Sideridraulic System SPA et al v. Briese Schiffahrts GMBH & Co KG
Order granting 16 Amended MOTION for Extension of Time for International Service filed by BBC Chartering & Logistic GmbH & Co. K.G., Briese Schiffahrts GMBH & Co KG. BBC and Briese are ordered to file status reports on or before the fourth Tuesday of each month beginning in May. Status Report due by 5/24/2011. Signed by Chief Judge William H. Steele on 4/25/2011. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SIDERIDRAULIC SYSTEM SPA, et al.,
BRIESE SCHIFFAHRTS GmbH
& CO. KG,
BBC CHARTERING & LOGISTIC
GmbH & CO. KG, et al.,
SIDERIDRAULIC SYSTEM SPA, et al.,
CIVIL ACTION 10-0715-WS-M
This matter comes before the Court on the Amended Motion for Extension of
International Service Period (doc. 16) filed by BBC Chartering & Logistic GmbH & Co. KG
(“BBC”) and Briese Schiffahrts GmbH & CO. KG (“Briese”). At issue is BBC and Briese’s
failure to effectuate service of process on Sideridraulic System S.p.A. (“Sideridraulic”) despite
filing the Complaint against it on December 27, 2010. The 120-day period generally prescribed
by Rule 4(m), Fed.R.Civ.P., for service of process is set to expire on April 26, 2011.
Movants’ position (which they failed to articulate in their predecessor Motion for
Extension) is that Rule 4(m) is inapplicable to service of process in a foreign country.1 It is true
This assertion is somewhat incongruous given that BBC and Briese styled their
filing as a “Motion for Extension of International Service Period,” and admitted in their
predecessor filing of April 19, 2011 that the deadline “to effect international service of their
Complaint upon [Sideridraulic] is April 26, 2011.” (See doc. 13, ¶ 11.) If Rule 4(m) did not
apply, then the April 26 deadline would not exist, and there would be no deadline to extend.
Thus, movants’ requests for extension are confusing when juxtaposed against their present
assertion that Rule 4(m) has no application here.
that Rule 4(m) provides that that subsection “does not apply to service in a foreign country under
Rule 4(f).” But that exemption does not afford a plaintiff the luxury of serving a foreign
defendant at its leisure. To the contrary, federal courts have indicated that Rule 4(m) may indeed
apply, and the foreign-service exemption may be inapplicable, if the plaintiff fails to attempt to
serve the defendant in a foreign country within that 120-day period. See, e.g., USHA (India),
Ltd. v. Honeywell Int’l, Inc., 421 F.3d 129, 134 (2nd Cir. 2005) (declaring that Rule 4(f)
exception to Rule 4(m) deadline “does not apply if, as here, the plaintiff did not attempt to serve
the defendant in the foreign country”); Nylok Corp. v. Fastener World, Inc., 396 F.3d 805, 807
(7th Cir. 2005) (“If, for example, a plaintiff made no attempt to begin the process of foreign
service within 120 days, it might be proper for a court to dismiss the claim.”); Allstate Ins. Co. v.
Funai Corp., 249 F.R.D. 157, 162 (M.D. Pa. 2008) (finding that “the exemption from the 120day time limit for service in a foreign country does not apply where – as here – the plaintiff has
not made a reasonable, good faith effort to attempt service abroad during the 120-day period”).2
Be that as it may, the Amended Motion shows that BBC and Briese have in fact
undertaken a reasonable, good faith effort to attempt international service on Sideridraulic during
the initial 120-day period. On that basis, the Amended Motion for Extension of International
Service Period (doc. 16) is granted. In lieu of setting a hard and fast deadline for what may be a
nebulous and time-consuming process beyond the movants’ direct control, it is ordered that
BBC and Briese file monthly status reports, on or before the fourth Tuesday of each month,
beginning in May 2011, documenting the present status of their efforts to perfect service of
process on Sideridraulic. Given that Sideridraulic is already a party joined in this consolidated
litigation, however, all parties are strongly encouraged to work together to resolve these
threshold service of process issues in a manner that minimizes waste and delay and allows this
action to move forward promptly, to the advantage of all.
DONE and ORDERED this 25th day of April, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
As one commentator observed, “there appears to be a growing trend to impose a
120-day time limit to initiate service” in the international service context. 1 Ved P. Nanda &
David K. Pansius, Litigation of International Disputes in U.S. Courts § 2:19.
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