Opinion
CIVIL ACTION NO. 00-10956-GAO.
July 16, 2007
ORDER
The following orders are made with respect to the following pending motions:
1) Plaintiff's Motion to Compel the Attendance of William Pellegrini at his Deposition Pursuant to Rule 45 of the Federal Rules of Civil Procedure (dkt. no. 204) and William Pellegrini's Motion for a Protective Order (dkt. no. 208)
On April 22, 2005, the Court ordered William Pellegrini to submit to a psychiatric examination by Court-appointed psychiatrist Dr. Bessel A. van der Kolk to determine whether his mental health would be adversely affected if he should be required to give deposition testimony in this case, and, if so, whether any measures could be taken to mitigate any potential harm. At a hearing on February 10, 2006, the parties represented to the Court that they were awaiting the psychiatrist's report and that the defendants' attorney would contact Pellegrini's personal attorney, Mr. Hagemeyer, to inform him that the Court would like a written status report. Since that time, no report has been received.
Without such a report, it is not possible to resolve these pending motions satisfactorily. The parties are ordered to consult with Attorney Hagemeyer and to submit a written report with the Court within two weeks of this Order indicating the status of the proposed Pellegrini deposition.
2) Motion of Defendants William Andriette and Others for Entry of a Finding of Contempt (dkt. no. 261) and Plaintiffs' Response to the Motion of Defendant Andriette and Others for Entry of a Finding of Contempt, Plaintiffs' Concurrence in that Motion, and Suggestion Concerning an Appropriate Sanction (dkt. no. 264)
Twelve defendants have moved that they themselves be found in contempt by reason of their refusal to comply with the Court's August 4, 2005 Order, as subsequently amended, requiring them to disclose the identities of persons who attended North American Man/Boy Love Association ("NAMBLA") member meetings between 1994 and 1998. The defendants state that, once a finding of contempt is entered, they will appeal the contempt finding, pursuant toGill v. Gulfstream Park Racing Ass'n, Inc., 399 F.3d 391 (1st Cir. 2005), as a means of challenging the underlying ruling that rejected their asserted associational privilege under the First Amendment. In turn, the plaintiffs have responded with their own motion for contempt, seeking entry of judgment against these defendants as an appropriate sanction pursuant to Federal Rules of Civil Procedure 37(b)(2)(C).
The Court is mindful that the defendants have refused to comply with the Court's prior discovery order. However, because the defendants' refusal can be appropriately remedied through other sanctions, a finding of contempt is unwarranted. As a sanction for failure to make discovery, Rule 37(b)(2)(B) authorizes "[a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence." Consistent with this authority, the Court imposes on the twelve defendants the following sanctions:See 56 37
• These defendants are barred from presenting any evidence concerning who attended NAMBLA member meetings and what transpired at such meetings that relies on information not previously disclosed to the plaintiffs. This includes a prohibition on both direct testimony of witnesses not previously made available to the plaintiffs and cross-examination of witnesses using information regarding the NAMBLA member meetings unknown to the plaintiffs; and • The defendants' current motion for summary judgment (dkt. no. 279) is DENIED because, due to the defendants' deliberate refusal to comply with the Court Order, the plaintiffs are handicapped in their ability to oppose the defendants' motion. Fed.R.Civ.P. (f). The plaintiffs' motion for a stay (dkt. no. 298) is MOOT. • The Court reserves whether additional sanctions under Federal Rule of Civil Procedure (b)(2) may become necessary in light of the defendants' failure to make discovery as ordered. In all other respects, the defendants' motion for a finding of contempt (dkt. no. 261) and the plaintiffs' related motion (dkt. no. 264) are both DENIED.3) Plaintiff's Motion for Entry of a Finding of Contempt and Entry of Judgment Against Defendants Dennis Mintun, Tecumseh Brown, Gary Hann, and Walter Bieder (dkt. no. 271) andPlaintiff's Amended Motion for Entry of a Finding of Contempt and Entry of Judgment Against Defendants Dennis Mintun, Tecumseh Brown, Gary Hann, and Walter Bieder (dkt. no. 277)
The plaintiffs seek a default judgment, authorized under Fed.R.Civ.P. 37(b)(2)(C), and an order of contempt, authorized under Fed.R.Civ.P. 37(b)(2)(D), against pro se defendants Dennis Mintun, Tecumseh Brown, Walter Bieder, and Gary Hann. As grounds, the plaintiffs argue that these defendants have failed to produce the information required by the discovery order of August 4, 2005, by willfully ignoring the Order.
Brown's son, writing on behalf of defendant Brown, refers to a June 14, 2004 letter from a "G. Davidovitch" sent to the plaintiffs' attorney through which Mr. Davidovitch purports to respond to the plaintiffs' discovery requests on behalf of himself and defendant Brown. The letter gives some information about Davidovitch's and Brown's general involvement with NAMBLA. That letter may be treated as Brown's own response to the discovery request. It is sufficiently responsive to the plaintiffs' discovery requests that sanctions are not warranted at this time.
Mintun and Hann have both filed motions to dismiss. Their failure to make discovery may have stemmed from their belief that they were not proper parties to the case expected to comply with discovery orders. Giving them the benefit of the doubt, a punitive sanction is inappropriate at this time. However, as discussed below, both motions to dismiss are denied in this Order. Consequently, Mintun and Hann are both active parties in the case who have an obligation to respond to discovery requests. Both are now directed to comply with the August 4, 2005 Order within thirty-five days from the date of this Order.
As for defendant Bieder, although he did not file a formal response, a review of the docket reflects that there has been some difficulty in identifying the appropriate address for defendant Bieder. See Clerk's Notes for Discovery Conference held on March 24, 2004. More recently, Bieder has notified the Court of an address change and supplied the plaintiffs with some discovery. See (Response of Defs. William Andriette and Others to Pls.' Mot. for Entry of a Finding of Contempt and Entry of Judgment against Certain Defs. Exh. 2.) A sanction would be premature at this juncture. Rather, the Court orders that a copy of the discovery requests and the August 4, 2005 Order along with this Order be sent to defendant Bieder, at his last disclosed address. He will have thirty-five days from the date of this Order to comply with the August 4, 2005 Order.
Except as described above, the plaintiffs' motion (dkt. no. 277) is DENIED. The plaintiffs' "Motion for Entry of a Finding of Contempt and Entry of Judgment Against Defendants Dennis Mintun, Tecumseh Brown, Gary Hann, and Walter Bieder," (dkt. no. 271) is simply an earlier version of the plaintiffs' motion 277, and it may be deemed resolved by the ruling as to motion number 277.
4) Motion of John Doe for Modification of the Order of August 4, 2005 (dkt. no. 275)
John Doe, a non-party to this action, has moved to vacate this Court's order requiring the disclosure of the identities of the NAMBLA members who attended meetings from 1994 to 1998. In support, Doe cites the right to associational privacy as afforded by the First Amendment of the U.S. Constitution and Article 16 of the Massachusetts Declaration of Rights. These arguments were raised by defendants and rejected by the August 4, 2005 Order. Consistent with that prior ruling on the issue, this motion is DENIED.
5) Plaintiffs' Motion for Reconsideration of the Order Quashing Certain Subpoenas Entered April 22, 2005 (dkt. no. 314)
On April 22, 2005, this Court granted Charles Jaynes' motion to quash the plaintiffs' subpoena to the keeper of records at the Massachusetts Department of Corrections seeking documents related to Jaynes' incarceration at the Massachusetts Correctional Institution at Concord and other general information concerning Internet access at that facility. Curley v. Radow, No. 00-10956 (D. Mass. April 22, 2005) (order quashing subpoena for Jaynes' records related to his imprisonment at Massachusetts Correctional Institution at Concord) (dkt. no. 248). In so doing, the Court reasoned that because the plaintiffs were already certified to receive CORI information for Jaynes, if the information sought fell within the scope of her certification, it would be provided to the plaintiffs. Alternatively, if the information exceeded the scope of the plaintiffs' certification, then this Court declined to "offer an interpretation of the state statute or regulation that is broader than the interpretation given by the competent state authorities." Id.
Now the plaintiffs move to reconsider the Court's previous order in light of the response of the Massachusetts DOC to the plaintiffs' request. In it response, the DOC stated that it would produce the requested information once a court order was obtained requiring such production. The DOC does not provide or cite any authoritative interpretation of the relevant state statutes or regulations. Instead, the DOC appears to seek an interpretation from this Court of the Department's obligations under state law. This is exactly what this Court declined to do it is original ruling on this issue.
Accordingly, this motion is DENIED.
6) Motion to Dismiss by Dennis Mintun (dkt. no. 324) andPlaintiffs' Motion to Strike Response of Defendants Andriette and Others to Plaintiffs' Response to Defendant Mintun's Motion to Dismiss (dkt. no. 335)
On March 6, 2006, pro se defendant Dennis Mintun moved to dismiss the complaint as to him on the grounds that he had not been properly served. In his supporting affidavit, Mintun states that he has not filed an answer, responded to plaintiffs' discovery requests, or the Court's orders of January 21, 2005 and August 4, 2005 because he was never served with a summons and complaint in this action or any other subsequent filing. He asserts that in every instance, he was residing at a location different from where the documents were delivered.
The summons and complaint were served at 17730 Via Valencia in San Lorenzo, California, on February 16, 2002, at which point Mintun alleges he was living in Daly City, California. The plaintiffs' discovery requests were mailed to San Lorenzo, California, on February 11, 2004, at which point Mintun says he was an inmate in the Idaho State Penitentiary in Boise, Idaho. The Court's orders of January 21, 2005 and August 5, 2005 were also sent to San Lorenzo, at which point Mintun was apparently still housed in the Idaho State Penitentiary.
The plaintiffs have opposed this motion arguing that Mintun was properly served under both the Federal and Massachusetts rules of civil procedure. In support, the plaintiffs point to the return of service (dkt. no. 100) indicating that service was effected on February 16, 2002, and the fact that Mintun had actual notice of the suit, as evidenced by his December 2003 affidavit in support of the ACLU-defendants' motion for summary judgment. See Fed.R.Civ.P. 4(e); Mass. R. Civ. P. 4(d), (e). The plaintiffs also argue that Mintun's 2003 affidavit waived his ability to raise the defense of insufficient process under Federal Rule of Civil Procedure 12(h)(1).
The defendants represented by the ACLU filed a "response" to the plaintiffs' opposition to Mintun's motion. Of importance, the ACLU defendants argue that the San Lorenzo address given to the plaintiffs by the ACLU defendants for Mintun (where service was made) was not given as Mintun's "last known address" or usual place of abode but rather was simply the address as reflected in NAMBLA records for him, records which were not necessarily current. The plaintiffs have moved to strike the ACLU response arguing it is improper because it was not submitted on behalf of Dennis Mintun.
In disputes regarding service of process, the court engages in a burden-shifting analysis. "Once [service is] challenged, plaintiffs have the burden of proving proper service."Rivera-Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992). That burden cannot be satisfied by a mere showing of actual notice on the defendant's part. Omni Capital Int'l v. Rudolf Wolff Co., 484 U.S. 97, 104 (1987); Precision Etchings Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21, 24 (1st Cir. 1992) ("The federal courts have made it abundantly clear that actual notice itself, without more, is insufficient to satisfy the requirements of Fed.R.Civ.P. 4(d)(1)." (citing Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988))). Typically, however, a return of service is "strong evidence" of service. 4B Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1130 (3d ed. 2002); see also O'Brien v. R.J. O'Brien Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993) (finding that the return of service can be accepted as prima facie evidence that service was effected, and is only overcome by strong and convincing evidence); Hicklin v. Edwards, 226 F.2d 410, 414 (8th Cir. 1955);Cleaves v. Funk, 76 F.2d 828, 829 (10th Cir. 1935) (finding the return of service to be prima facie evidence of its truthfulness).
Although actual notice alone is insufficient to satisfy the burden of service, generally, actual notice will lead courts to apply a liberal construction of the rules of service. Armco, Inc. v. Penrod-Stauffer Bldg. Systems, Inc., 733 F.2d 1087, 1089 (4th Cir. 1984) ("When the process gives the defendant actual notice of the pendency of the action, the rules, in general, are entitled to a liberal construction."). While the liberal approach permits the court to overlook technical errors, it does not nullify the essential requirements of service. Armco, 733 F.2d at 1089 ("But the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored."); United States v. Mollenhauer Laboratories, Inc., 267 F.2d 260, 262 (7th Cir. 1959) ("The liberal construction rule which the government seeks to invoke cannot be utilized as a substitute for the plain legal requirement as to the manner in which service of process may be had.").
Once plaintiffs have met their burden, the defendant then bears the burden of rebuttal. Although the precise quantum of proof necessary to rebut the plaintiff's showing is unclear, some courts have found that "[a]n affidavit [alone] that merely denies service does not overcome a signed return of service because, if it did, it 'would be totally contrary to the presumption that a return of service is prima facie evidence of service, and would thereby render the return of service all but meaningless.'" Holt v. United States, No. 03-0627, 2005 WL 1563339, at *3 (E.D. Wis. June 29, 2005) (quoting Trs. Of Local 727 Pension Fund v. Perfect Parking, Inc., 126 F.R.D. 48, 52 (N.D. Ill. 1989)); see also Advo, Inc. v. Beninati, 2005 Mass. App. Div. 95 (Mass. Dist. Ct. 2005) ("Further, the defendant's conclusory averment that he was not served with the complaint was insufficient to rebut the prima facie effect of the sheriff's return of service attesting to his delivery of the complaint and summons to the defendant's "'last and usual place of abode.'").
Under Federal Rule of Civil Procedure 4(e), service upon an individual within a judicial district of the United States who has not waived service may be effected by either following the law of the State in which the district court is located or by leaving copies of the summons and complaint at the individual's dwelling house or usual place of abode with some person of suitable age and discretion. Whether service was proper must turn on the particular facts and circumstances of each case. See, e.g., Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963). In this case, the return of service states that the summons and complaint were left with a person of suitable age and discretion at 17730 Via Valencia, San Lorenzo, California, identified from NAMBLA records (per the parties' stipulation) as Mintun's address. See Mass. R. Civ. P. 4(d)(1).
The parties now appear to agree that at the time of service Mintun also maintained a second address in Daly City, California. For purposes of service, an individual may have more than one "'dwelling house or usual place of abode,' provided each contains sufficient indicia of permanence." Ali v. Mid-Atlantic Settlement Services, Inc., 233 F.R.D. 32, 36 (D.D.C. 2006) (quoting Nat'l Dev. Co. v. Triad Holding Corp., 930 F.2d 253, 257 (2d Cir. 1991)). In addition to the parties' stipulation that the San Lorenzo address was Mintun's last known address, the plaintiffs offer a report from Special Agent Consultants, Inc., an investigative service hired by the plaintiffs, indicating that an "asset search" of Mintun revealed his address, at the time of service, to be in San Lorenzo. Massachusetts courts have found sufficient service where the plaintiff was able to show that the address where service was made was a mailing address provided by the plaintiff to third parties. See Bird v. Ross, 473 N.E.2d 1097, 1099 (Mass. 1985) (finding sufficient service when the plaintiff served process at the address provided by the defendant to the plaintiff's insurance company six months before the action was filed). Finally, the court also notes that it was not until October 2003 that mailing sent to the San Lorenzo address were returned as undeliverable — once again indicating that the San Lorenzo address was a valid address for the defendant at the time process was delivered there.
There can be no doubt that Mintun had actual notice of the case because he executed an affidavit in support of a motion filed by other defendants. The affidavit, however, was filed by others, therefore it does not strictly speaking amount to an appearance by Mintun in the case, and thus is not a waiver of any objection to service under Rule 12(h)(1). Nonetheless, it mitigates any residual concerns about unfairness in holding sufficient the service of process made at the address identified by the very same people on whose behalf he executed the affidavit.
Based on the above evidence presented by the plaintiffs, it appears that sufficient process was made in accordance with Massachusetts Rule of Civil Procedure 4(d)(1) and so the Federal Rules of Civil Procedure 4(e)(1) is also satisfied. Therefore, Mintun's motion to dismiss is DENIED. The plaintiffs' motion to strike the response by the defendants represented by the ACLU is also DENIED.
7) Motion to Enforce Contract and Dismiss Defendant Hann by Estoppel (dkt. no. 334), Motion for Dismissal With Prejudice (dkt. no. 339), and Motion for Appointment of Counsel (dkt. no. 334)
Defendant Gary Hann also moves for dismissal, asserting that the plaintiffs are estopped from asserting claims against him as a result of a contract entered by the defendant and the plaintiffs, in which the plaintiffs agreed to release the defendant from all liability in exchange for his full, complete, and truthful cooperation. Given that there are conflicting versions of the circumstances surrounding how the contract was entered into, how the contract was subsequently breached, and the terms of the contract, there remain outstanding disputes as to material facts, making dismissal at this stage inappropriate. The defendant of course, has the ability to raise any such arguments in his defense at trial. The motion to dismiss is DENIED.
Although raised in a slightly different posture than the Motion to Enforce Contract and Dismiss (dkt. no. 334), Hann's underlying argument in his Motion for Dismissal with Prejudice is the same. Consequently, the Court's analysis with respect to the Motion to Enforce the Contract is equally applicable to this motion and so this motion is DENIED.
The defendant's motion for appointment of counsel is also DENIED.