Kozma Investmentos, LTDA v. Duda et al

Filing 46

ORDER. Plaintiff shall have up to and including November 13, 2017 to serve Defendants Edson Pereira and Natalina Sacchi Duda. Failure to do so could result in this Court dismissing Plaintiff's claims against the Dudas. Signed by Judge Sheri Polster Chappell on 10/31/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KOZMA INVESTMENTOS, LTDA, a
foreign corporation
Plaintiff,
v.

Case No: 2:17-cv-306-FtM-99CM

EDSON PEREIRA DUDA,
NATALINA SACCHI DUDA and
GEBY INVESTMENTS, LLC,
Defendants.
/
ORDER1
This matter comes before the Court on review of the file. Specifically, the Court
addresses service issues with Defendants Edson Pereira and Natalina Sacchi Duda, who
purportedly reside in Brazil (the “foreign Defendants” or “Dudas”). In response to the
Court’s September 6, 2017 Order to Show Cause as to why the foreign Defendants had
not yet been served (Doc. 40), Plaintiff responded that the 90-day time period set forth in
Federal Rule of Civil Procedure 4(m) did not apply to service in a foreign country, which
is governed by Federal Rule of Civil Procedure 4(f). Thus, the Court noted that it would
take no further action on the Order to Show Cause, directing Plaintiff to serve the foreign
Defendants within the time period allowed by the Federal Rule of Civil Procedure. (Doc.

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42).

In its Response, filed on September 6, 2017, Plaintiff stated that it expected that

service on the Dudas would be accomplished in the next 30 days. (Doc. 41, ¶ 7). To
date, no return of service has been filed; therefore, the Court finds that active judicial
management of the deadline to serve the Dudas would be best.
Although Rule 4(m)’s time limit for service of process does not apply to service in
a foreign country, the Eleventh Circuit has noted that the time period for service under
Rule 4(f) is not unlimited. See Harris v. Orange S.A., 636 F. App’x 476, 485 (11th Cir.
2015).

In Harris, the court recognized that most courts confronted with the timeliness of

foreign service have applied a “flexible due diligence standard” to determine whether
delay should be excused. Id. “We thus join the majority of circuits to have considered
the issue in holding that a plaintiff's complaint may be dismissed upon a showing that she
failed to exercise diligence in attempting to effectuate service on a foreign defendant.” Id.
at 485-86.
Here, Plaintiff filed its Complaint on May 8, 2017, and shortly thereafter attempted
to locate the Dudas. (Doc. 13, Doc. 14). Unable to do so, it requested leave to serve the
Dudas by publication. (Doc. 29). That request was denied as moot because Defendant
Geby Investments, LLC agreed to provide the Dudas’ address in Brazil. (Doc. 30). Since
that time, Plaintiff states that it has forwarded the appropriate service documents so that
service may be completed at the Brazilian address. (Doc. 41, ¶ 8). Therefore, based
upon the information currently before the Court it cannot say that Plaintiff has thus far
showed a lack of diligence in attempting to serve the Dudas. That being said, Plaintiff
has not updated the Court since its last filing when it indicated that service could be

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accomplished in 30 days. Therefore, the Court will impose a deadline for service. Any
request for an extension must set forth diligent efforts towards service.
Accordingly, it is now
ORDERED:
Plaintiff shall have up to and including November 13, 2017 to serve Defendants
Edson Pereira and Natalina Sacchi Duda. Failure to do so could result in this Court
dismissing Plaintiff’s claims against the Dudas.
DONE and ORDERED in Fort Myers, Florida this 31st day of October, 2017.

Copies: All Parties of Record

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