MGS MFG Group Inc v. Supermax Corporation de Mexico SA de CV
ORDER signed by Judge J P Stadtmueller on 2/23/10 that plaintiff complete service of process on the defendant by 5/1/10 or the plaintiff's case will be dismissed without prejudice. (cc: all counsel)(nm)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ M G S MFG GROUP INC., P l a i n t if f , v. S U P E R M A X CORPORATION DE MEXICO SA DE CV, D e fe n d a n t. ____________________________________________ Case No. 09-CV-174
O n February 17, 2010, this court ordered the plaintiff, MGS Mfg Group Inc. ("M G S " ), to, within twenty days of the order, provide the court with good cause for th e failure to timely serve the defendant with a summons and complaint. (Docket # 4 ). MGS did not need twenty days to respond to the court's order, however, as the c o u r t received a declaration from MGS's attorney, Matthew R. Jelenchick ("J e le n c h ic k "), on February 18, 2010, explaining why the plaintiff has not yet served th e defendant. Specifically, Attorney Jelenchick informed the court that MGS has b e e n diligently working with authorities in both the United States and Mexico to try to serve the defendant pursuant to Fed. R. Civ. P. 4(f). The court appreciates M G S 's efforts and understands that the process of serving a foreign defendant can b e quite time consuming. The Federal Rules of Civil Procedure implicitly recognizes tha t fact, excluding "service in a foreign country" from the contours of Fed. R. Civ. P . 4(m), which generally requires that a defendant be served within 120 days of the filin g of the complaint. See Fed. R. Civ. P. 4(m) ("This subdivision (m) does not
a p p ly to service in a foreign country under Rule 4(f) or 4(j)(1).") However, while the 1 2 0 -d a y rule does not apply when serving a party in a foreign country, the plaintiff m u s t still act diligently and promptly in effectuating service, and this court can d is m is s the case without prejudice if service in a foreign country is not pursued in a d ilig e n t fashion. 4B Charles Alan W rig h t and Arthur R. Miller, Federal Practice and P ro c e d u re § 1137 (3d ed. 2002). Thus far, the plaintiff has been diligent in attempting to serve the defendant. T h e affidavit submitted by Attorney Jelenchick informs the court that on December 4 , 2009, the plaintiff submitted the necessary paperwork with officials in the United S tate s to serve the defendant. (Decl. ¶ 9). Based on a previous attempt to serve th e defendant, Attorney Jelenchick anticipates hearing a response from the proper a u th o ritie s regarding the "results of the current efforts" to serve the defendant by the e n d of February 2010. (Decl. ¶ 7). The plaintiff has also expressed a willingness to e xp lo re alternate avenues to serve the defendant if its current efforts fail. (Decl. ¶ 11). Because the plaintiff has thus far made a good faith effort to serve the d e fe n d a n t in accordance with Rule 4(f), the court finds that the plaintiff has complied w ith the directives of this court's February 17, 2010 order. However, to ensure that th e litigation does not linger any more than necessary, the court sets a deadline of M a y 1, 2010, by which the plaintiff must complete service of process. If the plaintiff d o e s not complete service of process by May 1, 2010, the plaintiff's case will be d is m is s e d without prejudice and without further notice.
A c c o rd in g ly, IT IS ORDERED that plaintiff complete service of process on the defendant b y May 1, 2010, or the plaintiff's case will be dismissed without prejudice. Dated at Milwaukee, W is c o n s in , this 23rd day of February, 2010. BY THE COURT:
J .P . Stadtmueller U .S . District Judge