Antonio P. Duffy
Town of West Warwick, by and through its Finance Director, Malcolm Moore, et al.
of Appeal Kent County Superior Court No. 2017-132-A. (KC
10-33) Associate Justice Bennett R. Gallo
Plaintiff: Bradley M. Orleck, Esq.
Defendants: Kathleen A. Hilton, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
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
pertinent facts of this case are as follows. Sometime between
December 2007 and June 2008,  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.
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
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."
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. 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." 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 * * *."
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 ...