arroyo v. Wheat, 102 F.R.D. 516 (D.Nev.1984). When the plaintiff has failed to make any attempt at service during the 120-day period, it is likely that a court will find that no showing of good cause for violation of the 120-day rule has been made. See Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304 (5th Cir.1985); Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476 (N.D.Ill.1984).

The record in the instant case indicates that plaintiff attempted to serve all four defendants by sending a copy of the summons and complaint along with form 18-A to each, using first-class mail in compliance with Fed.R.Civ.P. 4(c)(2)(C)(ii). Those mailings occurred on January 14, 1989. None of the defendants acknowledged receipt. In February, 1989, plaintiff hired a Michigan constable who attempted, unsuccessfully, to serve Blackwell, The Distance and Punch Enterprises on numerous occasions throughout the month. On March 24, 1989, plaintiff petitioned this Court for alternative service of process, pursuant to Fed.R. Civ.P. 4(c)(2)(B)(iii). For reasons unknown to the Court, this motion was not brought to the attention of the Court. No evidence was presented at the hearing on this matter which indicates that blame for this inaction should be assessed against plaintiff. Approximately one year later, when there had been no ruling on the motion, plaintiff again employed private process servers, who finally succeeded in serving the four defendants in April and May of 1990.

The Court finds that plaintiff's efforts to notify defendants of the claims against them were reasonable and diligent under the circumstances, and that failure to effectively serve defendants was not "mere inadvertence." This conclusion is bolstered by three points.

First, plaintiff's exhibits indicate that defendants Blackwell, The Distance and Punch Enterprises tried to evade service. It appears that plaintiff's mailings to those defendants served as an "early warning" to them and they then managed to evade personal service when the constable came around thereafter. The constable visited Punch Enterprises five times and Blackwell and The Distance seven times, finally concluding (as he wrote to plaintiff) that defendants were evading service. The U.S. Court of Appeals for the First Circuit has held that, "Evasion of service by a putative defendant constitutes good cause for failure of service under Rule 4(j)." Ruiz Varela v. Sanchez Velez, 814 F.2d 821, 823 (1st Cir.1987).

Second, plaintiff acted in good faith and did not "sleep on his rights." He certainly did not stand to benefit from any delay. Conversely, defendants have made no showing that they were prejudiced by the delay in service. These are all factors considered by the First Circuit in granting the plaintiff an extension in U.S. v. Ayer, 857 F.2d 881, 885 (1st Cir.1988).

Finally, a court may grant some leniency to a pro se plaintiff who diligently pursues his claim. In LaBruno v. Fauver, the District Court of New Jersey denied defenda...