N. Mattress Co., Inc. v. D. Gallant Management Assocs.

STATE OF MAINE SUPERIOR COURT CUMB ERLAND, ss. CIVIL ACTION DOCKET NO: CV-IO-204 7 'I I .~ "I' , , ' ) / ") I ,:." (' , i i , , ' ' iI ,I J~7 q ( , ,~ f) ...... , j ' i II ,

NORTHERN MATTRESS CO., INC., and PETER REDMAN,

Plaintiffs, ORDER ON DEFENDANT v. DEBORAH A. GALLANT'S MOTION TO DISMISS D. GALLANT MANAGEMENT ASSOCIATES, and DEBORAH A. GALLANT, S\I\l(, Or N'I/\\NE \)Hn\Pr\~rv\ ,>; (,\(,(\\'\; o\flce Defendants '.:\, ",. ~ ')1"'\" i~ ~ '1 1 ".

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Defendant Deborah A. Gallant moves to dismiss the plainti fEs' action against her on the grounds of insufficient service of process.

BACKGROUND

Deborah A. Gallant is the alleged founder, president, and owner of D. Gallant Management Associates. Gallant Management holds itself out as a "full service human resources management consulting firm" and is located at 75 Pearl Street in Portland, Maine. Ms. Gallant became involved with plaintiff Northern Mattress Co. when it hired Gallant Management on March 19, 2004, to assist in resolving conflicts among members of management. Ms. Gallant's involvement with Northern Mattress continued through June 2004, during which time she allegedly conducted her profession negligently, breached Gallant Management's contract with Northern Mattress, and breached various fiduciary duties. Both Northern 7\/[a ttress c1l1d Peter Redman c1 aim to have been harmed by these actions.

The plaintiffs filed their complaint against Ms. Gallant on April 30, 20Hl Maine I~llle of Civil Procedure 3 required them to file returns of service on the defendants on or before July 29, 2010. Deputy Sheriff Sammi Rinaldi served process on D. Gallant Management Services in hand on July 14, 2010. He then attempted to serve Ms. Gallant at her office on July 23, 2010, but vvas told she was not there. He left his card, and an assistant promised that Ms. Gallant would call him when she was available. Ms. Gallant never called. Deputy Sheri ff Rinaldi returned to the office on July 26,2010, and was told that !vls. Gallant was on the road and might be back on July 2Rth or 29th. He returned again on July 29, 2010, but was told that Ms. Gallant was still away.

On July 29th, 2010, the plaintiffs filed the return of service for D. Gallant Management Services. They also moved to enlarge the deadline for serving Ms. Gal1ant from July 29th, 201 0, to August 29th, 2010. The motion alleged that the sheriff's office had attempted to serve Ms. Gallant at her last known horne 'lddress, but that she no longer lived there cllld a new address could not be located. The plainti ffs did not submi t any evidence to support this assertion. They did, however, file the affidavit of Deputy Sheri ff Rinaldi, who stated that he believed Ms. Gallant was deliberately avoiding him. (Rinaldi Aff. ~r 5.)

On August 13, 2010, Ms. Gallant filed a limited appearance and moved to oppose the plainti ffs' request for an enlargement of time, and to dismiss the plaintiffs' case against her pursuant to Rules 3 and 12(b)(4). Ms. Gallant contended th'lt the plaintiffs' failure to effect service on her was due entirely to their own failure to exercise due diligencc, and that there was no cause to justify granting them an extension of time. She submitted an affidavit stating that she is almost never in her officc between the hours of 6:00 a.m. and 6:00 p.m., and that *3 her home address is a matter of public record. She also stated that she was present in the same courtroom as the plaintiffs and their attorney on June 29th and 30th, 201 0, when she testified in their action against Berstein, ShUf, Sawyer & Nelson, P.A., et al., Docket No. BCD-WB-CV-09-07. Ms. Gallant alleges that the plaintiffs could have served her at that time, but did not do so in order to conceal this action against her while she was testifying. She denied being asked to call Deputy Sheri ff Rinaldi, and denied that she was attempting to evade process. [n her motion, Ms. Gallant noted that Deputy Sheriff Rinaldi did not identify her home address in hjs affidavit, nor did he indicate what steps were taken to learn her home address.

The plaintiffs filed their opposition to Ms. Gallant on September 13, 2010, together with a motion for alternative service pursuant to Rule 4(d)(1). Additional documentation submitted with the motion indicated that Deputy Sheriff Rinaldi attempted to serve Ms. Gallant at her office multiple times beh<veen August 9,2010, and August 17,2010. These attempts appear to have been made between 9:30 a.m. and 3:00 p.m., hours when Ms. Gallant hi1d indicated in the record thi1t she would not be present. The motion for alternative service was opposed on September 21, 201 O. On November 9, 201 0, the court signed an order granting the plaintiffs' motion for alternative service without a hearing. The order directed that copies of the order, the summons, and the complaint be left at Ms. GaJ1ant's office and be mailed to her at that address.

On November 29, 2010, Ms. Ci1llc'lllt renewed her rnotion to dismiss for f'lilure to serve process ,lnd failure to sti1te a timely cJi1im. 1 She noted in her I The limitcltions period on the plaintiffs' cJi1ims against Ms. GaJlant expired in

June 2010, cltter they filed this complaint but before they served either dcfendclnt wi th process.

motion thi1t even if the court had granted the plaintiffs' motion to extend the time for service until August 29,2010 as they had requested, the plaintiffs had only attempted to serve her at her office. Their last attempt was made on August 17, 2010, and it was unsuccessful because it was made at a time when they should have known she would not be present. No additional motion was filed to enlarge the time period pclst August 29,2010. Ms. Gallant describes the court's order of November 9, 2010, as prernature and requests dismissal because the plaintiffs had failed to exercise due diligence and serve process through the methods described by Rule 4.

The relevclnt dates and ClctiC)JlS l11Cly be summarized as follows:

April 20, 2010- Plaintiffs file their complaint agClinst lvrs. CCll1ant and D. GClllant Management AssociCltes.

June 29-30, 2010- Ms. Gallant testifies on the plaintiffs' behalf in Docket No. BCD-WB-CV-09-07. (Gallant Aff. err 4.)

July 14, 2010- Deputy Sheriff Rinaldi serves process on D. Gallant Management Associates at its office located at 75 Peml St., Portland, MCline. (Rinaldi Aff. 11.)

July 2"[, 2010- An attempt is mClde to serve process on Ms. CClllClnt at a personal residence at 25 Westminster Terrace, Cape Elizabeth, Maine. (Worksheet attached to CClmpbell Aff. as Ex. C.)

July 23, 20] 0- Deputy Sheriff Rinaldi Clttempts to serve process on Ms. GClllant at her office at 75 Pearl St., Portland, MCline. He ]eClves his card C1nd C1n C1ssistC1nt tells him that she will have Ms. CClllant contact him by phone. (RinC1ldi Aff. err 3.)

July 26, 2010- Deputy Sheriff Rinaldi makes Cl second attempt to serve process on Ms. Gall Clf1 t at her office. He told that she is working "on the road," but may be back on the 2Hth or 29th. (Rinaldi Aff. (114.)

July 29, 2010- Deputy Sheriff RinCl]di makes Cl third attempt to serve process on Ms. GallC1nt at her office. He is told thC1t she is still C1way. (RinC1ldi Aff. (jl h.)

Expiration of the 90-day period to file a timely return of service after filing a complaint per M.R. Civ. P. 3.

Plaintiffs file a motion to enli1rge the time for person<:il service to August 29, 2010. This motion alleges that service was attempted at Ms. Gallant's residence, but does not include any supporting evidence.

Return of service on D. Gallant Management filed.

August 9, 201 0 - Deputy Sheriff Rinaldi attempts to serve process on Ms. Gallant at her Pearl St. office. (Aug. 18, 2010 Rinaldi Aff.)

August 13, 201 0 - Ms. GallJnt files J motion to dismiss with an affidavit stating that she is not at her Pearl St. office betvveen the hours of 6:00 a.m. Jnd 6:00 p.m. (Gallant Af£. ~j 3.)

August 16, 2010 ­ Deputy Sheriff Rinaldi Jttempts to serve process on Ms. Gallant at her PeJd St. office Jt 3:00 p.m. (Aug. 1H, 2010 Rinaldi Aff.)

August] 7, 2010 -­ Deputy Sheriff Rinaldi attempts to serve process on Ms. Gallant at her Pearl St. office at 9:30 a.m. (Aug. "H, 20Hl Rinaldi AfL)

August 29, 20IO ­ Deadline for filing return of service requested by plaintiffs in their motion to enlarge.

September ]3, 2010 ­ Plaintiffs file a motion requesting that the court order alternative service on Ms. Gallant "by leaving a copy of the Summons and of the Complaint at the Defendants dwelling house or usual place of abode, to wit: 75 Pearl St. ..." Attorney Campbell submits an affidavi t wi th invoices from the sheriff's office Clttached. (Campbell AfE. (114, Ex. C.) Among these invoices is Cl worksheet indicating that an Officer Melaugh attempted to serve process on Ms. G:lllant Clt 25 Westmi nster TerrClce, Cape Elizabeth, MCline, on July 21,2010. (Campbell AfE. Ex. C.) There is no other evidence that service was Clttempted Clt this Clddress or that 'ldditional efforts were made to locate Ms. Gallant's current residence.

November 9, 20W - PlClintiff's motion for alternCltive service is granted.

DISCUSSION

MCline Rule of Civil Procedure 3 requires Cl pJainti ff to file returns of service within 90 dClYs of filing Cl complClint. Failure to do so mClY result in *6 dismissal. M.R Civ. r. 3 (2010). The time period may be enLwged for cause if a motion is filed before the period expires, or by a showing of excusable neglect after. M.R Civ. P. 6(b) (2010). Rule 4 specifies that service may be accomplished "by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode wi th some person of suitable age and discretion then

residing therein ... . M.R. Civ. P. 4(d)(1) (201 0). Maine law is dear that /1 ,Ill individual's office or place of business is not a dwelling or abode. Cnllldell ltl/to

Co. v. Mrlllsfiefrl, 120 Me 187, 190, 113 A. 175, 176 (1921).

If the plainti ff can show "thc,t service as prescribed above cannot be made with due diligence," on motion the court may order that substitute service be made pursuant to Rule 4(g). M.R Civ. r. 4(d)(1) (2010). The motion must include a draft order indicating the requested means of service ,md be must supported by an affidavi t showing that:

(A) The moving party has demonstrated due diligence in attempting to obtain personal service of process in a mcmner otherwise prescribed by Rule 4 or by applicable statute;

(8) The identity and/ or physical location of the person to be served cannot reasonably be ascertained, or is ascertainable but it appears the person is evading process; and

(C) The requested method and manner of service is reasonably calcu1C1ted to provide actual notice of the pendency of the action to the party to be served and is the most practical manner of effecting notice of the suit.

M.R. Civ. r. 4(g)(1) (201 0).

The official comment to the rule explains that a plaintiff must "demonstrate that he or she has exhausted all reasonable attempts to m"ke service" by the ordinary rnethods enumerated in Rule 4 before being allowed to pursue substitute service. M.R. Civ. r. 4 advisory committee's note to July 'J, 2010 *7 amend. The comment acknowledges that specific facts will govern what constitutes "due diligence" or reasonable efforts under the circumstances. fd. However, it ,l1so states that a plaintiff should show that it "checked all publicly nvnilalJ!c databases (including computer databases) such as tax records, voting rolls, criminal history records, credit records, telephone directories, divorce or death records, utility records, post office records, and motor vehicle registry records in the jurisdiction where the defendant is most likely to be found." Td. (emphasis in original). The plaintiff "should also satisfy the court th;lt he or she has made reasonuble efforts to locate the current address of the purty to be served by checking privute sources: known relutives, former employers, former educationC11 institutions, and former neighbors." Tri.

Ms. Gallant has filed a motion to dismiss the action against her for luck of timely service. While her motion is not styled as such, it is effectively u motion to reconsider the court's November 9, 2010 order for u1ternative service. The first issue thut must be addressed is the timeliness of the defend,mts' two rnotions regarding service. First, the defendants moved to enlarge the initiu] period for service before the originul period had run. This motion required a showing of cause, but the court never acted on it. The second motion, requesting substitute service, W'IS filed 46 dC1Ys ufter the originul deadline for service, and 15 dC1Ys ufter the requested extension. As the motion WuS untimely, the plainti ffs needed to show excusable neglect. M.R. Civ. P. 6(b) (2010).

The plaintiffs contend that they exercised due diligence in their C1ttempt to serve Ms. Gallant, but that she willfully evaded service of process. Her eVllsion would excuse their delay in requesting substitute service. First, it is not cleur how ]'vIs. C"]]unt's u]]eged eVusiveness prevented the p]uintiffs from filing their motion for substitute service before their requested extended deadline. Second, the record does not c1emly show that Ms. Gallant was in fact eVclding process.

This is not an instance where Ms. Gallant knew the process server was at her door but churlishly refused to open it. See T.D. Br7llknorth, N.A. v. Hnwkills, 2010 ME 104, <j] 3,5 A.3d 1042, 1045 (service was effective where deputy left papers on doorstep of defendant's residence after conversing wi th defendant inside). The record shtY\/vs that the plaintiffs were face-to-face with Ms. Gallelnt after they filed their complaint, but did not serve her at that time. Later, the sheriff's office made one unsuccessful attempt to serve process on Ms. Gallant elt a residence or Zlbode. There is no evidence thZlt the office made any effort to locate an Zllternative residential address. Instead, the deputy sheriff repmtedly tried to ser"ve her at her office in the middle of day. Two of these attempts were mZlde after Ms. Gallant filed an affidavit stating that she was rarely in her office during the hours service was attempted.

The plaintiffs have not cited to any rule or law that would require Ms. Gcdlant to tell the plaintiffs where she could be found or otherwise make herself c1Vailable for convenient service. Absent such a rule, it is as hard to say th<lt Ms. Gallant actively evaded service. [nsteCld, the p1uintifFs did not exercise due diligence in trying to effect service. They repeatedly tried to serve Ms. Gallant by a single method that proved futile on the first attempt. More importantly, their fClilure to JocClte Ms. CCll1ant does not explClin their failure to file a timely motion.

Assuming that their motion for substitute service WClS timely, the plaintiffs did not show, 'lnd hClve not shown, that they were entitled to substitute service under Rule 4(g). As discussed Clbove, the record does not show thClt the plaintiffs "demonstrclted due diligence in clttempting to obtain personal service of process

H *9 in a matter otherwise prescribed by Rule 4," or that Ms. Gallant's whereabouts could not "reasonably be ascertained ...." M.R. Civ. P. 4(4)(1)(A)-(B) (201 0). There is no indication of what steps, if any, were taken to discover the location of Ms. Gallant's current residence. Likewise, there is no evidence that the plll1llti ffs or the sheriff's office attempted to learn where Ms. Gallant was working when she WllS "on the road." The motion and its supporting affidavit fall short of the showing contemplated by Rule 4.

The plainti ffs i1rgue thJt even if their motion for substi tute service WllS grllnted in error, the court should find that they effectively served Ms. Gi1llant on July 14, 20W. That was the date that process was served on D. Gallant Management Services, presumably giving Ms. Gallant actual notice of the sui t agclinst her in her personal capacity as wel1.

The Law Court has observed that service must be made according to "the plain legal requirementlsl" set forth in Rule 4 to ensure that it both gives cldequate notice and sutisfies the constitutional requirements for obtaining personal jurisdiction over the defendant. BroWIII'. Tllnyler, 2005 ME 75, (II 9, 880 A.2d 1113, 1116 (quoting Belllleft v. Circlls U.SA., 108 F.R.O. 142, 148 (N.D. Ind. '1(85)) (quotations omitted). However, the Court hus also stated that "actucll notice is tlw ultimLlte goal of any form of service [andl the discovery of a techniC<11 defect in service will not ordinarily negate the notice when actual notice is Llccomplished." Pllillips v. [011115011,2003 ME 127, (Ir 24, 834 A.2d 938, 945. As a result, "[wlhen actual notice is accomplished, a technical defect in service may be overlooked .... Otherwise, to accomplish service, a method specified by the rule must be properly utilized." III rc Ric/lnrd f., 2009 ME 93, (l[ 21, 978 A2d 2'17, 221.

The difficulty with the plaintiffs' argument is that defective service necessarily implies that some form of service was made. Service on Ms. Gallant would have been defective if, on July 14, 2010, Deputy Sheriff Rinaldi had left a copy of the summons issued for Ms. Gallant at her office. The record does not show that the deputy sheriff left any papers for Ms. Gallant. Instead, he kept returning during the day in an cltternpt to catch her in person. No summons was left for Ms. CaJ1ant at her office in the requisite time period, and no service was accomplished. Lack of service is not a mere technical defect, and finding thJt mere notice of suit was sufficient would deprive Rule 4 of significance.

FinaJ1y, the plaintiffs Clfgue thJt Ms. Gal1ant is estopped from raising insufficient service as a defense. See T.O. BnllknortlI, N.A. v. Hmukills, 2D10 ME 104, ~1113, 1h, 5 A.3d at] 046. As discussed above, the record does not indicate that Ms. CalL:mt WilS actively evading service, and this (Irgument hJS no merit. The en try is:

The plilintiffs' motion for substitute service WC1S granted in error. The court strikes its Order Allowing Alternative Service of Summons and Complaint dated November 9,2010, and substitutes it with this order denying the plaintiffs' motion for substitute service. The court grants defendant Deborilh A. Cilllant's motion to dismiss pursuant to Maine Rules of C failure to accomplish timely service. DATE: ~'!I 2." I \

HJ

MBERLAND COUNTY SUPERIOR COURT mjxxi013 PAGE A - ATTORNEY BY CASE VIEW NORTHERN MATTRESS COMPANY INC ET AL VS D GALLANT MANAGEMENT ASSOCIATES ET AL UTN:AOCSsr -2010-0043591 CASE #:PORSC-CV-2010-00204

01 0000003533 BENNETT, PETER 121 MIDDLE ST SUITE 300 PO BOX 7799 PORTLAND ME 04112­ 7799 F D GALLANT MANAGEMENT ASSOCIATES DEF RTND 08/13/2010 F DEBORAH A GALLANT DEF RTND 08/13/2010

02 0000002300 CAMPBELL, JOHN S 75 MARKET STREET PO BOX 369 PORTLAND ME 04112-0369 F NORTHERN MATTRESS COMPANY INC PL RTND 04130/2010 F PETER REDMAN PL RTND 04/30/2010