Rivard v. Lachman et al

Filing 17

ORDER denying 9 Defendant Lachman's Motion to Dismiss. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Patrick Rivard
v.

Case No. 13-cv-209-SM
Opinion No. 2014 DNH 076

Theodore B. Lachman, and
Internal Credit Systems, Inc.
O R D E R
Plaintiff, Patrick Rivard, brings this case against Internal
Credit Systems, Inc., a debt collection agency, and its president
and registered agent, Theodore Lachman, alleging violations of
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, and state statutory and common law.

Before the court is

defendant Lachman’s motion to dismiss for insufficient service of
process (document no. 9).

The motion is denied for the reasons

that follow.

Background
Rivard filed his complaint on April 30, 2013.

Alleging that

defendants were evading service, Rivard filed a timely motion for
an extension of time to effect service or for an order
“ratifying,” as alternative service under the New Hampshire’s
long-arm statute, service on Lachman’s abode.

By order dated

August 22, 2013, the court denied Rivard’s request that the court
“ratify” Rivard’s irregular alternative service on defendants,

noting that alternative service under New Hampshire’s long-arm
statute must be authorized by prior court order.

The court,

however, granted Rivard a sixty-day extension, until October 26,
2013, to effect service in accordance with the requirements of
Fed. R. Civ. P. 4.
Rivard successfully served the corporate defendant but was
unable to serve Lachman.

As supported by affidavit, Lachman

appears to have gone out of his way to evade service and has
admitted as much in phone conversations with Rivard’s office
staff, having stated, among other things, “Good luck getting me
served.”

Mathews Aff. (document no. 12-3).

Prior to the extended service deadline, counsel representing
both Lachman and the corporation filed an appearance and
requested, by assented-to motion, that defendants be given an
extension of time to file an answer or a motion under Rule 12(b).
The court granted the extension.

Rivard believed that Lachman

had voluntarily submitted himself to the court’s jurisdiction,
thereby waiving any objections to insufficiency to service.
Pl. Br., doc. no. 12, at 3.

He reasoned that it would,

therefore, "be unnecessary to move for additional time to
continue the several months long game of cat and mouse."

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Id.

Rivard was mistaken in his view of the law1 and Lachman’s
intentions.

One month later, Lachman filed a motion to dismiss

under Rule 12(b)(5) for insufficient service of process, which is
now before the court.
Rivard opposes the motion, making much of the fact - not
denied by Lachman - that Lachman has been actively evading
service.

Lachman, for his part, stresses the fact that Rivard

has been sitting on his hands, not taking the opportunity to seek
a second extension of time or an order allowing alternative
service.
Lachman, of course, has a point.

Rivard is an attorney

whose education and experience includes familiarity with
procedural matters and the importance of proactively pursuing an
order for alternative service or a second extension of time to
effect service.

On top of that, Rivard is represented by legal

counsel in this lawsuit.

But neither Rivard nor his counsel has

acted in bad faith and their conduct does not constitute
inexcusable neglect.

In fact, Rivard has asked, albeit not

proactively but in the course of objecting to Lachman’s motion to
dismiss, for an order allowing alternative service and for time

Contrary to Rivard’s belief then and now, Lachman did not
waive his objection to the sufficiency of service by filing a
motion to extend the time in which to file his answer or a 12(b)
motion. See Mann v. Castiel, 681 F.3d 368, 374, (D.C. Cir.
2012).
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to “complete service on the defendant.”

Pl. Br., doc. no. 12, at

4, 5.
In making those requests in his brief in opposition to
Lachman’s motion, Rivard ignores our local rule specifying that
“[o]bjections to pending motions and affirmative motions for
relief shall not be combined in one filing.”

L.R. 7.1(a)(1).

The court, nevertheless, will entertain Rivard’s requests because
the fully-briefed arguments on Lachman’s motion to dismiss are
relevant to - indeed, are wholly intertwined with - whether
Rivard should be given a final opportunity to effect service of
process on an uncooperative defendant.
An order for alternative service is appropriate in these
circumstances.

The procedures and methods for service of

process, as set forth in Rule 4, include, but are not limited to,
options provided for under the relevant laws of the state in
which the federal court is located.

See Fed. R. Civ. P. 4(e)(1).

New Hampshire’s long-arm statute provides for alternative service
by court order “as justice may require” when “the notice and a
copy of the process are not delivered to or accepted by the
defendant.”

N.H. Rev. Stat. Ann. (“RSA”) 510:4.

circumstances are present here.

Those

Rivard attempted to serve notice

and a copy of process both before and after the court’s August
22, 2013, order.

Here, “justice require[s]” that alternative

service be authorized.

Rivard’s sworn affidavit, and the

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attendant circumstances strongly suggest that Lachman is actively
and consciously evading service of process.
An extension of time to accomplish service is, granted.
Although “good cause” probably exists to warrant a mandatory
extension of time under Rule 4(m), the court need not reach that
issue because Lachman’s evasions easily support a discretionary
extension.

See Colby v. Town of Henniker, 2001 WL 274780, at *4

(D.N.H. Feb. 15, 2001) (courts “have discretion to grant a
plaintiff additional time to complete service of process even if
he cannot satisfy the ‘good cause’ standard” of Rule 4(m)) citing
Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1306 (3d
Cir. 1995) (“’Relief may be justified . . . if the defendant is
evading service.’”) (quoting Rule 4(m) Advisory Committee Note).

Conclusion
Defendant Lachman’s Motion to Dismiss (document no. 9) is
denied.

Plaintiff’s request for an order authorizing alternative

service is granted.

In keeping with the strict requirements of

New Hampshire’s long-arm statute, and notwithstanding that
defendant Lachman has actual notice of the claims against him,
plaintiff shall, within thirty (30) days, effect alternative
service of process by mailing a copy of the complaint and summons
via First Class mail (1) to Lachman’s last-known address and
(2) to the attorney who is representing Lachman in this lawsuit.

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SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
April 21, 2014
cc:

John F. Skinner, III, Esq.
Donald C. Crandlemire, Esq.
Dustin M. Lee, Esq.

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