Case of the Day: Dumas v. Tenacity Construction
Posted on April 4, 2019
The case of the day is Dumas v. Tenacity Construction Inc. (Mass. App. Ct. 2019). It isn’t a traditional Letters Blogatory case, but it’s instructive on the practicalities of challenging service after judgment.
George Dumas was working on a construction project in Northborough, Mass. when he was knocked off a ladder by falling roof shingles and seriously injured. The shingles fell because a subcontractor’s truck struck the building. Dumas sued Tenacity, the general contractor, alleging negligent supervision.
The deputy sheriff’s return of service said that the summons was served “by delivering in hand to Mark Foley, person in charge at the time of service for Tenacity Construction Incorporated, 194 Newbury Street Apartment 7 Peabody, MA 01960.” Tenacity did not answer, and the case resulted in a default judgment for $3.2 million in damages. Tenacity moved to set aside the judgment under MRCP 60(b)(4) on the grounds that the judgment was void because of insufficient service of process. There was no question that the deputy sheriff had served the summons at the correct address, but Tenacity submitted affidavits from Foley and from Arthur Pimental, Tenacity’s president. The gist of the affidavits was that Pimental, not Foley, was the person in charge of the business at that location, which is the key fact in judging the validity of the service under MRCP 4(d)(2). Foley also averred that he did not remember being served, which as the judge pointed out was something less than a denial that he had been served. Tenacity’s lawyer submitted his own affidavit, detailing his accounts of the efforts made to give Tenacity notice of the case.
The judge who heard the motion held that the return of service showed that service had been made and that the affidavits Tenacity submitted were not credible, and Tenacity appealed.
In the olden days, the sheriff’s return was conclusive, and the remedy, in case of a false return of service, was an action against the sheriff. But today, we say that the return is merely prima facie evidence of the facts it recites. But if the judge does not hold an evidentiary hearing on a motion to set aside a judgment as void, he or she is required to credit the movant’s affidavits if they are uncontroverted. Here, the sheriff’s return merely recited the rule and was entirely conclusory on the question of whether Foley was the “person in charge.” The court held it was insufficient to rebut the affidavits. Once the defendant has produced evidence tending to show that the service was improper, the burden is on the plaintiff to persuade the court that the service was proper.
All this said, Tenacity’s affidavits, while enough to call the service into question, did not conclusively show that Tenacity was entitled to have the judgment set aside. The court therefore remanded the matter for further proceedings, including perhaps some discovery. So Dumas might yet prevail by default.