Hull et al v. Viega, Inc.

Filing 39

ORDER.The Court finds that Plaintiffs have shown good cause why this case should not be dismissed for lack of prosecution as to Defendant Vanguard Industries, Inc. Furthermore, the Court finds that Plaintiffs' service on the Kansas version of Vanguard Industries, Inc., shall be deemed timely. Signed by District Judge Julie A. Robinson on 7/19/2012. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JIMMY and REGINA HULL,
individually and on behalf of those
similarly situated, et al.,

)
)
)
)
Plaintiffs,
)
)
vs.
)
)
VIEGA, INC., et al.,
)
)
Defendants.
)
____________________________________)

Case No. 12-2086-JAR-DJW

ORDER
This matter is before the Court pursuant to two Show Cause Orders. The first Notice and
Order to Show Cause (Doc. 22), required Plaintiffs to show good cause by July 2, 2012, why
service of the Summons and Complaint was not made in this case upon Defendants Viega
GMBH & CO. KG and Viega International GMBH within 120 days from the filing of the
Complaint, and why this action should not be dismissed as to those Defendants without
prejudice. The second Notice and Order to Show Cause (Doc. 23), required Plaintiffs to show
good cause by July 2, 2012, why this case should not be dismissed for lack of prosecution
pursuant to Fed. R. Civ. P. 41(b) as to Defendant Vanguard Industries, Inc. Plaintiffs have
timely filed responses to both show cause orders.1 For the reasons stated below, the Court finds
that Plaintiffs have made a sufficient good cause showing to satisfy both of the show cause
orders.
Plaintiffs have shown good cause why service of the Summons and Complaint was not

1

Docs. 28, 29.

made in this case upon defendants Viega GMBH & CO. KG and Viega International GMBH
(Defendants) within 120 days from the filing of the complaint, and why this action should not be
dismissed as to those Defendants without prejudice. Plaintiffs’ Complaint was filed on February
8, 2012.2 Defendants are foreign corporations domiciled in Germany. On May 31, 2012,
Plaintiffs filed a motion seeking appointment of a special process server, APS International, Ltd.,
(APS) in order to effectuate service on Defendants as authorized by the Hague Convention on
the Service Abroad of Judicial and Extrajudicial Documents.3 The motion was granted and
summonses were issued for the Defendants on June 4, 2012.4 On June 6, 2012, certified copies
of the Complaint, Summons, and Order were forwarded to APS for service on Defendants, and
APS is currently in the process of translating the documents to be served on Defendants.
Plaintiffs believe that once that process is complete, service on Defendants will be completed
under the Hague Convention within twelve weeks, if not sooner.
Federal Rule of Civil Procedure 4(m) states, in relevant part:
Time Limit for Service. If a defendant is not served within 120 days after the
complaint is filed, the court . . . must dismiss the action without prejudice. . . .
This subdivision (m) does not apply to service in a foreign country under Rule 4(f)
or 4(j)(1).5
Defendants are foreign companies which Plaintiffs are attempting to serve pursuant to Rule 4(f)
(through the Hague Convention), and the 120 day service limitation in Rule 4(m) does not apply
to service on these Defendants. Plaintiffs have shown good cause why this action should not be

2

Doc. 1.

3

Doc. 13; see Fed. R. Civ. P. 4(h)(2) and 4(f)(1).

4

Doc. 14.

5

Fed. R. Civ. P. 4(m) (emphasis added).

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dismissed as to these Defendants.
Plaintiffs have also made a good cause showing with regard to the second Show Cause
Order (Doc. 23). Although the Notice and Order to Show Cause states that service of the
Summons and Complaint was accomplished on Defendant Vanguard Industries, Inc., on March
29, 2012, Plaintiff has clarified that the “Vanguard Industries, Inc.” served by Plaintiffs was a
Delaware version of Vanguard Industries, Inc., the incorrect entity to serve for purposes of this
litigation. On June 20, 2012, Plaintiffs served the Complaint and Summons on the Kansas
version of Vanguard Industries, Inc., which Plaintiffs now understand to be the correct entity for
purposes of this litigation.6
Plaintiffs request an order finding that their service of the Kansas Vanguard Industries,
Inc., on June 20, 2012 was timely or, in the alternative, an order extending Plaintiffs’ time for
service on such entity to June 20, 2012, so as to render Plaintiffs’ service of that entity timely.
Plaintiffs’ service on the Kansas entity occurred less than two weeks after the expiration of the
deadline set forth in Rule 4(m) and no party will be prejudiced if Plaintiffs’ service is deemed
timely. The Court has not entered a scheduling order in this case and these proceedings will not
be delayed if Vanguard Industries, Inc., remains a defendant in this case. The Court finds that
Plaintiffs have shown good cause why this case should not be dismissed for lack of prosecution
as to Defendant Vanguard Industries, Inc. Furthermore, the Court finds that Plaintiffs’ service
on the Kansas version of Vanguard Industries, Inc., shall be deemed timely.
IT IS SO ORDERED.
Dated: July 19, 2012

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Doc. 25.

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S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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