Premier Capital, LLC v. TCS Idaho, LLC et al

Filing 12

MEMORANDUM DECISION AND ORDER NOW THEREFORE IT IS HEREBY ORDERED that Plaintiffs Motion to Retain Case and Extend Time for Filing Litigation Plan and Scheduling Conference (Dkt. 8 ) is DENIED and Defendant Alfredo Miguel Afifs Motion to Dismiss (Dkt. 9 ) is GRANTED as stated herein. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PREMIER CAPITAL LIMITED
LIABILITY COMPANY, A Delaware
limited liability company,
Plaintiff,

Case No. 1:16-cv-00234-EJL
MEMORANDUM DECISION AND
ORDER

v.
TCS IDAHO, LLC, a Delaware limited
liability company; JEAN-PIERRE A.
BOESPFLUG, an individual; and
ALFREDO MIGUEL AFIF, an
indvidual,
Defendants.

Currently pending before the Court are: (1) Plaintiff’s Motion to Retain Case and
Extend Time for Filing Litigation Plan and Scheduling Conference (“Motion to Extend”)
(Dkt. 8) and Defendant Alfredo Miguel Afif’s Motion to Dismiss (Dkt. 9.) Having fully
reviewed the record, the Court finds that the facts and legal arguments are adequately
presented in the briefs and record and that oral argument is unnecessary. Accordingly,
because the Court conclusively finds that the decisional process would not be significantly
aided by oral argument, this matter shall be decided on the record before this Court without
oral argument. D. Idaho Loc. Civ. R. 7.1. As explained more fully below, the Court denies
Plaintiff’s Motion to Extend (Dkt. 8) and grants Defendant Alfredo Miguel Afif’s Motion
to Dismiss (Dkt. 9.)
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
On March 30, 2016, Plaintiff filed the instant Complaint against three Defendants:
(1) TCS Idaho, LLC; (2) Jean-Pierre A. Boespflug; and (3) Alfredo Miguel Afif. (Dkt. 12). The Complaint was originally filed in Idaho state court. Id. Plaintiff alleges that the
Defendants are each jointly and severally liable for the sum of $250,737. Id.
On June 9, 2016, Defendant Aziz removed the action to federal court based on
federal jurisdiction. (Dkt. 1, ¶8.) Afif further alleged he had not properly been served with
process but he did receive a copy of the complaint and summons, which were mailed to
Afif’s U.S. accountant. (Dkt. 1, ¶ 11.)
On June 10, 2016, the Court issued a Litigation Order requesting that the parties file
a Joint Litigation Plan and setting a scheduling conference on July 29, 2016. (Dkt. 3.) On
July 28, 2016, the day before the scheduling conference, Plaintiff filed a Motion to Extend
Time for Filing Litigation Plan and Scheduling Conference. (Dkt. 4.) Plaintiff made the
motion because “the principal defendant, Alfredo Miguel Afif, ha[d] not been served with
process” and “did not consent to proceed[] . . . until he . . . [was] served.” Id. When
requesting more time to accomplish service of process, Plaintiff recognized that Defendant
Afif was a Mexican national and “will need to be served in accordance with the Hague
Service Convention.” Id.
Also on July 29, 2016, the Court granted Plaintiff’s requested extension and reset
the scheduling conference for December 2, 2016, approximately four months later. (Dkt.
5.) Over three months later, on November 4, 2016, the first summons was issued in this
case. (Dkt. 6.) The Summons was issued as to Defendant Afif. Id. No other summons
MEMORANDUM DECISION AND ORDER - 2

appear to have been issued and no other party has appeared in the case to date, except for
Defendant Afif who has appeared solely to for the purpose of challenging service of
process.
On May 8, 2017, without any further contact from the Plaintiff and approximately
five months after the time set for the scheduling conference, the Court issued a Docket
Entry Notice of Dismissal for lack of prosecution. (Dkt. 7.) The Court notified Plaintiff
that the case would be dismissed pursuant to District of Idaho Local Civil Rule 41.1 for
lack of prosecution unless Plaintiff good demonstrate good cause for the Court to retain the
case on the docket. Id. Plaintiff responded with the instant Motion to Extend (Dkt. 8) and
Defendant responded with a Motion to Dismiss (Dkt. 11).
In sum, the instant case has been pending in this Court since June 9, 2016 and was
originally filed in state court on March 30, 3016. Plaintiff has had over 18 months to
effectuate service of process and has failed to do so.
DISCUSSION
The Court has discretion to dismiss an action “[i]f the plaintiff fails to prosecute or
comply with these rules or a court order.” Fed. R. Civ. P. 41(b). In addition, the Court may
dismiss an action on the basis of insufficient service of process. Fed. R. Civ. P. 12(b)(5).
In this case, the parties agree that Defendant Afif has not been served with process.
(Dkt. 8) (“the principal defendant, Alfredo Miguel Afif, has not been served with process”).
Accordingly, dismissal is warranted unless the Court finds good cause to extend the time
for service of process pursuant to Rule 4.

MEMORANDUM DECISION AND ORDER - 3

Rule 4(m) provides a plaintiff with 90 days to accomplish service of process. “If a
defendant is not served within 90 days after the complaint is filed, the court – on motion
or on its own after notice to the plaintiff- must dismiss the action without prejudice against
the defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m).
If the plaintiff demonstrates good cause for the failure, the Court must extend the time for
service for an appropriate period.” Id.
In this case, the Court provided Plaintiff with notice that the case would be
dismissed if the plaintiff did not show “good cause” by May 22, 2017. (Dkt. 7.) Plaintiff
responded to the Court’s order and also to Defendant’s Motion to Dismiss (Dkts. 8, 10.)
Nonetheless, Plaintiff has failed to demonstrate good cause for its failure to serve
Defendant Afif in the time allowed under Rule 4(m).
It is undisputed that Afif is a nonresident alien and a citizen and resident of Mexico.
(Dkts. 1, 4.) Accordingly, Rule 4(f) governs as it applies to service of process on
individuals in foreign countries. Alternatively, Plaintiff could try to serve Defendant Afif
within the United States consistent with Rule 4(e).
In July 2016, Plaintiff acknowledged that Defendant Afif could be served in Mexico
consistent with the Hague Convention as set forth in Rule 4(m)(1). (Dkt. 4.) Nonetheless,
the record does not reflect that Plaintiff initiated proceedings consistent with the Hague
Convention. Instead, Plaintiff indicated in May 2017 that he decided it would be quicker
to have Defendant Afif served in the United States. (Dkt. 8-1.) Accordingly, Plaintiff
investigated possible locations to find the Defendant and arranged for a professional skip

MEMORANDUM DECISION AND ORDER - 4

trace. (Dkt. 8-1). Apparently, these efforts have not succeeded and Plaintiff has made no
effort to explain why.
Moreover, in response to Defendant’s Motion to Dismiss, Plaintiff requested a 30day extension to accomplish service of process and conceded that if service of process was
not accomplished within that time, “the matter should be dismissed.” (Dkt. 10.) There is
no indication from the docket that Plaintiff was able to accomplish service of process in
the 30 days that followed.
On this record and given the passage of over 18 months of time since the case was
initially filed, the Court does not find good cause to extend the time for Plaintiff to serve
Defendant Afif. The Court finds that dismissal is appropriate pursuant to Rules 4(b)(5),
41(b), and District of Idaho Local Rule Civ. 41.1 for insufficient service of process and
failure to prosecute.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff’s Motion to Retain
Case and Extend Time for Filing Litigation Plan and Scheduling Conference (Dkt. 8) is
DENIED and Defendant Alfredo Miguel Afif’s Motion to Dismiss (Dkt. 9) is GRANTED
as stated herein.
DATED: October 13, 2017

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER - 5