Attorney Matthew Lindberg obtained dismissal of claims against a contractor in a case arising out of serious personal injuries sustained in a construction site accident. The claims were dismissed pursuant to Mass.R.Civ.P. 12(b)(5) for insufficient service of process. The contractor, who worked as a “d/b/a” and was one of several defendants, was served at his last and usual place of abode. However, an investigator retained to make contact with the contractor failed to locate him. Attorney Lindberg argued that the return of service filed by the plaintiff served only as prima facie evidence of service. That prima facie evidence was rebutted by an affidavit from the investigator, attesting to his efforts to locate the contractor. The investigator concluded that the contractor had not lived at the property for years. The Superior Court allowed the motion to dismiss. Subsequent efforts to revive the claims against the contractor, including by filing a new action, were unsuccessful.
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