Kennedy v. Beth Israel Deaconess Medical

Decision Date07 January 2009
Docket NumberNo. 06-P-1918.,06-P-1918.
Citation73 Mass. App. Ct. 459,898 N.E.2d 529
CourtAppeals Court of Massachusetts

Stephen M. O'Shea, Boston (Marcia K. Divoll with him) for the defendants.

H. Paul Carroll for the plaintiff.



The defendants appeal from a Superior Court judge's denial of their motion for reconsideration of the order allowing the plaintiff's motion to vacate the judgment of dismissal of his complaint. Mass.R.Civ.P. 4(j), as appearing in 402 Mass. 1401 (1988). The judge granted the plaintiff's motion to vacate the judgment pursuant to Mass. R.Civ.P. 60(b)(6), 365 Mass. 829 (1974), and the defendants contend that the judge erred when he did not apply Mass.R.Civ.P. 60(b)(1)-(b)(3), 365 Mass. 828 (1974), and the one-year time limit imposed thereby, to the facts of this case. Moreover, the defendants claim that even if the judge properly applied rule 60(b)(6), his ruling was error because he determined that the plaintiff filed the motion to vacate judgment within a reasonable time. As we agree with the defendants' contentions, we reverse.

Procedural background. On July 16, 2004, the plaintiff, Michael Dana Kennedy, commenced a medical malpractice action against the defendants, Beth Israel Deaconess Medical Center, Inc. (hospital), Dr. Abraham Morgentaler, and Dr. Howard Libman, alleging failure on their part to diagnose cystic fibrosis during their care and treatment of him up to and including December 3, 2001.

The plaintiff's lawyer (plaintiff's counsel or counsel) failed to serve the summons and complaint on the defendants by the service deadline of October 14, 2004, and filed five days late, on October 19, the first of his six "emergency" ex parte motions to enlarge the time for service of his summons and complaint. Counsel explained that he failed to serve the complaint on the defendants within the allowable ninety days because he recently had engaged an expert to review with him the complexity of the case so that he could amend the skeletal filing he had made and that he had miscalendared the service deadline date. This motion, like the plaintiff's counsel's next five motions, was allowed, and the judge granted an extension to November 19, 2004.

On November 19, the plaintiff's counsel filed his second motion to enlarge the time for service. He explained that, in addition to the previously-described expert advice he was seeking in drafting a more detailed complaint, he was the victim of an assault on November 3, 2004, and unable to practice for two weeks (a reason that was not mentioned in any subsequent motion). The judge extended the deadline to December 19, 2004.

On December 22, 2004, now not only beyond the latest deadline but also beyond the three-year statute of limitations, the plaintiff's counsel filed his third request to extend the service deadline. In this request, in addition to again stating his need to consult with experts in order to draft a more comprehensive complaint which he had yet to file, he said that on December 16 or 17, 2004, he asked Michael Listwan, the coordinator of the hospital's risk management department (coordinator), to accept service for all of the defendants; allegedly the coordinator told him that such an agreement might be "likely." The judge allowed a new service deadline of January 14, 2005.

The plaintiff's counsel again waited until the exact deadline on which to file his fourth motion to extend; the reason he gave on this occasion was that a sheriff told him, in an undated conversation, that service could not be guaranteed by the deadline. The issue of the defendants' acceptance of service was not mentioned. In any event, he requested and the judge granted an extension to January 31, 2005.

Then, once again waiting until that deadline to file the fifth motion, plaintiff's counsel sought an extension to February 15, 2005; this time he stated that on account of "recent inclement weather, service on the defendants has not been completed yet" and that he had "contacted a process server who has confirmed that process can be made `in a timely manner.'" He provided no details about the alleged "recent inclement weather" that had prevented service for two weeks nor how that would have prevented service. He also did not refer to any agreement to accept service nor why, if an agreement to accept service had been made, he did not accomplish service in that manner or had the need for any professional process server. Also absent from the motion was any mention of his perceived need for earlier postponements due to his efforts to prepare a more comprehensive complaint nor any explanation why an amended complaint still had not been filed, if indeed earlier delays in service had been occasioned by such efforts.

On February 22, 2005, plaintiff's counsel filed the sixth and final motion to extend, again untimely, simply stating as reason therefor that he "has not been able to complete service within the time frame allowed ... [and that] allowing a small additional enlargement of time for service will not prejudice the parties and will result in judicial economy by having a comprehensive [a]mended [c]omplaint that more fully sets out the complicated medical issues...." The judge granted a new deadline of March 5, 2005, within which to serve the defendants. The plaintiff's counsel failed to meet that deadline and did not seek any further extensions or other forms of relief. The court dismissed the case on May 23, 2005, pursuant to Mass.R.Civ.P. 4(j). On May 31, 2005, a judgment of dismissal was entered in favor of all the defendants.

Nearly thirteen months later, on June 28, 2006, the plaintiff's counsel filed (in hand) an ex parte motion to vacate the judgment of dismissal, which was allowed that same day. In support of his motion, the plaintiff's counsel filed an affidavit offering an explanation only of the last efforts at service of process on March 4 2005.2 However, neither the motion nor the affidavit offered any explanation as to the reasons for the thirteen-month delay from the date of the entry of the judgment of dismissal to the filing of the motion for relief from that judgment. Also on June 28, 2006, the Superior Court judge granted counsel an additional twenty days (running from June 28, 2006) to serve the defendants. Plaintiff's counsel served an amended complaint upon the defendants on July 18, 2006.

Following service of process, the defendants filed a motion for reconsideration of the order granting relief from judgment of dismissal which, in addition to making a challenge to the merits of the order under rule 60(b), was their first opportunity under rule 4(j) to challenge the sufficiency of counsel's reasons for the several extensions of service. In support of his opposition to this motion, the plaintiff's counsel filed his own affidavit where he again stated that the coordinator had agreed to accept service on behalf of all the defendants, that the coordinator subsequently took a leave of absence, and that the hospital refused the deputy sheriff's attempt to make service, presumably due to a misnomer of the hospital's name. After a hearing on the defendants' motion for reconsideration (no hearing transcript exists), the judge denied the defendants' motion.

The motion judge, confining his examination to counsel's final efforts to effectuate service, found that the parties had an agreement to accept service and that plaintiff's counsel attempted to serve the defendants on March 4, 2005 (one day before the sixth deadline), but that the hospital breached the agreement when hospital security personnel escorted the deputy sheriff off the premises due to a de minimis misnomer of a party name.3 The judge ruled: "There is a substantial reason to warrant relief from dismissal since to allow the defendants to dismiss this complaint based on their own failure to accept service would be a substantial injustice." The judge determined no "particular" prejudice had accrued to the defendants.4 The judge also observed that the hospital's risk management attendant had notice of plaintiff's counsel's claims and the motion had been brought only thirty days after the time that plaintiff would have been allowed under rule 60(b)(1)-(b)(3). A single justice of this court granted leave to the defendants to file an interlocutory appeal from the order denying the defendants' motion for reconsideration.

Discussion. The issue on appeal is whether the judge made an error of law in considering the plaintiff's counsel's motion to vacate under rule 60(b)(6) instead of rule 60(b)(1) or (b)(3) and whether, under 60(b)(6), the plaintiff's counsel moved for relief from judgment within a reasonable time. While we think the judge's decision reflects a concern over a perception that the coordinator, as defendant's agent, mistreated the plaintiff's counsel in his last-minute attempt to effect service, we are not convinced that the judge applied the correct legal standard, requiring an assessment and finding of good cause for plaintiff's counsel's serial, untimely, and uneffected service of the underlying complaint, given the history of reported reasons for the failure to effectuate service unaddressed by the judge who granted relief. See Mass.R.Civ.P. 4(j). We are likewise not satisfied that the judge appropriately concluded that counsel's motion presented extraordinary circumstances that "did not fit neatly or completely within rule 60(b)(1) or (3), and justified relief under rule 60(b)(6)." Owens v. Mukendi, 448 Mass. 66, 74, 858 N.E.2d 734 (2006). Whichever section of the rule applies, it does not appear that the plaintiff moved for relief within a reasonable time.

Rule 60(b)(1). The facts of this case as a whole fall within the purview of rule 60(b)(1) because the plaintiff's counsel's actions consistently showed his...

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