The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RYAN OLSZTA, )
)
Plaintiff, )
)
)
v. ) Civil No. 3:24-cv-12281-KAR
)
)
TOWN OF BRIMFIELD, SUZANNE )
COLLINS, HAROLD LEAMING, )
MICHAEL MILLER, GEORGE ADAMS, )
and CHIEF WILLIAM J. BEADRY, )
)
Defendants. )
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS
(Dkt. No. 10)
ROBERTSON, U.S.M.J.
Ryan Olszta (“Plaintiff”) brings this case against the Town of Brimfield (“the Town” or
Brimfield”), Brimfield Police Chief William J. Beaudry (“Chief Beaudry”), Select Board Chair
Suzanne Collins (“Collins”), Select Board members Harold Leaming (“Leaming”), Michael
Miller (“Miller”), and George Adams (“Adams”) (collectively, “Defendants”). Plaintiff, a
former police officer in the Town, is suing various of the Defendants for unlawful termination of
his employment on the basis of his sexual orientation in violation of Mass. Gen. Laws ch. 151B,
§ 4 (Count I against the Town, Collins, and Leaming), retaliation in violation of the
Whistleblower Protection Act, Mass. Gen. Laws ch. 149, § 185 (Count II against the Town),
failure to notify him of negative additions to his personnel file in violation of Mass. Gen. Laws
ch. 149, § 52C (Count III against the Town), harassment (Count IV against Collins), violation of
his rights under the Second Amendment to the United States Constitution (Count V against
Brimfield and Chief Beaudry), defamation (Count VI against all Defendants), and intentional and
negligent infliction of emotional distress (Counts VII and VIII against all Defendants).
Defendants move to dismiss Plaintiff’s complaint in its entirety (Dkt. No. 10). The parties have
consented to this court’s jurisdiction (Dkt. No. 17). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
For the following reasons, Defendants’ motion to dismiss is GRANTED WITHOUT
PREJUDICE based on insufficient service of process.
I. BACKGROUND
A. Allegations in the Complaint
When Plaintiff began working as a Brimfield police officer in December 2015, he was
the only openly gay officer on the force (Dkt. No. 1-2 at ¶¶ 10-11). In June 2018, Plaintiff was
elected to the Town’s Select Board (id. at ¶ 12). Shortly after his election, fellow Board member
Leaming told Plaintiff to keep his sexual orientation to himself, and later Board Chair Collins
expressed to Plaintiff her disapproval of his missing meetings to visit his then-boyfriend in
Germany (id. at ¶¶ 15-16). Plaintiff advised then-Chief of Police Charles Kuss (“Kuss”) about
the remarks Collins had made about his homosexuality (id. at ¶ 17). Plaintiff also filed a
complaint with Kuss against then-Lieutenant Beaudry for telling Plaintiff that if he wanted to
keep busy, he “could go to the courthouse and suck off the guards there” (id. at ¶ 33).
At some point during his tenure as an officer, Plaintiff became aware of corruption
allegations related to the Brimfield Flea Market, which brings in the bulk of the Town’s income
and tax revenue (id. at ¶¶ 18-19). Plaintiff began to investigate a possible corruption scheme
between the Flea Market and the Select Board (id. at ¶¶ 18, 20). Collins and Board member
Kelly are both Flea Market owners and sit on the Select Board subcommittee dedicated to the
Flea Market (id. at ¶ 21). Miller, the Town Moderator, is married to an owner of the Green
Acres Flea Market (id. at ¶ 22). Kelly and fellow Board member Leaming were both members
of the Flea Market Promotor’s Association, which organization endorsed them in their
campaigns for membership on the Select Board (id. at ¶ 23).
During a 2021 Town Hall meeting, when Plaintiff referenced a “good ole boys club, ”
Collins did not take kindly to the comment (id. at ¶ 24). She told Plaintiff to “shut [his] fucking
mouth,” and that he did not know what he was talking about (id. at ¶ 24). At around the same
time, Miller filed a complaint against Plaintiff during an open meeting, with Collins’ knowledge
and acquiescence and having coordinated with Collins, Kelly, and Leaming in doing so (id. at ¶¶
25-26). Adams, in coordination with Collins, presented further allegations against Plaintiff
during another open meeting (id. at ¶ 27). The complaint prompted an investigation, but the
allegations were unsubstantiated (id. at ¶ 29). Nevertheless, Miller stated on the Brimfield
Community page that he stood by the accusations (id. at ¶ 30). In addition, the complaints were
placed in Plaintiff’s personnel file without him receiving lawful notice (id. at ¶ 28). The local
media obtained the file and published articles about the complaints, which characterized Plaintiff
as an irresponsible and dangerous officer (id. at ¶ 30).
By June 2021, Plaintiff was still traveling to Germany to visit his then-boyfriend (id. at ¶
31). Plaintiff was able to travel despite COVID restrictions based on an “exception” for
unmarried partners (id.). When Collins learned of this exception, she told Plaintiff, “oh, there’s
always an exception for you” (id.). Plaintiff believes that the “you” to whom Collins was
referring was the gay community and that the remark was intended to be derogatory (id. at ¶ 31).
Plaintiff filed a complaint with Kuss against Collins because of her comments (id. at ¶ 32).
Plaintiff opted not to seek re-election to the Select Board in June 2021 (id. at ¶ 34). At
the end of the month, the Select Board voted against both a three-year and a one-year
reappointment of Plaintiff as a patrolman for the Brimfield Police Department because of
Miller’s unsubstantiated allegations against him (id. at ¶¶ 35-36, 39-40). Despite a de-facto
procedure whereby the Select Board traditionally voted on all the nominees for the Police
Department as a group, as it had done for at least 18 years, the Select Board voted on each
candidate individually (id. at ¶¶ 36, 43). Leaming, Collins, and Kelly all voted against Plaintiff’s
reappointment notwithstanding the opinion of Town Counsel that choosing not to reappoint him
amounted to termination of his employment and could be seen as retaliatory (id. at ¶¶ 38, 41).
Leaming told a citizen attendee at the meeting that the Select Board did not need cause to reject
Plaintiff’s reappointment (id. at ¶ 42). After Plaintiff was stripped of his position as a police
officer, additional complaints were filed against him with the Select Board and placed into his
personnel file, again without any notice being provided to him (id. at ¶¶ 49-50). Plaintiff
requested a Special Hearing pertaining to the termination of his employment pursuant to the
Town’s by-laws, but one has never been held (id. at ¶ 53). Plaintiff has been unable to obtain
other employment as a police officer since Brimfield declined to reappoint him (id. at ¶¶51-52).
Following the termination of Plaintiff’s employment, Leaming has referred to Plaintiff as
a “faggot” and “fudgepacker;” he has used the same pejorative language about Plaintiff’s cousin,
who is also gay (id. at ¶ 47). Collins, for her part, reached out to a Town citizen in her capacity
as Board Chair and disparaged Plaintiff while urging the woman to sue Plaintiff for defamation
(id. at ¶ 55). Collins also disparaged Plaintiff publicly in her place of business, the Apple Barn
Café, going so far as to remove patrons who expressed support for Plaintiff from the premises
(id. at ¶ 57).
Collins applied for a Harassment Prevention Order against Plaintiff pursuant to Mass.
Gen. Laws ch. 258E based on three alleged instances where Plaintiff publicly “gave her the
middle finger” in September and October of 2023 (id. at ¶¶ 58-60). Chief Beaudry took the
unprecedented step of escorting Collins to Palmer District Court to file her affidavit and seek the
Harassment Prevention Order (id. at ¶¶ 61, 69). Plaintiff was served with the order on November
2, 2023, but the case was summarily dismissed on November 15, 2023, when the Palmer District
Court determined that Plaintiff’s behavior was protected by the First Amendment (id. at ¶¶ 58,
66). Before the dismissal, Collins emailed Plaintiff at his place of business, characterizing
Plaintiff as a “corrupt and dangerous person,” who has “harassed and stalked community
members,” and “should not be around the public never mind children” (id. at ¶ 64). Collins also
brought the Harassment Prevention Order to the media’s attention (id. at ¶ 72).
In addition to helping Collins with filing for the Harassment Prevention Order, Chief
Beaudry reached out to Plaintiff’s estranged uncle for an affidavit supporting an Extreme Risk
Prevention Order (“ERPO”) to restrict Plaintiff’s access to firearms. Beaudry knew Plaintiff’s
estranged uncle had sexually assaulted Plaintiff as a minor (id. at ¶¶ 62-63). Plaintiff’s License
to Carry (“LTC”) was suspended because of the ERPO, and Plaintiff had to surrender his
firearms (id. at ¶ 67). According to Chief Beaudry, he reached out to Plaintiff’s uncle on
instructions from the Select Board and, even though the Harassment Prevention Order and ERPO
have been dismissed, he has refused to reinstate Plaintiff’s LTC, allegedly based on the wishes of
the Board (id. at ¶¶ 68, 70).
B. Procedural History
Plaintiff commenced this action in Massachusetts Superior Court – Hampden County on
April 16, 2024 (Dkt. Nos. 1-2; 9 at 1, 4). On July 18, 2024, ninety-three days after filing his
complaint, Plaintiff filed a request for six summonses along with a motion to extend service by
thirty days, which the court granted the following day (Dkt. No. 9 at 4, 16-18). Plaintiff served
all Defendants save Leaming on August 20, 2024 (Dkt. No. 9 at 6-15). Defendants filed a notice
of removal to this court on September 5, 2024 (Dkt. No. 1). Plaintiff did not effect service on
Leaming until September 18, 2024 (Dkt. No. 27-1).
II. DISCUSSION
Defendants move for dismissal based on Plaintiff’s failure to timely serve his complaint.
This is an issue with which this court is very familiar. See Crossetti v. Cargill, Inc., No. 3:18-cv-
30002-KAR, 2018 WL 2770130, at *2 (D. Mass. June 8, 2018), aff’d, 924 F.3d 1 (1st Cir. 2019).
“‘Before a court may exercise personal jurisdiction over a defendant, the procedural
requirements of service of process must be satisfied.’” Luxottica Grp., S.p.A. v. Lee, 552 F.
Supp. 3d 98, 101 (D. Mass. 2021) (quoting Cichocki v. Mass. Bay Cmty. Coll., 174 F. Supp. 3d
572, 575 (D. Mass. 2016)). A court can dismiss a complaint for insufficient service of process.
Fed. R. Civ. P. 12(b)(5). “Where … ‘the sufficiency of process is challenged under Rule
12(b)(5), ... [the] plaintiff bears “the burden of proving proper service.”’” Cichocki, 174 F.
Supp. 3d at 575 (quoting Aly v. Mohegan Council-Boy Scouts of Am., Civil Action No. 08-
40099-FDS, 2009 WL 3299951, at *1 (D. Mass. Apr. 20, 2009)). “‘[S]tate law governs the
service of process prior to removal to the district court.” Crossetti, 2018 WL 2770130, at *2
(quoting Osborne v. Sandoz Nutrition Corp., No. 95-1278, 1995 WL 597215, at *1 (1st Cir. Oct.
6, 1995) (per curiam) (unpublished)). See also Fed. R. Civ. P. 81(c)(1) (providing that the
Federal Rules of Civil Procedure apply to civil actions after removal from state court).
Accordingly, this court must determine the sufficiency of service of process prior to removal
according to the rules the state court would have applied.
Massachusetts Rule of Civil Procedure 4(j) requires that a plaintiff serve a summons and
copy of the complaint upon a defendant within 90 days of filing and mandates dismissal without
prejudice for failure to meet the deadline absent a showing of “good cause.” Crossetti, 2018 WL
2770130, at *2 (citing Mass. R. Civ. P. 4(j)). Plaintiff filed his complaint on April 16, 2024,
giving him until July 15, 2024 to effect service. While Plaintiff missed this deadline, he filed a
motion for a 30-day enlargement on July 18, 2024, which the Superior Court granted on July 19,
2024. The parties agree that the new deadline for service following the order granting the
extension was August 18, 2024, which was a Sunday. Thus, pursuant to Mass. R. Civ. P. 6(a),
August 18, 2024, would not be included, and the deadline would run until the end of the next
day, August 19, 2024. There is no dispute that Plaintiff did not meet this deadline.
Plaintiff acknowledges that in these circumstances he must demonstrate “good cause” to
justify the tardy service. “Good cause is ‘a stringent standard requiring diligen[t]’ albeit
unsuccessful effort to complete service within the period prescribed by the rule.” Crossetti, 924
F.3d at 3 (quoting Comm’r of Rev. v. Carrigan, 698 N.E.2d 23, 26 (Mass. App. Ct. 1998)). Here,
counsel for Plaintiff failed to request summonses during the initial 90-day service period, let the
90 days expire before seeking an extension of the deadline, and then failed to request a further
extension as the period was, once again, expiring. Thus, the lack of timely service appears to be
owing to inadvertence of counsel, and “[h]alf-hearted efforts by and inadvertence of counsel do
not constitute good cause.” Crossetti, 2018 WL 2770130, at *4 (citing Carrigan, 698 N.E.2d at
27). Indeed, “‘[t]he rule’s “entire focus was to force plaintiffs’ (more realistically their lawyers’)
diligence in order to preserve causes of action against limitation problems.”’” Id. (quoting
Carrigan, 698 N.E.2d at 26).
Plaintiff tries to pin the fault for untimely service on the Hampden County Sheriff,
representing that he mailed out service to the Sheriff’s Office on August 5, 2024, two weeks
before the Sheriff completed service. Plaintiff offers no explanation for waiting over two weeks
following the granting of the extension to provide the Sheriff with the summonses and copies of
the complaint. Regardless, “the failure of [a] constable to complete service d[oes] not constitute
‘good cause’ for noncompliance with rule 4(j).” Shuman v. The Stanley Works, 571 N.E.2d 633,
635 (Mass. App. Ct. 1991) (citing Braxton v. United States, 817 F.2d 238, 242 (3d Cir. 1987)).
Plaintiff also incorrectly cites to Carrigan to argue that “th[e] rule is not meant to be
strictly construed due to the liberal time extension allowances often granted” (Dkt. No. 19 at
2). Carrigan says the exact opposite, explaining that the rule is meant to be strictly construed,
but that “its execution is not unduly harsh due to the liberal extension of time allowances
permitted under Rule 6(b).’” Carrigan, 698 N.E.2d at 312 (citing Burks v. Griffith, 100 F.R.D.
491, 492 (N.D.N.Y. 1984). Here, Plaintiff easily could have sought a second extension. His
failure to do so does not render the strict enforcement of the time limit for service “unduly
harsh.”
The court offers one final note in closing. Defendants represent that if Plaintiff’s claims
are dismissed, it should be with prejudice insofar as the statute of limitations will have run. The
question of the statute of limitations is not currently before the court. However, even if
Defendants are correct, “the expiration of the statute of limitations, ‘does not prevent the
operation of rule 4(j)….” Crossetti, 2018 WL 2770130, at *4 (quoting Hull v. Attleboro Savs.
Bank, 596 N.E.2d 358, 363 (Mass. App. Ct. 1992)). “That said, Rule 4(j) provides for
mandatory dismissal without prejudice and that is the relief the court will afford.” Id. at *5
(citing Maniscalco v. Kenworthy, No. 03-P-626, 2004 WL 2185422, at *3 (Mass. App. Ct. Sept.
28, 2004)).
III. CONCLUSION
For the above-stated reasons, Defendants’ motion to dismiss (Dkt. No. 10) is GRANTED
WITHOUT PREJUDICE. The case may be closed on the court’s docket.
It is so ordered.
Dated: July 11 , 2025 /s/ Katherine A. Robertson_____
KATHERINE A. ROBERTSON
United States Magistrate Judge