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)

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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. 1 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court. 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 2 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 3

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