Civil practice – Service of process

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Where a commercial tenant has filed an appeal challenging the denial of its motion for relief from judgment and motion to dismiss the landlord’s summary process complaint, both motions should have been allowed because the landlord did not fulfill its service obligations pursuant to Rule 4(d)(2) of the Massachusetts Rules of Civil Procedure.

“The tenant in a commercial eviction now appeals the denial of its motion for relief from judgment and motion to dismiss the summary process complaint. For the following reasons, the denials of the motions are hereby vacated, and orders allowing each shall enter. …

“The court erred by finding that the landlord fulfilled its service obligations pursuant to Mass. R. Civ. P. 4(d)(2). When the defendant is a corporation, the rule plainly requires delivery ‘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.’ … The rule further provides, ‘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.’ …

“Applying this rule, we observe that the landlord was obligated to direct a deputy sheriff to deliver a copy of the summons and complaint to the tenant’s principal place of business in Marshfield. Even if the sheriff were unable to properly serve the summons and complaint at this address because the tenant had not updated the landlord as to its new address, the rule provides a remedy: ‘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.’ … As the parties were in routine communication via e-mail, it is obvious that plaintiff’s counsel could have easily directed the deputy sheriff to a new address.

“The plaintiff’s contention that proper service can be effectuated by taping the complaint to a vacant building and sending a certified letter to an undeliverable address is plainly erroneous. Given the landlord’s failure to comply with Rule 4(d)(2), the trial court lacked personal jurisdiction over the defendant and the default judgment that entered was therefore void. Konan v. Carroll, 37 Mass. App. Ct. 225, 229 (1994). The tenant’s motion to vacate the void judgment was one for relief pursuant to Mass. R. Civ. P 60(b)(4). Contrary to the plaintiff’s assertion, a Rule 60(b)(4) motion is not addressed to the trial court’s discretion. Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527 (1997). The tenant was entitled to relief from the default judgment as a matter of law.

“Given this ruling, the defendant’s motion to dismiss the complaint for lack of proper service likewise should have been granted. Mass. R. Civ. P. 4(j) provides: ‘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.’ In the circumstances presented, the plaintiff cannot show good cause for the failure to serve, and the motion to dismiss should have been allowed. …

“For the foregoing reasons, the trial court’s denials of the defendant’s motions are vacated. Orders allowing the motion for relief from judgment and the motion to dismiss are hereby entered.”

888 Eastern Avenue, LLC v. LLAWM-Malden LLC (Lawyers Weekly No. 13-056-25) (4 pages) (Prince, J.) (Northern District) Order entered by Martin, J., in Malden District Court. Natalie R. Megaloudis and Mustafa Sidki for the plaintiff; Louis A. Cassis for the defendant (App. Div. No. 24-ADSP-101NO) (Oct. 29, 2025).

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