Farb v. Perez-Riera
Farb v. Perez-Riera
Opinion of the Court
OPINION AND ORDER
Presently before the court is co-defendant Jose Perez Riera’s (“Perez Riera”) motion to quash summons and to dismiss the complaint for insufficient service of process (Docket No. 79), Plaintiffs opposition (Docket No. 81), and Perez Riera’s reply to the opposition (Docket No. 82-1). Upon reviewing the filings and the applicable law, Perez Riera’s motion to quash summons is GRANTED, but his motion to dismiss the complaint is DENIED.
I. Standard of Review
Rule 12(b)(5) allows a defendant to seek dismissal for a plaintiffs failure to sufficiently serve the defendant with process. Fed.R.Civ.P. 12(b)(5). The requirements for serving process on an individual within a judicial district of the United States are delineated in Rule 4(e). Fed.R.CivP. 4(e). This Rule allows a plaintiff to serve a defendant pursuant to the laws of the state in which the defendant is located or pursuant to federal law. See Fed.R.Civ.P. 4(e)(1 & 2). A district court may dismiss a complaint for a plaintiffs failure to effectively serve a defendant with process. See Blair v. City of
II. Factual and Procedural Background
On September 17, 2012, Plaintiff filed the instant complaint with the court. (Docket No. 1.) The following day, the Clerk of Court issued summonses to the defendants, including Perez Riera. (Docket No. 3.) Plaintiff filed an amended complaint on November 7, 2011. (Docket No. 5.) On February 14, 2013, Plaintiff filed a motion to serve Perez Riera by publication, which Plaintiff supplemented on February 19, 2013. (Docket Nos. 21, 23.) On March 18, 2013, the court granted Plaintiffs motion for service by publication. (Docket No. 59.) The order instructed Plaintiff to “serve defendant Jose R. Perez Riera by edict and publication conforming with Rule 4.6 of the Puerto Rico Rules of Civil Procedure, and file a notice of service.” (Id.) The court ordered service by publication be made by April 18, 2013. (Id.) On April 5, 2013, Plaintiff filed a notice of service by publication (Docket No. 75) and on April 11, 2013, Plaintiff filed a motion for default entry as to Perez Riera (Docket No. 76).
III. Discussion
Perez Riera claims Plaintiff improperly attempted to serve process upon him by publication. In particular, Perez Riera argues that the summons published in the newspaper did not comply with Rule 4.5(b)
Rule 4(e) of the Federal Rules of Civil Procedure provides that service may be accomplished by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). In Puerto Rico, a plaintiff may serve a defendant through publication if specific criteria are met. See P.R. Laws Ann. tit. 32, app. III. R. 4.5. Rule 4.5(b) lists ten pieces of information the summons must contain including: (1) a title (Service by Edict); (2) type of action, and; (3) the term within which the person served shall answer the complaint.
Plaintiff fails to address Perez Riera’s assertion that Plaintiff did not include a title and the nature of the complaint in the summons as required by Puerto Rico law. He also fails to prove the Clerk of Court issued summons for publication.
Plaintiff did not properly serve summons within the extension of time granted by the court. Rule 4(m) of the Federal Rules of Civil Procedure governs the timing of service of process. It provides in relevant part:
If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed.R.Civ.P. 4(m). In deciding whether or not to extend the prescribed time period for service, the court examines whether Plaintiff establishes “good cause” for the untimely service. If Plaintiff establishes “good cause,” the court must extend the time for service of process. United States v. Tobins, 483 F.Supp.2d 68, 77 (D.Mass. 2007). If the plaintiff does not show “good cause,” the court has discretion to dismiss without prejudice or to extend the time period. Id. (quoting Henderson v. United States, 517 U.S. 654, 662, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (“[Cjourts have been accorded discretion to enlarge the 120-day period even if there is no good cause shown.”)) (internal quotation marks omitted) (citations omitted).
Thus, the court is permitted to grant an extension of time absent good cause. The court finds no evidence that Plaintiff acted in bad faith and, instead of dismissing the case, exercises its discretion and grants Plaintiff an additional term of ten days to correctly serve Perez Riera through publication.
IV. Conclusion
For the foregoing reasons, Perez Riera’s motion to quash is GRANTED, but his motion to dismiss the complaint is DENIED. (Docket No. 79.) Instead, the court grants Plaintiff an additional term of ten days, until May 25, 2013, to correctly serve Perez Riera through publication. Additionally, Perez Riera shall, on or before June 15, 2013, file a certified translation of Rule 4.6 for the record.
SO ORDERED.
. The Puerto Rico Rules of Civil Procedure were amended in 2009. See P.R. Laws Ann. tit. 32, app. V. Puerto Rico Rule of Civil Procedure 4.6 (“Rule 4.6”) provides for service by publication. See P.R. Laws Ann. tit. 32, app. V.R. 4.6. However, as of the day of this opinion, there is no English translation for the 2009 Rules. The undersigned, being fully bilingual, notes the pertinent part of Rule 4.6 corresponds to Rule 4.5 of the 1979 Puerto Rico Rules of Civil Procedure. See P.R. Laws Ann. tit. 32, app. III, Rule 4.5. Accordingly, for purposes of this motion, the court will cite the English translation of Rule 4.5. Notwithstanding, Perez Riera shall, on or before June 15, 2013, file a certified translation of Rule 4.6 for the record.
. Rule 4 of the Federal Rules of Civil Procedure provides:
Issuance: On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons—or a copy of a summons that is addressed to multiple defendants—must be issued for each defendant to be served.
Fed.R.Civ.P. 4(b).
Reference
- Full Case Name
- Thomas F. FARB v. Jose R. PEREZ-RIERA
- Status
- Published