Morrisseau v. Estate of Fayette

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-493


Dennis Morrisseau                            Supreme Court

       v.                                    On Appeal from
                                             Chittenden Superior Court
Estate of Frederick Fayette
                                             November Term, 1988


Alden T. Bryan, J.

Samuelson, Portnow & Little, P.C., Burlington, for plaintiff-appellant

Paul, Frank & Collins, Inc., Burlington, for defendants-appellees


PRESENT:  Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.) and Springer,
          D.J. (Ret.), Specially Assigned


     DOOLEY, J.   Plaintiff brought this action for declaratory judgment and
specific performance of a contract to purchase Juniper Island in Lake
Champlain, a property held by a group of eleven heirs as tenants in common.
The trial court dismissed his complaint on two grounds.  The first is
procedural:  plaintiff failed to comply with the time limits of V.R.C.P. 3
in serving process on several named defendants in the lawsuit, and never
requested an enlargement of time under V.R.C.P. 6(b).  The second derives
from the liquidated damages provision of the contract, which limits the
buyer's remedy upon the seller's breach to a return of his deposit.
Plaintiff appeals.  We affirm on the procedural ground and do not reach the
remedies question.
     Plaintiff concedes that he failed to comply with V.R.C.P. 3, but
contends that no prejudice to any defendants was occasioned by the delay.
Rule 3, however, does not require a showing of prejudice before dismissal.
It says:  "If service is not timely made . . ., the action may be dismissed
on motion . . . ."  See Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 660
(D. Md. 1986) (under similar Fed. R. Civ. P. 4(j)), "the absence of
prejudice is not of aid to a faulty plaintiff who presents no justifiable
reason for his lack of diligent and timely conformance" with the rule).
Here, it is undisputed that the complaint was not served to certain
defendants within the thirty days then required by the rule; the trial court
on August 20, 1987, noted that certain defendants had not yet been served,
although the action commenced some two years earlier, on September 9, 1985.
It is also undisputed that plaintiff did not request an extension of time
under V.R.C.P. 6(b).  The trial court thus concluded:

          Reading Rules 3 and 6(b) together, as well as taking
          into account the Reporter's Notes which specify that
          Rule 3 requires service within 30 days and places the
          burden on the plaintiff who legitimately needs more time
          to seek enlargement, the Court concludes that plaintiff
          has not fulfilled Rule 3's requirements.  Indeed, the
          Court specially notes the long time periods which have
          elapsed in the case.  Theresa Wall has not yet been
          served.  Diane Fayette was served 477 days after the
          complaint was filed; Linda Fayette was served 390 days
          after the complaint was filed; Peter Fayette was served
          375 days after the complaint was filed; and, James
          Fayette was served 338 days after the complaint was
          filed.  The Court finds this inexcusable and hereby
          grants defendants' motions to dismiss.
We find no abuse of discretion in the court's ruling.  Because the parties
not properly served under Rule 3 were indispensable for the relief
requested, dismissal of the complaint was appropriate. (FN1)
     Affirmed.



                                         FOR THE COURT:



                                        ___________________________________
                                        Associate Justice



FN1.   The complaint also sought damages against the commissioners of the
estate.  That count, however, is not pursued or even mentioned in plain-
tiff's briefs to this Court, and accordingly is waived.  Nor was it pursued
in the many papers filed with the trial court subsequent to the complaint.
The defendant heirs argued, in a memorandum filed on March 2, 1987 in
support of the motions to dismiss for insufficient process, that dismissal
of the three unserved defendants required dismissal of the entire action
since those defendants are indispensable parties.  Plaintiff did not respond
to this argument (contending only that the three heirs had actual notice and
were not prejudiced by the defects in process); specifically, he makes no
claim that the cause of action against the commissioners might survive
should the specific performance and declaratory judgment counts be
dismissed.