The Lawletter Vol 37 No 9
As any plaintiff's attorney will tell you, even the best case can meet an early demise if service of process is not properly effected on the defendant. A recent unpublished decision from the U.S. Court of Appeals for the First Circuit—of some interest because it was authored by Retired U.S. Supreme Court Associate Justice David H. Souter—illustrates the need to do one's homework on proper service, particularly when the defendant resides outside the country. The case also demonstrates the power of the court to dismiss for dilatory practices, even when there is no deadline for service of process.
In Feliz v. MacNeill, Nos. 10-1549, 11-1308, 2012 WL 3590807 (1st Cir. Aug. 22, 2012) (not selected for publication), the plaintiff estate commenced a medical malpractice and wrongful death suit against three physicians, including Dr. Brian MacNeill, by filing the complaint in a Massachusetts trial court on January 29, 2009. Under the Massachusetts rules, the plaintiff had 90 days to obtain service. On the 90th day, April 30, 2009, the plaintiff both successfully moved for a 90-day extension of time to serve the complaint and improperly attempted to serve the complaint by leaving it with an assistant to the general counsel of the medical center where Dr. MacNeill formerly worked. While under no obligation to do so, Dr. MacNeill's lawyers informed the plaintiff in early June that Dr. MacNeill was a permanent resident of Ireland. Ten days later, the plaintiff improperly attempted to serve Dr. MacNeill in Ireland by certified mail. The extended period for service expired on July 29, 2009, and on August 10, 2009, Dr. MacNeill moved to dismiss for lack of service. Only after Dr. MacNeill had moved to dismiss did the plaintiff hire the services of an international process service company, APS, to make service on Dr. MacNeill in Ireland. Shortly after hiring APS and one month after the expiration of the extended time to obtain service, the plaintiff moved for a second 90-day extension, which the court granted. Two months later, the United States, as codefendant, removed the case to the U.S. District Court for the District of Massachusetts. One month after removal, the second 90-day extension granted by the Massachusetts trial court expired. One month after expiration of the second extension, Dr. MacNeill again moved to dismiss for lack of service. The plaintiff, who had not sought a third extension from the federal court, opposed the motion, citing difficulties with establishing APS's agency to the satisfaction of Irish authorities. The federal district court denied Dr. MacNeill's motion without prejudice and gave the plaintiff an additional 45 days (in addition to the 47 days that had already passed after the expiration of the second extension) to make service. At the end of the 45-day extension, the plaintiff moved for another 90-day extension, and Dr. MacNeill renewed his motion to dismiss. The district court denied the motion for an extension and granted the motion to dismiss with prejudice. The district court denied a subsequently filed motion to vacate the order of dismissal and entered final judgment for Dr. MacNeill. Two months later, the plaintiff filed another motion to vacate on the basis that APS, through a local Irish authority, had served Dr. MacNeill on May 5, 2010. The district court denied the motion for lack of jurisdiction, since the matter was already pending in the First Circuit Court of Appeals.
Using words like "dilatory," "lackadaisical," and "sluggish" to describe the attempts of the plaintiff's counsel to make service on Dr. MacNeill, the First Circuit affirmed the decision of the district court. The court noted that while the Massachusetts rule requiring service within 90 days of filing the complaint did not apply once the case was removed to federal court, the case had been pending in state court for 280 days at the time of removal, with no real effort to make service. The court also observed that although the 120-day time limit for making service set forth in Federal Rule of Civil Procedure 4(m) specifically does not apply to service in a foreign country, it is within the discretion of the court to dismiss for failure to serve abroad when a plaintiff is dilatory. As examples of the plaintiff's unexcused delay, the court cited the plaintiff's failure to attempt service for the first 90 days after filing the complaint, the entire time permitted under the Massachusetts rules; the plaintiff's attempt to serve Dr. MacNeill by leaving the complaint with a legal assistant of the medical center; the plaintiff's attempt to serve Dr. MacNeill in Ireland by certified mail; the two-month delay in contacting APS after Dr. MacNeill's attorneys advised the plaintiff of his permanent residence in Ireland; the failure to seek additional extensions of time to make service until prior extensions had expired; a 19-day delay in seeking an order from the federal district court after APS advised the plaintiff that the Irish authorities needed an order appointing APS as a special process server; and the 97-day delay in notifying the district court that service had taken place 461 days after the plaintiff had filed the original complaint. In spite of the difficulties posed by service outside the country, Justice Souter put these facts in context, stating:
[I]t is telling that once APS had its credentials in hand, on February 4, 2010, it took only 90 days to get approval from the Irish authorities and to serve process on Dr. MacNeill. If she had attempted service with any diligence, Feliz probably could have served MacNeill within 120 days of filing her complaint, within the period of only one extension of time for good cause under the applicable state rule, and well outside the zone of danger of dismissal under Federal Rule 4.
Id. at *5.The Feliz case is a primer in "how not to do it." While certainly no reader of this lawletter would commit all of the errors noted by Justice Souter in the First Circuit's opinion, the decision is a reminder of the importance of addressing unusual issues regarding service of process at the outset of the case rather than at its unnecessary end.