Wilbur v. Pierre

Kenton-Walker, Janet, J.

Pursuant to Mass.R.Civ.P. 12(b)(5), the defendant, Donna Pierre, M.D. (“Dr. Pierre”), moves the court to dismiss the complaint filed against her by the plaintiff, Janice A. Wilbur (“Wilbur”). Dr. Pierre argues this court (Curran, J.) improperly permitted Wilbur to complete service of process by publication when Wilbur represented to this court that after a diligent search, she could not find Dr. Pierre in any manner allowing her to comply with Mass.R.Civ.P. 4(d).

The court concludes a motion to dismiss is not the proper vehicle by which to challenge the propriety of this court’s Order of Notice by Publication, dated April 6, 2009 (“Order”). If Dr. Pierre wishes to challenge the Order by asserting it was improperly issued because Wilbur did not comply with Mass.R.Civ.P. 4(d)(1) before seeking service by publication, filing a motion for reconsideration is the appropriate method by which to ask this court to review the Order.

As the record before the court reflects, Wilbur properly served process upon Dr. Pierre in accordance with the Order.¹ Accordingly, it is hereby ORDERED that Dr. Pierre’s motion to dismiss for insufficient service of process be DENIED.

1 Wilbur’s failure to submit to this court proof of service in the form of the three published newspaper notices does not render the service invalid. See Mass.R.Civ.P. 4(f) (“Failure to make proof of service does not affect the validity of the service”).