United States of America et al v. Alphatec Spine, Inc. et al

Filing 56

ORDER (1) DISMISSING RELATORS' COMPLAINT WITHOUT PREJUDICE AS TO DEFENDANT DR. SHANTI; AND (2) GRANTING IN PART AND DENYING IN PART RELATORS' MOTION TO SERVE DEFENDANTS DR. DURRANI AND CAST BY ORDINARY MAIL, WITH AN EXTENSION OF TIME TO COMPLETE SERVICE (Doc. 53 ). Signed by Judge Timothy S. Black on 3/28/2016. (mr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA
ex rel. GEORGE ARNOLD, et al.,
Plaintiff,
vs.
ALPHATEC SPINE, INC, et al.,
Defendants.

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Case No. 1:13-cv-586
Judge Timothy S. Black

ORDER (1) DISMISSING RELATORS’ COMPLAINT WITHOUT PREJUDICE
AS TO DEFENDANT DR. SHANTI; AND (2) GRANTING IN PART AND
DENYING IN PART RELATORS’ MOTION TO SERVE DEFENDANTS
DR. DURRANI AND CAST BY ORDINARY MAIL, WITH AN
EXTENSION OF TIME TO COMPLETE SERVICE (Doc. 53)
This civil action is before the Court on Relators’ response to the Court’s Order to
Show Cause (Doc. 43) and Relators’ motion to serve Defendants Dr. Atiq Abubakar
Durrani and Center for Advanced Spine Technologies, Inc. by ordinary mail, with an
extension of time to complete service (Doc. 53). 1
I.

BACKGROUND

Relators filed the complaint in this civil action on August 23, 2013. (Doc. 1). On
November 16, 2015, i.e. more than 90 days ago, the Court ordered Relators to serve the

1

The Government and Defendant Journey Lite of Cincinnati, LLC have advised the Court that
they do not intend to file responses.

complaint upon Defendants. (Doc. 23). 2 The record, however, contains no indication
that Defendants Dr. Atiq Abubakar Durrani, Dr. Neal Shanti, and Center for Advanced
Spine Technologies, Inc. (“CAST”) have been properly served. 3
On March 2, 2016, Relators were ordered to show cause in writing and within 14
days why the complaint should not be dismissed without prejudice as to Defendants Dr.
Durrani, Dr. Shanti, and CAST for failure to effect timely service of process of the
summons and complaint. (Doc. 41). Relators were notified that the Court would dismiss
the complaint without prejudice as to Defendants Dr. Durrani, Dr. Shanti, and CAST if
Relators did not show cause in writing. (Id.) On March 16, 2016, Relators responded to
the Court’s Order to Show Cause. (Doc. 43). Relators also moved for permission to
serve Defendants Dr. Durrani and CAST by ordinary mail at an address in Pakistan and
for an additional 60 days within which to effect service on those Defendants. (Doc. 53).

2

Pursuant to the False Claims Act, “the complaint shall not be served on the defendant until the
court so orders.” 31 U.S.C. § 3730(b)(2). The defendant shall not be required to respond to the
complaint “until 20 days after the complaint is unsealed and served upon the defendant pursuant
to Rule 4 of the Federal Rules of Civil Procedure.” 31 U.S.C. § 3730(b)(3) (emphasis added).
3

See Fed. R. Civ. P. Rule 4(m) (“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 that defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time for service
for an appropriate period.”)

2

II.

ANALYSIS

A. Defendant Dr. Shanti
In the absence of a showing of good cause for the failure to effect timely service,
the court has discretion to dismiss sua sponte, provided that the plaintiff has notice of the
proposed action. United States v. Gluklick, 801 F.2d 834, 837 (6th Cir. 1986).
Relators had ample notice of the Court’s proposed dismissal of Defendant Dr.
Shanti. (See Doc. 41). Rather than offer good cause for their failure to effect service of
process on Defendant Dr. Shanti, Relators have chosen not to object to his dismissal.
(See Doc. 43). Accordingly, Relators’ complaint is DISMISSED WITHOUT
PREJUDICE as to Defendant Dr. Shanti. 4
B. Defendants Dr. Durrani and CAST
1.

Service by Ordinary Mail

Federal Rule of Civil Procedure 4(f), which governs international service of
process on individuals, guides the Court’s analysis. 5 Rule 4(f)(3) provides for service

4

Pursuant to 31 U.S.C. § 3730(b), an action brought under the False Claims Act “may be
dismissed only if the court and the Attorney General give written consent to the dismissal and
their reasons for consenting.” However, as the Sixth Circuit has recognized, a number of federal
courts have held that this “consent” provision applies only where the plaintiff seeks voluntary
dismissal, and not where the court orders dismissal. United States v. Health Possibilities, P.S.C.,
207 F.3d 335, 344 (6th Cir. 2000) (citations omitted).

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Rule 4(h) governs service of process on corporations. Rule 4(h)(2) authorizes service of
process on a corporation “at a place not within any judicial district of the United States, in any
manner prescribed by Rule 4(f) for serving an individual, except personal delivery under
(f)(2)(C)(i).” Because Relators do not propose service by personal delivery, the analysis is the
same for service of Defendants Dr. Durrani (an individual) and CAST (a corporation).

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“by other means not prohibited by international agreement, as the court orders.” 6 Service
under Rule 4(f)(3) must fulfill two requirements: (1) it must be directed by the Court;
and (2) it must not be prohibited by international agreement. Lexmark Intern., Inc. v. Ink
Techs. Printer Supplies, LLC, 295 F.R.D. 259, 260 (S.D. Ohio 2013) (citation omitted).
Rule 4(f)(3) is “neither a ‘last resort’ nor ‘extraordinary relief.’ It is merely one means
among several which enables service of process on an international defendant.” Rio
Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002).
An alternative form of service must also comport with constitutional notions of
due process. To meet this requirement, the method of service must be “reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.” Lexmark Intern.,
Inc., 295 F.R.D. at 260 (citation omitted).
The Court must determine whether the facts and circumstances of this case
warrant the exercise of its discretion to order alternative service. Lexmark Intern., Inc.,
295 F.R.D. at 260 (citation omitted). The Court may require Relators to show that
reasonable efforts to serve the defendant have already been made, and that the Court’s
intervention will avoid further burdensome or futile attempts at service. See Studio A
Entm’t, Inc. v. Active Distribs., Inc., No. 1:06 CV 2496, 2008 WL 162785, at *3 (N.D.
Ohio Jan. 15, 2008).

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Because Relators move the Court to authorize a particular alternative form of service, the Court
presumes Relators intend to invoke Rule 4(f)(3). Other methods of international service, which
do not require the Court’s authorization, are provided in Rule 4(f)(1) and (2).

4

Relators advise that they have attempted service of process through the Hague
Convention, at significant cost and administrative difficulty. (See Doc. 53 at 1). Relators
claim that they have not yet received, and are not guaranteed to receive, confirmation of
service of process. (Id.) Relators note that service of Defendants Dr. Durrani and CAST
by ordinary mail, without the requirement of proof of return of service, has been
authorized in related state court actions. (See Docs. 53-1; 53-2). Relators propose to
serve Defendants Dr. Durrani and CAST at “the last known address known to [Relators]
that is best calculated to give actual notice.” (Doc. 53 at 2).
Applying Rule 4(f)(3), and its predecessor, courts have authorized international
service by ordinary mail. See Brockmeyer v. May, 383 F.3d 798, 805–06 (9th Cir. 2004),
and cases cited therein. However, a plaintiff must demonstrate that the facts and
circumstances of the case necessitate the court’s intervention. Lexmark Intern., Inc., 295
F.R.D. at 260 (citation omitted). Relators’ perfunctory assertions that service has been
attempted through the Hague Convention and that receipt of return of process is not
guaranteed are insufficient, without more detail, to make such a showing. 7

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Federal Rule of Civil Procedure 4(l)(2) requires that Relators submit proof of service outside
the United States. Because Relators would be serving Defendants Dr. Durrani and CAST under
Rule 4(f)(3), a receipt or some “other evidence satisfying the court that the summons and
complaint were delivered to the addressee” must be filed. Fed. R. Civ. P. 4(l)(2). No such
receipt would be available following service by way of ordinary international mail, and,
therefore, Relators would be unable to comply with the requirements of Rule 4(l)(2). See Studio
A Entertainment, Inc., 2008 WL 162785, at *5. The Court recognizes that, if valid service is in
fact made, a defect in the proof of service will not strip the court of power to hear the case. See
Mann v. Castiel, 681 F.3d 368, 373 (D.C. Cir. 2012). Nonetheless, the fact that Relators would
have no way of demonstrating that service had been effectuated causes the Court pause.

5

Further, Relators have not provided any evidence which assures the Court that
constitutional due process requirements would be satisfied. Relators do not provide any
information regarding the address at which they hope to effect service, including how
Relators came to learn of the address or why they believe that address is reasonably
calculated to apprise Defendants Dr. Durrani and CAST of this litigation. For all of these
reasons, the Court declines to authorize alternative service pursuant to Rule 4(f)(3) at this
time.
2.

Extension of Time for Service

Upon a showing of good cause for the failure to effect timely service, “the court
must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m);
Osborne v. First Union Nat’l Bank, 217 F.R.D. 405, 408 (S.D. Ohio 2003). Given the
complications associated with international service, the Court finds that Relators have
shown good cause for their failure to effect service on Defendants Dr. Durrani and
CAST within 90 days. Accordingly, the Court extends the time for service of these
Defendants by 60 days, as requested. See Fed. R. Civ. P. 4(m).

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III.

CONCLUSION

Accordingly, for the foregoing reasons:
(1) Relators’ complaint is DISMISSED WITHOUT PREJUDICE as to Defendant
Dr. Neal Shanti for failure to effect timely service of process of the summons and
complaint;
(2) Relators’ motion to serve Defendants Dr. Atiq Abubakar Durrani and Center for
Advanced Spine Technologies, Inc. by ordinary mail, with an extension of time to
complete service (Doc. 53) is GRANTED IN PART AND DENIED IN PART,
as follows;
(3) Relator’s request for an extension of time to complete service is GRANTED.
Relators shall serve Defendants Dr. Atiq Abubakar Durrani and Center for
Advanced Spine Technologies, Inc. within 60 days of the date of this Order; and
(4) Relators’ request for authorization to serve Defendants Dr. Atiq Abubakar Durrani
and Center for Advanced Spine Technologies, Inc. by ordinary mail is DENIED
without prejudice. Should Relators wish to serve Defendants by ordinary mail,
or by any other means pursuant to Fed. R. Civ. P. 4(f)(3), they may file a motion
for permission to do so, with evidentiary support (by affidavit, or otherwise)
sufficient for the Court to make the required findings set forth in Section II.B.1,
supra.
IT IS SO ORDERED.
Date: 3/28/2016

_/s/Timothy S. Black_________
Timothy S. Black
United States District Judge

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