Issue: Under Massachusetts law, is a defendant is entitled to dismissal of the complaint with prejudice if the service of process was tardy?
|Area of Law:||Litigation & Procedure|
|Keywords:||Dismissal of the action with prejudice; Delay in service of process|
|Cited Cases:||500 N.E.2d 828; 450 N.E.2d 662; 520 N.E.2d 1319; 596 N.E.2d 358; 488 N.E.2d 1; 30 Mass. App. Ct. 951; 568 N.E.2d 621|
|Cited Statutes:||Mass. R. Civ. P. 4(j)|
Rule 4(j) of the Massachusetts Rules of Civil Procedure provides:
If a service of the summons and complaint is not made upon a defendant within 90 days after the filing of a complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
Mass. R. Civ. P. 4(j).
It is the plaintiff’s burden to demonstrate good cause for any delay in effecting service. Shuman v. The Stanley Works, 30 Mass. App. Ct. 951, 953, 571 N.E.2d 633 (1991). “Good cause” is “‘a stringent standard requiring diligen[t]’ albeit unsuccessful effort to complete service within the period prescribed by the rule.” Id. at 953. Half-hearted efforts by and inadvertence of counsel do not meet that standard. Glasser v. Degenhart, 1995 Mass. App. Div. 42 (1995). Further, good cause is not established by the absence of prejudice to the defendant. Stevens v. Bradlees, Inc., 1995 Mass. App. Div. 9 (1995) (citing Hull v. Attleboro Sav. Bank, 33 Mass. App. Ct. 18, 596 N.E.2d 358 (1992)). Finally, while not defined in Rule 4(j), “good cause” has been held to require at least as much as would be necessary to show excusable neglect as opposed to ordinary mistake, neglect or inadvertence. Id. (citing Braxton […]