Duffy v. Town of West Warwick

          Source of Appeal Kent County Superior Court No. 2017-132-A. (KC 10-33) Associate Justice Bennett R. Gallo

          For Plaintiff: Bradley M. Orleck, Esq.

          For Defendants: Kathleen A. Hilton, Esq.

          Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

          OPINION

          INDEGLIA, JUSTICE.

         The plaintiff, Antonio P. Duffy, appeals from a final judgment of the Superior Court granting the defendants' motion to dismiss pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. This matter came before this 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 not 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 allegedly assaulted, by uniformed officers of the West Warwick Police Department. Subsequently, on January 8, 2010, plaintiff, through his then-attorney, filed the instant action in Kent County Superior Court against Michael J. Nye and Stephen J. Blais-two officers of the West Warwick Police Department-and 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 summonses served upon defendants.

         In response, on March 5, 2015, defendants, in lieu of filing an answer, and in accordance with Rule 41(b), filed a motion to dismiss based on lack of prosecution and failure to serve process upon defendants within the time required in Rule 4(1) of the Superior Court Rules of Civil Procedure. In their memorandum in support of that motion, defendants argued that:

"Plaintiff effectuated 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 to obtain service."

The defendants went on to state: "In addition, under Rule 4l(b)(1), 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 preceding five years. He further noted that the complaint had been served immediately after plaintiff retained 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 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 averred 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-." The 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, things should have been settled." The court cited to our opinion in the case of Norcliffe v. Resnick, 694 A.2d 1210 (R.I. 1997), holding that prejudice to the defendant was not a necessary consideration in this case. On May 4, 2015, an order entered granting defendants' motion to dismiss with prejudice; and, on May 12, 2015, plaintiff timely appealed to this Court. However, we ...