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Seventh Deadline's No Charm, Lawyer Finds

Five days after the deadline to serve the summons and complaint in a medical-malpractice action he'd filed, Massachusetts lawyer H. Paul Carroll filed an "emergency" ex parte motion for more time. The motion explained that his failure to serve the complaint was due to a mistake in calendaring and his recent engagement of an expert to help him amend his initial skeletal filing. The court granted him an extension of a month. When that deadline came, the lawyer filed a second motion for more time, explaining that he'd been the victim of an assault and was unable to practice for two weeks. Another extension granted, another deadline missed, another motion for more time.

This went on through a series of six motions -- the fifth cited "inclement weather" as the reason for the failure to serve -- and six extensions. After the sixth motion, the judge set a deadline of March 5, 2005, to serve the complaint. The deadline came and went without service and without further requests for an extension. On May 23, 2005, having heard nothing further from plaintiff's counsel, the court dismissed the case.

Thirteen months later, the lawyer went back to court and filed an ex parte motion to vacate the dismissal. Surprisingly, the motion judge allowed it. The defendants then filed a motion for reconsideration, which the judge denied. The defendants appealed. In a decision issued this week, the Massachusetts Appeals Court said, in so many words, Enough is enough.

[C]ounsel's actions were neither diligent nor reasonable. The plaintiff's counsel brought six motions to enlarge the time for service; several of these were themselves untimely. Moreover, the fact that the docket reflects that the plaintiff's counsel never filed the amended complaint until July 21, 2006, makes the reason for his first two requests -- that he needed to meet with an expert to file a more detailed complaint -- irrelevant and leads us to an inference that this reason was a pretext. The plaintiff's counsel never provided any explanation of his efforts to serve the complaint and summons with the exception of the attempt on March 4, 2005, which betrays the motion's fitness for consideration.

The case is Kennedy v. Beth Israel Deaconess Medical Center.

Posted by Robert J. Ambrogi on January 8, 2009 at 02:28 PM | Permalink | Comments (2)


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