Merrifield v. Dill

• Court: Superior Court of Maine
• Decided: March 1, 2011
• Docket: CUMcv-10-446
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, 55 CIVIL ACTION ~~~K~~~~. C~-~46 I JOHN MERRIFIELD,

Plaintiff

v. ORDER ON DEFENDANT'S MOTION TO DISMISS

SALLY DILL,

Defendant

Before the court is defendant Sally Dill's motion to dismiss for insufficient service

of process under M.R. Civ. P. 3. 1 For the following reasons, the motion is denied.

The plaintiff alleges that on September 11, 2004, he was riding a bicycle on

Broadway in South Portland, Maine when he was struck by the defendant's motor

vehicle. (CompI.

the plaintiff filed a complaint with this court. The plaintiff did not serve the defendant

with the complaint until December 22, 2010. The plaintiff did not, therefore, properly

serve the defendant within ninety days as required by M.R. Civ. P. 3, and he did not

seek an extension of time to obtain service within the ninety-day time frame pursuant to

M.R. Civ. P. 6(b). The plaintiff filed a return of service with the court on January 3,

2011. The defendant filed the motion to dismiss on January 10, 2011.

In his opposition and the attachments, the plaintiff states that he mailed a copy of

the summons and complaint to the defendant on November 29, 2010 and instructed her

1 The suit had been initiated by filing a complaint four days before the statute of limitations expired. See 14 M.R.S. § 752 (2011) ("All civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards ... ."). The filing of the complaint with the court commenced the action for purposes of the statute of limitations. M.R. Civ. P. 3.

1 to sign, date, and return the Acknowledgement of Receipt of Summons and Complaint.

She did not sign and return the Acknowledgement. Instead, she notified her insurance

company, which acknowledged receipt of the lawsuit by letter dated December 15,

2010. On November 28, 2010, the plaintiff sent a service instruction sheet to the

Kennebec Sheriff's Office for service on the defendant. 2 The Sheriff's Office conducted a

diligent search because the defendant had moved from Augusta to Hallowell. Service

was completed on December 22,2010.

The defendant served interrogatories and a request for production of documents

on plaintiff's counsel on December 20, 2010. The defendant filed an answer on

December 21,2010.

Rule 3 provides that "the return of service shall be filed with the court within 90

days after the filing of the complaint." M.R. Civ. P. 3. "If the ... return of service is not

timely filed, the action may be dismissed on motion and notice ...." Id. "In exercising

its discretion to decide whether to dismiss the complaint, the court [is] required to

consider all the relevant facts. One factor is the amount of delay before service; an

excessive or unreasonable delay may require dismissal unless it resulted from mistake

or excusable neglect." Maguire Constr., Inc., 2006 ME 112, 1 10, 905 A.2d at 817.

In this case, the plaintiff attempted to serve the defendant within the ninety-day

period pursuant to M.R. Civ. P. 4(c)(1); the defendant did not return the

Acknowledgement. Compare Brown v. Thaler, 2005 ME 75,115-6,880 A.2d 1113, 1115.

The plaintiff then arranged for service pursuant to M.R. Civ. P. 4(c)(2). Service was

completed within two weeks after the ninety-day deadline. The return of service was

2 Service by mail is permissible, but "if the defendant does not acknowledge service within twenty days the plaintiff is required to effect service by another means." Maguire Constr., Inc. v. Forster, 2006 ME 112, 9I 9, 905 A.2d 813, 816; M.R. Civ. P. 4(c).

2 filed soon thereafter. Any delay in completing service was not excessive or

unreasonable.

Contrary to the defendant's argument, the court is not "required to dismiss this

case with prejudice." To do so would be unjust based on the circumstances of the case.

The entry is

The Defendant's Motion to Dismiss is DENIED.

Date: February 28, 2011

3 ~K OF COURTS nberland County Jry Street, Ground Floor tland, ME 04101

BARRI BLOOM ESQ RICHARDSON WHITMAN LARGE & BADGER PO BOX 9545 PORTLAND ME 04112-9545

~K OF COURTS nberland County Jry Street, Ground Floor tland, ME 04101

ANDREW BROADDUS ESQ PO BOX 368 WESTBROOK ME 04092