IN THE MATTER,
OGECHI EKE V. DCF - BOSTON JUVENILE COURT
Docket No. CP10B0179 AND
OGECHI EKE V. DCF - SUFFOLK COUNTY SUPERIOR COURT DOCKET NO. 12-4516
https://www.facebook.com/photo.php?fbid=4347241836689&set=a.4347241356677.2158843.1156846871&type=1&relevant_count=5
DEC. 19, 2012 THE
PRESIDING HONOURABLE JUSTICE ELIZABETH FAHEY OF SUFFOLK COUNTY SUPERIOR
COURT FAILED THE TEST OF THE MASS RULES
OF CIVIL PROCEDURE 4 (PROCESS) - JUDGE FAHEY SAID SUMMONS CAN NOT BE SERVED BY
U.S. CERTIFIED MAIL AND ALSO CAN NOT BE SERVED ON THE DEFENDANT'S ATTORNEY,
REPRESENTATIVE, AND AGENT. READ THE RULE BELOW. BECAUSE OF SITTING ON BENCH
WITHOUT FULL KNOWLEDGE OF THE OPERATING COURT RULES, JUDGE FAHEY USED HER POWER
AND IGNORANCE TO ORDER REPEAT SERVICE AND FORCED MS. OGECHI EKE TO PAY
ADDITIONAL $100.00 EXCLUDING RUNS CAR GAS. BEFORE SITTING FOR THE COURT
BUSINESS OF THE DAY, JUDGES MUST MASTER THE LAWS TOUCHING A CASE. THE DAILY
ABUSES DIRECTED AGAINST THE FEMALE 8-YEAR OLD SUBJECT CHILD BY AN ANGLICAN
CHURCH REVEREND WHO TOOK CUSTODY OF THIS BEAUTIFUL/SMART/TALENTED/GIFTED 8-YEAR
CHILD THROUGH DCF IN APRIL 2011 WOULD HAVE BEEN STOPPED ON DECEMBER 19,2012 BY
JUDGE FAHEY BUT THE ABUSES CONTINUE AND JUDGE FAHEY ADJOURNED THE CASE TO DEC.
24, 2012. SAME VEIN ACROSS THE UNITED STATES BEAUTIFUL/ SMART/TALENTED/GIFTED
BLACK CHILDREN UNDER THE CUSTODY OF THE DCF ARE ABUSED. JUDGES, COURTS,
LEADERS, LAWMAKERS, GOVERNMENTS AND THEIR AGENCIES ARE WARE OF THESE CRUELTIES WITHOUT ACTION TAKEN TO
STOP THE ABUSERS. PARTICULARLY, THE MASS HON. SECRETARY OF JUSTICE AND ATTORNEY
GENERAL AND OTHERS INCLUDING JUDGE FAHEY ARE AWARE OF THESE ABUSES BUT THEY DID
NOTHING.
Massachusetts Civil
Procedure Rule 4: Process
[Disclaimer]
(a) Summons: Issuance.
Upon commencing the action the plaintiff or his attorney shall deliver a copy
of the complaint and a summons for service to the sheriff, deputy sheriff, or
special sheriff; any other person duly authorized by law; a person specifically
appointed to serve them; or as otherwise provided in subdivision (c) of this
rule. Upon request of the plaintiff separate or additional summons shall issue
against any defendant. The summons may be procured in blank from the clerk, and
shall be filled in by the plaintiff or the plaintiff's attorney in accordance
with Rule 4(b).
(b) Same: Form. The
summons shall bear the signature or facsimile signature of the clerk; be under
the seal of the court; be in the name of the Commonwealth of Massachusetts;
bear teste of the first justice of the court to which it shall be returnable who
is not a party; contain the name of the court and the names of the parties; be
directed to the defendant; state the name and address of the plaintiff's
attorney, if any, otherwise the plaintiff's address, and the time within which
these rules require the defendant to appear and defend; and shall notify him
that in case of his failure to do so judgment by default may be rendered
against him for the relief demanded in the complaint.
(c) By Whom Served.
Except as otherwise permitted by paragraph (h) of this rule, service of all
process shall be made by a sheriff, by his deputy, or by a special sheriff; by
any other person duly authorized by law; by some person specially appointed by
the court for that purpose; or in the case of service of process outside the Commonwealth,
by an individual permitted to make service of process under the law of this
Commonwealth or under the law of the place in which the service is to be made,
or who is designated by a court of this Commonwealth. A subpoena may be served
as provided in Rule 45. Notwithstanding the provisions of this paragraph (c),
wherever in these rules service is permitted to be made by certified or
registered mail, the mailing may be accomplished by the party or his attorney.
(d) Summons: Personal
Service Within the Commonwealth. The summons and a copy of the complaint shall
be served together. The plaintiff shall furnish the person making service with
such copies as are necessary. Service shall be made as follows:
(1) Upon an individual
by delivering a copy of the summons and of the complaint to him personally; or
by leaving copies thereof at his last and usual place of abode; or by
delivering a copy of the summons and of the complaint to an agent authorized by
appointment or by statute to receive service of process, provided that any
further notice required by such statute be given. If the person authorized to
serve process makes return that after diligent search he can find neither the
defendant, nor defendant's last and usual abode, nor any agent upon whom service
may be made in compliance with this subsection, the court may on application of
the plaintiff issue an order of notice in the manner and form prescribed by
law.
(2) Upon a domestic
corporation (public or private), a foreign corporation subject to suit within
the Commonwealth, or an unincorporated association subject to suit within the
Commonwealth under a common name: by delivering a copy of the summons and of
the complaint to an officer, to a managing or general agent, or to the person
in charge of the business at the principal place of business thereof within the
Commonwealth, if any; or by delivering such copies to any other agent
authorized by appointment or by law to receive service of process, provided
that any further notice required by law be given. If the person authorized to
serve process makes return that after diligent search he can find no person
upon whom service can be made, the court may on application of the plaintiff
issue an order of notice in the manner and form prescribed by law.
(3) Upon the
Commonwealth or any agency thereof by delivering a copy of the summons and of
the complaint to the Boston office of the Attorney General of the Commonwealth,
and, in the case of any agency, to its office or to its chairman or one of its
members or its secretary or clerk. Service hereunder may be effected by mailing
such copies to the Attorney General and to the agency by certified or
registered mail.
(4) Upon a county, city,
town or other political subdivision of the Commonwealth subject to suit, by
delivering a copy of the summons and of the complaint to the treasurer or the
clerk thereof; or by leaving such copies at the office of the treasurer or the
clerk thereof with the person then in charge thereof; or by mailing such copies
to the treasurer or the clerk thereof by registered or certified mail.
(5) Upon an authority,
board, committee, or similar entity, subject to suit under a common name, by
delivering a copy of thesummons and of the complaint to the chairman or other
chief executive officer; or by leaving such copies at the office of the said
entity with the person then in charge thereof; or by mailing such copies to
such officer by registered or certified mail.
(6) In any action in
which the validity of an order of an officer or agency of the Commonwealth is
in any way brought into question, the party questioning the validity shall
forthwith forward to the Attorney General of the Commonwealth by hand or by
registered or certified mail a brief statement indicating the order questioned.
(e) Same: Personal
Service Outside the Commonwealth. When any statute or law of the Commonwealth
authorizes service of process outside the Commonwealth, the service shall be
made by delivering a copy of the summons and of the complaint: (1) in any
appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the
manner prescribed by the law of the place in which the service is made for
service in that place in an action in any of its courts of general
jurisdiction; or (3) by any form of mail addressed to the person to be served
and requiring a signed receipt; or (4) as directed by the appropriate foreign
authority in response to a letter rogatory; or (5) as directed by order of the
court.
(f) Return. The person
serving the process shall make proof of service thereof in writing to the court
promptly and in any event within the time during which the person served must
respond to the process. If service is made by a person other than a sheriff,
deputy sheriff, or special sheriff, he shall make affidavit thereof. Proof of
service outside the Commonwealth may be made by affidavit of the individual who
made the service or in the manner prescribed by the law of the Commonwealth, or
the law of the place in which the service is made for proof of service in an
action in any of its courts of general jurisdiction. When service is made by
mail, proof of service shall include a receipt signed by the addressee or such
other evidence of personal delivery to the addressee as may be satisfactory to
the court. Failure to make proof of service does not affect the validity of the
service.
(g) Amendment. At any
time in its discretion and upon such terms as it deems just, the court may
allow any process or proof of service thereof to be amended unless it clearly
appears that material prejudice would result to the substantial rights of the
party against whom the process is issued.
(h) Certain Actions in
Probate Courts: Service. Notwithstanding any other provision of these rules, in
actions in the Probate Courts in the nature of petitions for instructions or
for the allowance of accounts service may be made in accordance with G.L. c.
215, § 46, in such manner and form as the court may order.
(i) Land Court. In
actions brought in the Land Court, service shall be made by the court where so
provided by statute.
(j) Summons: Time Limit
for Service. If a service of the summons and complaint is not made upon a
defendant within 90 days after the filing of the complaint and the party on
whose behalf such service was required cannot show good cause why such service
was not made within that period, the action shall be dismissed as to that
defendant without prejudice upon the court's own initiative with notice to such
party or upon motion.
Amended February 24,
1975, effective July 1, 1974; December 17, 1975, effective January 1, 1976;
June 2, 1976, effective July 1, 1976; December 13, 1982, effective January 1,
1982; March 29, 1988, effective July 1, 1988.
Reporter's Notes:
(July 1996): With the
merger of the District/Municipal Courts Rules of Civil Procedure into the
Massachusetts Rules of Civil Procedure in 1996, two differences that had
existed between the two sets of rules have been eliminated. Prior to the
merger, the District Court version of Rule 4(f) required proof of service to be
made to the court and to the party; in addition, the District Court version
included constables among those who are not required to make an affidavit of
service. The merged set of rules adopts the version of Rule 4(f) contained in
the Massachusetts Rules of Civil Procedure. Under the merged set of rules,
proof of service in the District Court is required to be made only to the court
and constables are required to make affidavit of service.
It should be noted that
there may be additional requirements in connection with service of process
imposed by statute. See, for example, G.L. c. 223, § 31, which provides that
where service is made at the defendant's last and usual place of abode in
District Court actions, "the officer making service shall forthwith mail
first class a copy of the summons to such last and usual place of abode. The
date of mailing and the address to which the summons was sent shall be set
forth…in the officer's return."
(July 1988): This amendment
sets a 90 day limit after filing for the service of the summons and complaint
upon defendants, unless "good cause" is shown. On April 7, 1986 the
Supreme Judicial Court ordered, inter alia, that: "The time standards set
forth below for the trial, settlement or other disposition of civil cases are
hereby adopted applicable to cases entered in any department of the Trial Court
on or after July 1, 1988: CIVIL CASES OTHER THAN FAMILY LAW CASES, Superior
Court, District Court, and Boston Municipal Court, all jury and non-jury cases
within 24 months after filing." The amendment should aid parties and the
courts in meeting the time standards promulgated by the Supreme Judicial Court.
The amendment is patterned after Fed. R. Civ. P. 4(j), but the Massachusetts
amendment prescribes a 90 day limit, rather than the 120 days in the Federal
Rules, in order to further aid in the timely disposition of cases.
If a party does not
think it will be able to obtain service within the 90 day period, a timely
motion can be made for "cause shown" for an enlargement of time
pursuant to Mass. R. Civ. P. 6(b)(1). Moreover, Mass. R. Civ. P. 4(j) also
permits a party to "show good cause why such service was not made
within" the 90 day period.
(June 1976): Rule
4(d)(3) governs service upon the Commonwealth or one of its agencies (but not
upon a political subdivision, see Rule4(d)(4), or an authority or board (Rule
4(d)(5)). As originally promulgated, the rule made no provision for service
upon the agency directly. Moreover, certain sections of the Administrative
Procedure Act, G.L. Chapter 30A, Sections 14(1), (2), seemed to conflict with
Rule 4(d)(3). In order to rationalize the procedure for appealing from an
administrative decision, legislation has been prepared to amend G.L. Chapter
30A, Sections 14(1) and (2). Essentially, the amendments ensure that in all
appeals of this sort, the appellant will serve the agency – and every party to
the agency proceedings – pursuant to the Massachusetts Rules of Civil Procedure
governing service of process. Thus service upon the agency itself follows Rule
4(d)(3), and service upon the other parties looks to Rule 4(d)(1) (which
remains unamended).
The original Rule
4(d)(3) required service only upon the Attorney General, not upon the agency.
Such service, however, could be effected by certified or registered mail. As
amended, Rule4(d)(3) requires service upon the agency (through either its
chairman, any one of its members, or its secretary or clerk). The rule also
retains the old requirement of service upon the Attorney General, explicitly
directed to the Boston office, to expedite handling. But each service, whether
on the agency or the Attorney General, may be made by certified or registered
mail. Moreover, as the amendment to Rule 4(c) makes explicit, the actual
mailing maybe accomplished by the party or his attorney, rather than any of the
usual process servers.
It is worth realizing
that, although the amendment to Rule 4(d)(3) resulted primarily from a desire
to integrate the Massachusetts Rules of Civil Procedure and the Administrative
Procedure Act, the new, simplified service procedure which the amendment
establishes applies to any action against the Commonwealth or any agency, not
merely to administrative appeals. It does not, of course, alter any substantive
principles concerning administrative review or the Commonwealth's liability to
suit.
Finally, the amendment
to Rule 4(d)(3) does not affect the requirement of Rule 4(d)(6) that, when in
any action to which the Commonwealth is not a party, the validity of an agency
(or other official) order comes into question, the party raising the question
must notify the Attorney General.
(December 1975): The
last sentence of Rule 4(c) makes clear that whenever a statute, like the
so-called long-arm statute, G.L. Chapters 223A, Sections1-3, authorizes service
by certified or registered mail, it is not necessary to enlist the aid of a
process server to do the mailing.
(February 1975): Rule
4(c) has been amended to make clear that process in the types of actions
covered by Rule 4(h) need not be served by any of the individuals enumerated in
Rule 4(c).
Rule 4(h) has been
inserted to correct a serious inconvenience resulting from the apparent
applicability to such Probate Court matters as petitions for instructions and
accounts of Rule 4's general service requirements. If Rule 4, as originally
promulgated, applied to this type of case, the cost of service might frequently
assume excessive proportions. A petition for instructions involving a trust
with numerous beneficiaries could require substantial service charges; an
account in a common trust fund with over a thousand participants would impose
massive expenses.
Prior to July 1, 1974,
it was unquestioned that notice of the pendency of a petition for instructions,
or the presentation for allowance of an account could be – and invariably was –
effected by citation, served in hand or by publication. Moreover, a statute,
G.L. Ch. 215, Sec. 46, authorized the court to direct service to be made by
registered mail, thus permitting appreciable saving in service costs.(Another
statute, G.L. Ch. 4, Sec. 7, equating certified mail with registered mail for
this purpose, permitted an even less expensive procedure.)
As the amendatory
legislation accompanying the Rules, St. 1973, Ch. 1114, repealed neither G.L.
Ch. 215, Sec. 46, nor G.L.Ch. 4, Sec. 7, many probate courts continued to issue
citations in the old form even after July 1, 1974. Others required service in accordance
with Rule 4.
To eliminate the
confusion, and to maximize flexibility in the particular class of actions
affected, Rule 4(h) now explicitly approves both methods of procedure: in any
Probate Court action seeking instructions or the allowance of an account,
service may – but need not – be made by citation. In those rare cases whose
strategy dictates service by an officer, the usual Rule 4 procedure is
available.
Although the change in
Rule 4(c) and the language of Rule 4(h) are both declaratory of existing
practice as to accounts, the Supreme Judicial Court, in the order of February
24, 1975, promulgating the amendments, specifically made the new material
retroactive to July 1, 1974. Thus service between July 1, 1974, and February
24, 1975, was valid so long as it was made either: (1) in accordance with a
citation; or (2) in accordance with Rule 4.
(1973) Rule 4 deals with
process and service. It extensively changes Federal Rule 4 to meet state
conditions and to adopt such existing state law as the "long-arm"
statute, G.L. c. 223A, §§ 1-8. Rule 4(a), unlike Federal Rule 4(a), puts the
onus of delivering process to the server upon the plaintiff or his attorney,
rather than upon the clerk. It explicitly allows the plaintiff or the attorney to
obtain the blank summons form in advance.
Rule 4(c) permits
special court appointment of process servers.
Rule 4(d) somewhat
changes the Massachusetts rule that in actions of tort or contract, not
involving an attachment, the summons need not contain a copy of the
declaration. Under Rule 4(d),the summons does not contain the complaint, but
the two must be served together.
Rule 4(d)(1) allows
process to be "left at [defendant's] last and usual place of abode,"
G.L. c. 223, §31. The Rule makes clear that service on a statutorily authorized
agent may also require the giving of additional notice, and that the plaintiff
must consult the statute and fulfill its requirements. If service in any of the
modes prescribed by Rule 4(d)(1) is impossible, the plaintiff may obtain an
order of notice. See G.L. c. 223, § 34; c. 227, § 7. Divorce proceedings
brought in the Superior Court, c. 208, § 6, although governed by these rules,
are, in matters of notice and service, controlled by G.L. c. 208, § 8.
Rule 4(d)(1)
incorporates prior law covering service upon infants and incompetents. No
statute treats the situation precisely of G.L. c. 206, § 24. At common law, an
infant or an incompetent must be served like any other defendant, and service
must precede the appointment of a guardian ad litem, Taylor v. Lovering, 171
Mass. 303, 306, 50 N.E. 612, 613 (1898); Reynolds v. Remick, 327 Mass. 465,
469, 470-471, 99 N.E.2d 279, 281-282 (1951).
Rule 4(d)(2) governs
service upon a business entity. Basically, it allows the entity to be served
via its officers, manager, or service-receiver designated by appointment or
statute. A domestic entity may, alternatively, be served by leaving the papers
at the principal office with the person in charge of the business. This
somewhat widens prior Massachusetts practice. For an example of the kind of
statutory notice covered by the proviso clause of Rule 4(d)(2), see G.L. c.
181, § 4. The "order-of-notice" provision follows Rule 4(d)(1).
Rule 4(d)(2), unlike the
cognate Federal Rule, does not refer to "partnerships." Because
Massachusetts law so clearly treats partners as individuals for purposes of
suit, Shapira v. Budish, 275 Mass. 120, 126, 175 N.E. 159, 161 (1931), use of
the federal language would work an undesirable change in substantive law.
Rule 4(d)(3), like
Federal Rule 4(d)(4), covers service upon the sovereign or one of its agencies.
Service is complete upon delivery to the Attorney-General's office or upon the
mailing of the papers to him by registered or certified mail.
Rule 4(d)(4) governs
service upon political subdivisions of the Commonwealth subject to suit. It
simplifies the procedure set out in G.L. c. 223, § 37, and applies the
principles of the rest of Rule4 to service of political subdivisions. Rule
4(d)(4) requires the plaintiff to bring the fact of suit to the attention of
the person who is most likely to sound the litigational alarm; but it does not
require him to do more.
Rule 4(d)(5) applies the
principles of Rule 4(d) to service of public entities subject to suit under a
common name.
Rule 4(d)(6) is designed
to ensure that the Attorney General receives prompt notification of any
possible court test (however collateral) of an order of an officer or agency of
the Commonwealth. The Rule seeks to minimize the inconvenience to the public
which results when such test does not come to the Attorney General's attention
until late in the litigation. Rule 4(d)(6) is therefore a mandate of
convenience. Failure to observe it will not vitiate otherwise valid service;
courts should, however, be alert to compel observance of its requirements.
Rule 4(e) controls
out-of-state service. It embodies the procedure set out in the long-arm statute
(G.L. c. 223A, §§ 6-7), which in turn relied heavily upon Federal Rule 4(i) (a
section omitted, therefore, from these rules). Rule 4(e) is largely self-
explanatory and is flexible enough, when read with Rule 4(d)(1) and (2) and
G.L. c. 223, § 37; c. 223A, §§ 1-3, to cover most order-of-notice situations.
See also c. 227, § 7.
Rule 4(f) requires
direct filing by the server. It should be emphasized that any delay by the
process server does not bar the plaintiff. See Peeples v. Ramspacher, 29 F.
Supp. 632, 633 (E.D.S.C.1939).
Rule 4(g) tracks Federal
Rule 4(h) verbatim. It follows the spirit of the Federal Rules, refusing to
allow "technicalities" to obstruct justice. See Rule 15 (covering
amendments to pleadings) and Rule 60 (covering relief from judgments). It will
work no substantial change in Massachusetts practice. See G.L. c. 231, § 51.
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