Ripa v. Perfetti (In re Perfetti)

In Re: Regina Perfetti, Debtor.

Adam Ripa and Kim Ripa, Plaintiffs v. Regina Perfetti, Defendant.

Case No.: 18-30798-ABA

Adv. No.: 19-1182-ABA

UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY

February 25, 2020

NOT FOR PUBLICATION

Chapter: 7

Judge: Andrew B. Altenburg, Jr.

MEMORANDUM DECISION

Before the court is defendant Regina Perfetti's latest Motion for me to reconsider my order denying her Third Motion to Dismiss Adversary Proceeding (Doc. No. 58), Ms. Perfetti's Fourth Motion to Dismiss the Adversary Proceeding (Doc. No. 61), the Ripas' Responses to both (Doc. Nos. 63, 67), Ms. Perfetti's Response to the Ripas' Response to her Motion to Reconsider (Doc. No. 70), the Ripas' allegation that Ms. Perfetti failed to serve them with her Third Motion to Dismiss and her Motion to Strike Issuance of Amended Alias Summons (Doc. No. 57), and Ms. Perfetti's Response to that allegation (Doc. No. 63).

For the reasons that follow, the court will deny Ms. Perfetti's Motion to Reconsider and Motion to Dismiss.

JURISDICTION AND VENUE

This matter before the court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) and (O), and the court has jurisdiction pursuant to 28 U.S.C. § 1334, 28 U.S.C. § 157(a) and the Standing Order of Reference issued by the United States District Court for the District of New Jersey on July 23, 1984, as amended on September 18, 2012, referring all bankruptcy cases to the bankruptcy court. The following constitutes this court's findings of fact and conclusions of law as required by Federal Rule of Bankruptcy Procedure 7052.

PROCEDURAL HISTORY/ FINDINGS OF FACT

Pursuant to Fed. R. Bankr. P. 7052, the court issues the following findings of fact and conclusions of law.

The Ripas filed an adversary proceeding and the Clerk's Office issued a Summons on April 22, 2019. Doc. Nos. 1, 2 (the "First Summons"). Ms. Perfetti then filed a Motion to Dismiss, arguing that the complaint was "so vague and ambiguous that Defendant cannot reasonably prepare a proper response as Plaintiff is in fact attempt use [sic] (un-numbered paragraphs) supposed events that are irrelevant to the complaint," and that the Ripas failed to properly serve her. Doc. No. 4-1 (the "First Motion to Dismiss"). Regarding the service issue, the Ripas responded that Ms. Perfetti had refused to give them her new address. Doc. No. 5. In a response filed to the Ripas' response, Ms. Perfetti repeated that service was deficient and then argued that in their complaint the Ripas had not pled reliance on the alleged misrepresentation, for example "running their own credit report to verify and to follow the direction in the credit report provided, as not all screening companies are alike, nor are they all accurate, and, thus, perform due diligence. . . ." Doc. No. 10. Though the court found the complaint quite clear, it ordered the Ripas to file and serve an amended complaint together, with numbered paragraphs, with a new summons. Doc. No. 12.

The Ripas filed an Amended Complaint on July 8, 2019, Doc. No. 14, and a new summons was issued by the Clerk's Office that same day. Doc. No. 15 (the "Second Summons"). Ms. Perfetti filed a Motion to Dismiss on July 22, 2019, arguing that the Amended Complaint failed to state a cause of action and that it failed to allege fraud with particularity. Doc. No. 17 (the "Second Motion to Dismiss"). She also alleged that she also sought dismissal "for improper service of summons and complaint" but did not explain how service was deficient. Doc. No. 17-1, p. 1. On August 14, 2019, the court denied this Second Motion to Dismiss, stating that it was "at a loss here to ascertain how Ms. Perfetti cannot understand the Ripas' complaint against her." Doc. No. 21, p. 3, Regarding the failure to properly serve, the court stated: "Ms. Perfetti also contends that the Ripas did not serve her properly, but did not explain how, therefore the court will not consider that allegation." Id., p. 2. At that time then, the adversary proceeding could have promptly progressed to discovery and mediation and/or trial in due course.

Instead, on August 21, 2019, Ms. Perfetti filed her first Motion to Reconsider ("First Motion to Reconsider"). Doc. No. 25. She denied filing the Second Motion to Dismiss in bad faith, and submitted a copy of the summons that she received with the Amended Complaint that showed that rather than serve her with the summons issued by the court, the Ripas apparently filled out a summons form themselves and served it, without the signature of the Clerk of the Bankruptcy Court. See Doc. No. 25-8. The court denied the Motion to Reconsider despite that this fact was not newly discovered by Ms. Perfetti, as required in a motion for reconsideration, Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999), and the court ordered the Ripas to obtain a new court-issued summons from the Clerk's Office and serve it upon Ms. Perfetti. Doc. No. 32.

The Ripas had a new alias summons (the "Third Summons") issued on October 16, 2019 and served it and the Amended Complaint on Ms. Perfetti. Doc. No. 39 (Certificate of Service). Unfortunately, this summons, prepared by the Clerk's Office, incorrectly captioned the proceedingas "Adam Ripa v. Kim Ripa." Doc. No. 36. On November 7, 2019, Ms. Perfetti filed another Motion to Dismiss on this basis. Doc. No. 40 (the "Third Motion to Dismiss"). On November 8, 2019, the Clerk's Office re-issued the Alias Summons with the parties corrected, citing "Clerk's Office Error," Doc. No. 42, prompting Ms. Perfetti to file a Motion to Strike Issuance of this Alias Summons on November 12, 2019. Doc. No. 44. On December 11, 2019, the court issued a Memorandum Decision and Order denying the Third Motion to Dismiss and the Motion to Strike Issuance of this Alias Summons. Doc. Nos. 51, 52.

That brings the court to the latest motions and responses. On December 23, 2019, the court received a letter from Mr. Ripa alleging that he and Mrs. Ripa never received from Ms. Perfetti the Third Motion to Dismiss, the Motion to Strike Issuance of this Alias Summons, or the Notices of Hearing for either. Doc. No. 57. Ms. Perfetti had filed Certificates of Service for all of these documents. See Doc. Nos. 47-50.

On December 26, 2019, Ms. Perfetti filed a Motion to Reconsider the court's denial of her Third Motion to Dismiss. Doc. No. 58 (the "Second Motion to Reconsider). On December 30, 2019, she filed a Motion to Dismiss. Doc. No. 61 (the "Fourth Motion to Dismiss"). On December 30, 2019, she filed a response to the Ripas' allegation that she did not serve the Third Motion to Dismiss, the Motion to Strike Issuance of this Alias Summons, or the Notices of Hearing. Doc. No. 63.

On January 6, 2020, Mr. Ripa filed a Response to the Second Motion to Reconsider and the Fourth Motion to Dismiss. Doc. No. 67.¹ Ms. Perfetti filed a Response to that Response on January 8, 2020. Doc. No. 70.

Both parties contacted the court ex parte to express a preference that the court rule on the papers. The court denied this request and ultimately set a hearing for February 4, 2020 at 10:00 a.m. At that hearing, the court expressed its frustration with the excessive motion practice and the failures to properly serve by the parties. It asked the parties to consider mediation of their dispute at no expense. While Mr, Ripa agreed to this, Ms. Perfetti asked for some days to think it over. By February 7, 2020, Ms. Perfetti contacted the court to decline the mediation offer, asking instead that the court consider her motions. The matter is now ripe for determination.

DISCUSSION

In making these findings, the court has considered the arguments of the parties, the credibility and the plausibility of their testimony, and the totality of the evidentiary record.

I: Motion to Reconsider Third Motion to Dismiss

Ms. Perfetti has been apprised of the standard applied to a motion for reconsideration, that is: "'(1) an intervening change in controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct clear error of law or prevent manifest injustice.'" Scotto-DiClemente, 463 B.R. [308,] 310 [(Bankr. D.N.J. 2012)] (citing Walzer v. Muriel Siebert & Co., Inc., 2010 WL 4366197, at *8, 2010 U.S. Dist. LEXIS 115245, at *24 (D.N.J. 2010) (citing North River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995)))." Doc. No. 31, p. 2. Despite that, in this latest motion, Ms. Perfetti did not suggest that there was any change in controlling law but mentions facts previously unsubmitted to the court and complains that the court committed clear error in denying her Third Motion to Dismiss. See Doc. Nos. 52, 53). None of these "new" facts were previously unavailable. Most of the motion concerns previously available facts about service of the First Summons, an issue not relevant to denial of the Third Motion to Dismiss for failure to serve the Third Summons.

Ms. Perfetti also argues that Federal Rule of Civil Procedure 4(m) mandates dismissal if a defendant is not served within 90 days after the complaint is filed, and alleges that this court stated "to the contrary." Doc. No. 58-1, ¶ 6. However, the court actually stated in its Memorandum Decision the following:

[W]hen a plaintiff fails to serve a defendant within 90 days after the complaint is filed, instead of dismissing the action, the court must extend the period for service on motion of the plaintiff if the plaintiff shows good cause for the failure, or may extend the period for service on its own discretion. Fed. R. Civ. P. 4(m); Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995).

Doc. No. 51, p. 9 (emphasis supplied). Thus, the court did not commit clear error in failing to dismiss the complaint but instead applied its discretion to give the Ripas another opportunity to effect service.

Ms. Perfetti further argues that the Ripas should have attempted to serve the Amended Alias Summons despite the pendency of...