Kozma Investmentos, LTDA v. Duda et al

Filing 49

ORDER granting 47 Plaintiff's Response to the Court's Order Requiring Service on the Dudas On or Before November 13, 2017 and Motion for Extension of Time. Plaintiff shall have up to and including December 18, 2017 to serve process on the Dudas. Signed by Magistrate Judge Carol Mirando on 11/16/2017. (KBR)

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.
ORDER
This matter comes before the Court upon review of Plaintiff’s Response to the
Court’s Order Requiring Service on the Dudas On or Before November 13, 2017 and
Motion for Extension of Time (Doc. 47) filed on November 13, 2017.
On June 5, 2017 this case was removed from the Twentieth Judicial Circuit
Court in and for Collier County, Florida to this Court. Doc. 1. Plaintiff’s amended
complaint alleges that Defendants fraudulently transferred assets in order to avoid
an arbitration award. Doc. 33 ¶ 1. On September 6, 2017 the Court issued an Order
to Show Cause when Plaintiff failed to serve the Summons and Complaint in
accordance with Rule 4(m) of the Federal Rules of Civil Procedure.

Doc. 40.

Plaintiffs replied the same day, notifying the Court that Defendants Esdon Pereira
Duda and Natalina Sacchi Duda (collectively, “the Dudas”) reside in Brazil, and thus,
the deadlines for service in Rule 4(m) are inapplicable. Doc. 41 ¶ 5. Plaintiff stated
that it anticipated service would be completed within 30 days. Id. ¶ 7. Based on

Plaintiff’s response, the Court issued an Order taking no further action on the Court’s
Order to Show Cause (Doc. 40). Doc. 42.
When Plaintiff did not serve the Dudas with process by the expiration of the
thirty days, the Court issued another Order to Show Cause. Doc. 46. In its Order,
the Court acknowledged that the time limits for service of process set forth in Rule
4(m) of the Federal Rules of Civil Procedure do not apply to service on a party in a
foreign country. Doc. 46 at 2. Nonetheless, the Court reminded Plaintiff that due
diligence is required and gave Plaintiff until November 13, 2017 to serve process on
the Dudas. Id. at 2-3. The Court further stated that Plaintiff would be required to
show diligent efforts towards service in any request for extension. Id. at 3.
Since that time, Plaintiff has diligently attempted to serve process on the
Dudas. See generally, Doc. 47. Plaintiff’s Motion for Extension indicates that it has
attempted to serve process on the Dudas no less than nine times. See Doc. 47 at 1112. Each time, the doorman at the Dudas’ apartment building has indicated that
the Dudas were not at the apartment.

Id.

Accordingly, Plaintiff requests an

extension of time to serve process on the Dudas, or in the alternative, an order
requiring Defendants’ counsel to accept service on behalf of the Dudas. Doc. 47 at 3.
Because the Court finds that Plaintiff has made diligent efforts to serve the
Dudas with process, the Court will grant Plaintiff an additional thirty days in which
to serve process on the Dudas, or to seek an additional extension. The Court will
deny without prejudice Plaintiff’s request for the Court to issue an Order requiring
defense counsel to accept process of service on behalf of the Dudas. Should Plaintiff

-2-

be unsuccessful in serving Plaintiff within the thirty day extension, it may renew its
request and provide the Court with a memorandum of law discussing the Court’s
authority to issue such an order under The Hague Convention and/or the Brazilian
Code of Civil Procedure. See Fed. R. Civ. Pro. 4(f) (authorizing service of process
outside of the United States “by any internationally agreed means of service that is
reasonably calculated to give notice, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial Documents,” or “as
prescribed by the foreign country's law for service in that country in an action in its
courts of general jurisdiction.”).
ACCORDINGLY, it is hereby
ORDERED:
Plaintiff’s Response to the Court’s Order Requiring Service on the Dudas On
or Before November 13, 2017 and Motion for Extension of Time (Doc. 47) is
GRANTED. Plaintiff shall have up to and including December 18, 2017 to serve
process on the Dudas.
DONE and ORDERED in Fort Myers, Florida on this 16th day of November,
2017.

Copies:
Counsel of record

-3-