Peh v. Keliher et al

Filing 24

ORDER granting Defendant Ayer Rajah's 20 Motion to Stay and Extension to Meet Deadlines. Counsel shall update the Court of the status of service of the Complaint within twenty-one days of this Order. Signed by Magistrate Judge R. Stan Baker on 5/25/2017. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

EE MENG PEH,
Plaintiff,

CIVIL ACTION NO.: 2:16-cv-139

v.
TRENT V. KELIHER; KENNETH R.
TEAGLE; and AYER RAJAH
INVESTMENTS, LLC,
Defendants.

ORDER
Presently before the Court are Plaintiff’s Motion for Extension of Time to Effect Service
on Defendants Keliher and Teagle, (doc. 18), and Defendant Ayer Rajah Investments, LLC’s,
Motion to Stay and Extension of Time to Meet All Case Deadlines, (doc. 20). For the reasons
and in the manner set forth below, the Court GRANTS in part Plaintiff’s Extension of Time to
Effect Service and GRANTS Defendant Ayer Rajah’s Motion to Stay and Extension to Meet
Deadlines. Plaintiff and Defendants’ counsel shall update the Court of the status of service of
the Complaint within twenty-one (21) days of this Order.
BACKGROUND
On October 14, 2016, Plaintiff filed his Complaint and alleged Defendants committed
breach of contract, tortious fraud, and gross negligence in the performance of their fiduciary
duties. (Doc. 1.) The Court directed Plaintiff to show cause within fourteen (14) days of its
January 30, 2017, Order as to why Defendants had not been served with the Complaint.
(Doc. 5.) Plaintiff responded that he was able to effect service on Defendant Ayer Rajah on

January 25, 2017, despite having earlier trouble with attempting service on a previous occasion.
As to Defendants Keliher and Teague, both of whom reside in Singapore, Plaintiff states that
Singapore is not a party to the Hague Convention or other treaty with the United States and
requires letters rogatory be sent to its government to begin the lengthy process for service in
Singapore. (Doc. 10.) Thus, Plaintiff maintained these events “constitute a reasonable basis for
noncompliance” with Federal Rule of Civil Procedure 4(m). 1
On February 13, 2017, attorney James Yancey appeared on behalf of all Defendants, and
the Court granted attorney Auden Grumet’s Motion for Leave to Appear Pro Hac Vice on behalf
of Defendants. (Doc. 12.) Defendant Ayer Rajah filed a Special/Limited Appearance and
Answer, through counsel, on March 2, 2017. (Doc. 14.) Defendant Ayer Rajah also filed a
Response in opposition to Plaintiff’s Response to the Court’s January 30, 2017, Order.
(Doc. 16.)
Plaintiff then filed the instant Motion for Extension of Time to Effect Service of the
Complaint on Defendants Keliher and Teague. (Doc. 18.) Defendant Ayer Rajah then filed its
Motion for Stay of Case and Extension of Deadlines. (Doc. 20.) The Court addresses the
parties’ Motions in turn.
DISCUSSION
I.

Plaintiff’s Motion for Extension of Time to Effect Service
In his Motion, Plaintiff seeks to have the time to serve Defendants Keliher and Teagle

extended for twenty-eight (28) days from the date of this Court’s Order.

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Plaintiff moves

Plaintiff attached to his Response to the Court’s Order an email from Defendant Teagle dated
December 9, 2016. This email and attached picture reveal Defendant Teagle received Plaintiff’s
Complaint. (Doc. 10-2.) In addition, before Plaintiff’s counsel prepared the letters rogatory, he received
notification that Defendants retained counsel in this case, pending pro hac vice admission to this District.
(Doc. 10, p. 2.) The Court presumes Plaintiff offers this exhibit and assertion in support of his position he
had a reasonable basis for his failure to comply with Rule 4(m).
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pursuant to Federal Rule of Civil Procedure 6(b)(1) for good cause shown to allow for an
extended period for service. (Doc. 18, p. 1) Plaintiff alleges Defendants Keliher and Teagle
reside in Singapore, and according to the United States Postal Service, it will take at least seven
(7) to twenty-one (21) days for delivery to a process server. In turn, the process servers counsel
contacted in Singapore indicated “that initial attempt at service can be effected in ‘a few days’
after they receive the documents.” (Id.)
Defendant Ayer Rajah asserts that Plaintiff has neither demonstrated good cause for his
noncompliance with the Rules pertaining to service, nor has he shown more than simple
inadvertence or mistake. Additionally, Defendant Ayer Rajah contends Plaintiff has offered no
evidence or cited to any meaningful facts as to why he has failed to serve Defendants Keliher
and Teagle. (Doc. 16, pp. 3–4.)
Federal Rule of Civil Procedure Rule 4(m) mandates that the Court dismiss a complaint
when a plaintiff failed to effect service within 90 days of the filing of the complaint. Fed. R.
Civ. P. 4(m). However, a plaintiff may request an extension of time for service of process upon
the showing of good cause. Id. A plaintiff has the burden of demonstrating the existence of
“good cause” justifying service outside of the deadline. Sanders v. Fluor Daniel, Inc., 151
F.R.D. 138, 139 (M.D. Fla. 1993).

“To demonstrate good cause, the plaintiff must offer

evidence that he (1) has proceeded in good faith; (2) has a reasonable basis for noncompliance[;]
and (3) the basis for the delay was more than simple inadvertence or mistake.” Durgin v. Mon,
659 F. Supp. 2d 1240, 1258 (S.D. Fla. 2009), aff’d, 415 F. App’x 161 (11th Cir. 2011) (citing
Sanders, 151 F.R.D. at 139; Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991); Horenkamp v.
Van Winkle & Co., 402 F.3d 1129, 1130–31 (11th Cir. 2005)).

A court may extend the

deadlines contained in Rule 4 “for good cause” shown “if the party failed to act because of

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excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). In addition, even in the absence of good cause
“Rule 4(m) grants discretion to the district court to extend the time for service of process[.]”
Horenkamp, 402 F.3d at 1132.
Here, Plaintiff “certifies” that he “proceeded in good faith to effect service of process on
Defendants.”

(Doc. 10, p. 1.)

Specifically, Plaintiff asserts he hired a process server in

Michigan to serve Defendant Ayer Rajah at the address provided for Defendant Ayer Rajah’s
agent, but an unidentified person at that address initially denied knowledge of this Defendant at
that location. On January 25, 2017, service of process was effected on Defendant Ayer Rajah.
(Id.) Plaintiff contends he learned that Singapore, the country in which Defendants Keliher and
Teagle reside, requires letters rogatory for service of summonses in that country for what would
be “a lengthy process for service[.]” (Id. at p. 2.)
While Plaintiff certainly could have done more to serve Defendants Keliher and Teagle in
a timely manner, he has not been derelict or otherwise eschewed his responsibility in prosecuting
his claims. According to counsel, he attempted to timely serve Defendant Ayer Rajah, and he
has taken steps to serve Defendants Keliher and Teagle. Thus, he has shown good cause for an
extension of time for him to effectuate service in this case. Even if Plaintiff had not shown good
cause to justify an extension of time as to Defendants Keliher and Teagle, the Court exercises its
discretion to allow for additional time to serve those Defendants to prevent piecemeal litigation
and to serve the ends of judicial efficiency. 2
Accordingly, the Court GRANTS in part Plaintiff’s Motion for Extension of Time to
serve Defendants. Plaintiff shall have a period of twenty-one (21) days, up to and including

2

The Court’s extension should by no means be seen as an endorsement of counsel’s delayed attempts to
serve Defendants. In the future, the Court expects that counsel will make every effort to diligently adhere
to the deadlines of this Court and of the Federal Rules of Civil Procedure.
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June 15, 2017, to serve all Defendants with his Complaint. 3 At the end of this twenty-one day
period, Plaintiff and Defendants’ counsel MUST file a joint report updating the Court as to the
status of service upon Defendants. 4 It is the Court’s expectation that counsel will work together
to resolve issues of service so the parties and the Court can move forward to address the merits
of Plaintiff’s claims.
II.

Defendant Ayer Rajah’s Motion for Stay of Case and Extension of Deadlines
Defendant Ayer Rajah asserts service on it was untimely and that Defendants Keliher and

Teagle have yet to be served with Plaintiff’s Complaint. Given these circumstances, Defendant
Ayer Rajah maintains that to undertake all tasks and obligations pursuant to the applicable
Federal Rules of Civil Procedure and this Court’s Local Rules would create unnecessary expense
and burden to the parties. Thus, Defendant Ayer Rajah moves under Federal Rule of Civil
Procedure 6(b) to extend the deadlines in this case and/or to stay proceedings. (Doc. 20, p. 2.)
Defendant Ayer Rajah requests that this action be treated as if no Defendant has been properly
served until such time as all Defendants have been properly served. (Id. at p. 3.)
Defendant has established good cause for its requested stay and extension of deadlines. It
would be inefficient to proceed with this litigation while the service of Defendants remains
uncertain. Accordingly, the Court GRANTS Defendant Ayer Rajah’s Motion and STAYS the
proceedings in this case, including all deadlines (other than Plaintiff’s deadline to serve
3

Plaintiff states that he already served Defendant Ayer Rajah on January 25, 2017, and he has filed an
Affidavit of Service. (Doc. 10-1.) This service was thirteen (13) days after the ninety (90) day deadline
of Rule 4(m). Indeed, in its Answer, Defendant Ayer Rajah contends that the Complaint should be
dismissed for failure to timely serve process. (Doc. 13, p. 2.) However, if Defendant Ayer Rajah was
properly served on January 25, 2017, that service is now timely, as it was prior to the extended deadline
of June 15, 2017, set forth in this Order. Of course, if Defendant Ayer Rajah contends that it was not
served properly on January 25, 2017, on some ground other than timeliness, that issue is not presently
before the Court, and the Court offers no opinion on that argument.
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Additionally, Plaintiff is reminded of his obligation to file proof of service pursuant to Federal Rule of
Civil Procedure 4(l).
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Defendants) until further Order of the Court. After the parties report to the Court on Plaintiff’s
efforts to serve Defendants, the Court may lift this stay and provide the parties with applicable
deadlines they must satisfy. However, until the stay is lifted, the parties are under no obligation
to answer the Complaint, submit responsive pleadings, conduct a Rule 26(f) conference, or make
any other filings in this case.
CONCLUSION
Based on the foregoing, the Court GRANTS in part Plaintiff’s Extension of Time to
Effect Service and GRANTS Defendant Ayer Rajah’s Motion to Stay and Extension to Meet
Deadlines. Counsel shall update the Court of the status of service of the Complaint within
twenty-one (21) days of this Order.
SO ORDERED, this 25th day of May, 2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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