Rose v. Bersa et al

Filing 23

ORDER denying part of 9 Motion for Judgment on the Pleadings; granting 11 Motion for an Extension of Time to Serve Eagle Imports up to 8/20/17. Within 15 days from the date of this order: a. Plaintiff must re-serve Eagle Imports with a copy of the signed Summons and Complaint and file written notice on the Courts docket after doing so; b. Plaintiff must notify the Court, via written notice filed on the Courts docket, as to the status of her attempts to serve Bersa; c. Defendants attorneys clarify, via written notice filed on the Courts docket, which Defendant or Defendants they represent. Signed by Judge Michael R. Barrett on 9/19/18. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Brittany Rose,
Plaintiff,
vs.
Bersa et al.,
Defendants.

)
)
) Case No.: 1:17-cv-00252
)
) Judge Michael R. Barrett
)
)
)
)
)
)
ORDER

This matter is before the Court on Defendant Eagle Imports’ (“Eagle Imports”) and
Defendant Bersa’s (“Bersa”) Motion to Dismiss due to insufficient process and service of
process pursuant to Rules 4, 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure
(“Rules”). (Doc. 9). Plaintiff filed a Motion to Deem Eagle Imports Properly Served and for
the Court to provide a reasonable time to complete service on Bersa. (Doc. 11). Eagle
Imports responded, (Doc. 15), and Plaintiff replied, (Doc. 16).
To start, the Court notes that Defendants raised the defenses of insufficient process
and insufficient service of process in their Answer, (Doc. 8), and included arguments
surrounding process and service in their Motion for Judgment on the Pleadings, (Doc. 9
(citing Rule 12(c)).

The parties rely on affidavits and other materials outside of the

pleadings to support their arguments surrounding service. (Docs. 9, 11, 15, 16, 20). Rule
12(d) provides that “[i]f, on a motion under Rule . . . 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).

Despite Rule 12(d)’s instruction, “it is improper to raise a challenge to service of
process in a summary judgment motion because the defense involves a matter in
abatement and does not go to the merits of the action.” King v. Taylor, 694 F.3d 650, 657
n.2 (6th Cir. 2012) (internal quotation marks and citations omitted). “Nevertheless, when
the defense has been preserved in an answer and is later raised in a pre-trial motion, a
court will look past the label chosen by the movant and treat the motion as a request for a
ruling on the defense made under . . . Rule 12(i).” Id.; see Fed. R. Civ. P. 12(i) (“If a party
so moves, any defense listed in Rule 12(b)(1)-(7) . . . and a motion under Rule 12(c) must
be heard and decided before trial unless the court orders a deferral until trial.”).
In light of the above, the Court will decide the issues surrounding process and
service of process first and those portions of Defendants’ Motion for Judgment on the
Pleadings that do not address process and service of process, (Doc. 9), and Plaintiff’s
Motion to File a First Amended Complaint, (Doc. 12), remain pending. See Omni Capital
Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise
personal jurisdiction over a defendant, the procedural requirement of service of summons
must be satisfied.”); see also King, 694 F.3d at 655; O.J. Distrib., Inc. v. Hornell Brewing
Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003) (“Due process requires proper service of
process for a court to have jurisdiction to adjudicate the rights of the parties.”).

I. BACKGROUND
Plaintiff filed her Complaint on April 18, 2017, and alleges that she was severely
injured while target shooting with a Bersa Thunder 380 semi-automatic pistol. (Doc. 1).

2

She states that Bersa is the Argentinian company that manufactured the pistol and Eagle
Imports is Bersa’s North American distributor. (Id.).
On May 18, 2017, counsel for Eagle Import’s emailed Plaintiff’s counsel a letter
regarding this case and their prior “conversation regarding preservation of the physical
evidence and defendant’s request for certain information and documents that would help
[Eagle Imports] analyze and consider [her] claims.” (Doc. 11, Attachment 4). Eagle
Import’s counsel emailed Plaintiff’s counsel about the letter in July 2017. (Id., Attachment
5). Plaintiff’s counsel responded with the requested documentation on August 7, 2017.
(Doc. 20, Attachment 1).
On August 10, 2017—114 days after she filed her Complaint—Plaintiff filed
Requests for Issuance of Summonses for Defendants. (Docs. 2, 3). In the Request for
Bersa, filed at 9:07 A.M., in the box titled “Defendant’s name and address,” Plaintiff wrote
“Bersa c/o Eagle Imports 1750 Brielle Ave, Unit B-1 Wanamassa, NJ 07712.” (Doc. 2). In
the Request for Eagle Imports, filed at 9:08 A.M., in the box titled “Defendant’s name and
address,” Plaintiff wrote “Eagle Imports 1750 Brielle Ave, Unit B-1 Wanamassa, NJ 07712.”
(Doc. 3). That morning, at 9:22 A.M., the Clerk issued Summonses which included the
Clerk’s signature. 1 (Doc. 4). Each Summons had “Summons in a Civil Action” as the first
page and “Proof of Service” as the second page. (Id.). That same morning, at 9:57 A.M.,
Sandra M. Martin (“Ms. Martin”), Plaintiff’s counsel’s paralegal and secretary, emailed a
New Jersey service processor copies of the Summonses and Complaint to serve “on both
Bersa and Eagle Imports.” (Doc. 16, Attachments 1-4).

1

The Clerk’s Deputy Clerk signed the Summons. (Doc. 4); see 28 U.S.C. § 751 (authorizing the clerk of
each district court to appoint deputies).

3

On August 14, 2017, Plaintiff’s counsel filed copies of the “Proof of Service” pages
as proof that the Summonses were returned as executed. (Docs. 5, 6). For Bersa, Plaintiff
submitted the page signed by the New Jersey service processor which states that he
received the Summons on August 10, 2017, “served the Summons on [] Suzanna Lewis,
Operations Manager, who is designated by law to accept service of process on behalf of []
Bersa,” on August 10, 2017, at 2:40 P.M., and “was told that Bersa is supplier, and Eagle
is their customer.” (Doc. 5). For Eagle Imports, Plaintiff submitted the page signed by the
same New Jersey service processor which states that he received the Summons on August
10, 2017, and “served the Summons on [] Suzanna Lewis, Operations Manager Eagle, who
is designated by law to accept service of process on behalf of [] Eagle Imports, Inc.,” on
August 10, 2017, at 2:40 P.M. (Doc. 6).
On August 30, 2017, Bersa and Eagle Imports filed their Answer. (Doc. 8). As
reflected on the docket sheet, the Court held a telephone Scheduling Conference in
December 2017 and counsel for the parties appeared. On January 2, 2018, Bersa and
Eagle Imports filed their Motion for Judgment on the Pleadings. (Doc. 9). On January 11,
2018, Plaintiff filed a motion for an extension of time to respond to Defendants’ Motion for
Judgment on the Pleadings, (Doc. 10), which the Court granted, (Doc. 22). On January 16,
2018, Plaintiff filed a Motion to Deem Eagle Imports Properly Served and for the Court to
provide a reasonable time to complete service on Bersa. (Doc. 11). Plaintiff attached an
affidavit of Ms. Martin, Eagle Import’s May 2017 letter, and emails between Plaintiff’s
counsel and Eagle Import’s counsel. (Id., Attachments 1-5). On January 31, 2018, Plaintiff
filed a Motion to File a First Amended Complaint and to Overrule Defendants’ Motion for
Judgement on Pleadings as Moot. (Doc. 12).

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Eagle Imports filed a Response 2 opposing Plaintiff’s motion that it be deemed
served. (Doc. 15). Eagle Imports attached an affidavit of Maria Kernasovic, the company’s
Vice President and Chief Financial Officer. (Id., Attachment 1). Ms. Kernasovic’s affidavit
includes, as exhibits, (A) an April 18, 2017, letter from Plaintiff’s counsel’s law firm
addressed to “Bersa c/o Eagle Imports 1750 Brielle Ave, Unit B-1 Wanamassa, NJ 07712”
requesting waiver of service; (B) “[a] true and correct copy of the summons addressed to
‘Eagle Imports’” that Eagle Imports states it received on August 10, 2017, which is not
signed by the Clerk; and (C) “[a] true and correct copy of the summons addressed to ‘Bersa
c/o Eagle Imports’” that Eagle Imports states it received on August 10, 2017, which is
similarly not signed by the Clerk. (Id., Exhibits A-C).
Plaintiff replied and attached (1) a second affidavit of Ms. Martin; (2) a copy of the
signed Summonses that the Clerk issued and Ms. Martin states she emailed to the process
server on August 10, 2017; (3) a February 9, 2018, email from the process server to Ms.
Martin forwarding to Ms. Martin the two attachments that the processes sever received from
her on August 10, 2017; (4) a PDF attachment of the signed Summonses that Ms. Martin
states the service process received on August 10, 2017; and (5) a PDF attachment of the
Complaint that Ms. Martin states the service processor received on August 10, 2017. (Doc.
16, Attachments 1-5).
In Plaintiff’s reply supporting her Motion to File a First Amended Complaint, she
confusingly attaches (1) a “corrected affidavit of Sandra M. Martin,” which appears to be a
corrected version of Ms. Martin’s first affidavit; (2) a copy of a domestic return receipt card

2

In it, Eagle Imports places all citations in footnotes. (Doc. 15); but see Standing Order on Civil Procedures,
Michael R. Barrett, I.G. (“all briefs and memoranda shall comport with the following: . . . Citations to be in
main body of text and not in footnotes”).

5

addressed to “Bersa c/o Eagle Imports 1750 Brielle Ave, Unit B-1 Wanamassa, NJ 07712,”
received by “S. Lewis,” delivered on April 24, 2017, and signed by “SM Lewis;” (3) a copy
of second domestic return receipt card addressed to “Eagle Imports 1750 Brielle Ave, Unit
B-1 Wanamassa, NJ 07712,” received by “S. M. Lewis,” delivered on April 25, 2017, and
signed by “SM Lewis;” (4) Eagle Import’s May 2017 letter; and (5) emails from Defendants’
counsel to Plaintiff’s counsel. (Doc. 20, Attachments 1-5).

II. PARTIES’ ARGUMENTS
Defendants ask the Court to dismiss the case and state that, although “Eagle Imports
was served by process server on August 10, 2017,” service occurred outside the 90-day
period required by Rule 4(m) and Plaintiff has not provided good cause for the untimely
service. (Doc. 9). Regarding Bersa, Defendants argue that “Plaintiff has not requested an
extension of time to serve Bersa nor otherwise taken any steps to effectuate valid, lawful
international service on Bersa in Argentina through the Hague Convention or the InterAmerican Convention on Letters Rogatory.” (Id.).
Plaintiff concedes that it served Eagle Imports outside of the 90-day period, asserts
that it has good cause for the delay, and states that, “[u]nder those circumstances, it seems
appropriate to extend time.” (Doc. 11). Plaintiff argues that the good cause was her
counsel’s May 2017 and July 2017 conversations with Eagle Imports’ counsel about the
possibility of early settlement, Plaintiff’s production of extrajudicial discovery to facilitate
such settlement, and, the fact that, immediately after her counsel learned that Eagle
Imports’ counsel could not waive service, her counsel “had the Clerk issue the summons,
which was promptly served.” (Id.). With respect to Bersa, Plaintiff states that Rule 4(m)’s

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90-day period does not apply to foreign companies and, “[n]ow that it is clear that
Defendants do not intend to resolve the matter absent litigation, Plaintiff is initiating a letter
rogatory under the Intra-American convention.” (Id.).
Eagle Imports responds, and argues for the first time, that the Summons it received
on August 10, 2017, was not signed by the Clerk in violation of Rule 4(a)(1)(F). (Doc. 15).
Plaintiff replies stating that “it would have been impossible for the process server to serve
[an] unsigned” Summons, as Ms. Martin only gave the process server a copy of the signed
Summons. (Doc. 16).

III. ANALYSIS
Rule 4 governs process and service of process. “A Rule 12(b)(4) motion concerns
the form of process rather than the manner or method of service . . . [and] is proper only to
challenge non-compliance with the provisions of Rule 4.”

Garcia v. Rushing, No.

4:11CV00734, 2012 WL 646061, at *1 (N.D. Ohio Feb. 28, 2012) (internal citations
omitted). “A Rule 12(b)(5) motion challenges the mode of serving the summons and
complaint.” Id. (citing Nafziger v. McDermott Inter., Inc., 467 F.3d 514, 520-21 (6th Cir.
2006)).
A. Eagle Imports
A summons must “be signed by the clerk.” Fed. R. Civ. P 4(a)(1)(F). Although the
parties agree that Eagle Imports received a copy of a Summons and the Complaint from
the service processor on August 10, 2017, they do not agree that the Summons was signed
by the Clerk and have submitted conflicting affidavits with conflicting copies of the
Summons allegedly served.

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A comparison of the CM/ECF header stamps on Plaintiff’s Request for Issuance of
Summons for Eagle Imports, (Doc. 3), the Clerk’s issued Summons for Eagle Imports,
(Doc. 4), and the “true and correct copy of the summons addressed to ‘Eagle Imports’”
attached to Ms. Kernasovic’s affidavit, (Doc. 15, Attachment 1, Exhibit B), reveals that the
copy of the Summons that Eagle Imports states it received was stamped as “Doc. #4” i.e.,
the Clerk’s issued Summons, (id.). Therefore, to the extent that Eagle Imports relies on
Wilson v. A&K Rock Drilling, Inc., No. 2:16-CV-739, 2016 WL 4836685, at *1 (S.D. Ohio
Sept. 15, 2016), to argue that Plaintiff “erroneously served the unsigned summons form
that [s]he had previously filed with the court as a Request for Issuance of Summons,” the
Court is not persuaded.
The Court notes that Eagle Imports did not initially argue that the Summons it
received was not signed by the Clerk and finds that Plaintiff requested and received a
signed Summons from the Clerk. (Docs. 3, 4, 9). The Court also finds that Eagle Imports
received notice of the lawsuit, as it filed its Answer 20 days after receiving the Summons.
The Court notes that Eagle Imports filed a Motion for Judgment on the Pleadings, (Doc. 9),
and its attorneys filed motions for leave to appear pro hac vice on its behalf and participated
in a status conference. (Docs. 8, 9, 13, 14). Moreover, Eagle Imports has not explained
how it was prejudiced from the alleged technical error.
Consequently, even assuming that the Summons that Eagle Imports received did
not bear the Clerk’s signature, the Court finds that such an error would be a non-prejudicial,
technical defect, based on the facts of this case, and would not warrant dismissal.
However, out of an abundance of caution and as the Court will not make a credibility
determination regarding the parties’ competing affidavits, the Court will order Plaintiff to re-

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serve Eagle Imports with a copy of the signed Summons and Complaint within 15 days
from the date of this order. Cf. Malibu Media, LLC v. Doe, No. CIV.A. ELH-13-03438, 2015
WL 4775337, at *9 (D. Md. Aug. 13, 2015) (holding dismissal not warranted but ordering
plaintiff to serve defendant with a copy of summons and complaint that fully comply with
Rule 4, where the parties relied “on competing affidavits and conflicting copies of the
summons purportedly served”).
Turning to the question of the timeliness of service of process, Eagle Imports argues
that Plaintiff has not requested an extension of time. (Docs. 9, 15). The Court disagrees.
In Plaintiff’s Motion to Deem Eagle Imports Properly Served, after her good cause analysis,
she states that “[u]nder those circumstances, it seems appropriate to extend time [to serve
Eagle Imports].” (Doc. 11). Although counsel for Plaintiff could be more articulate in the
characterization of his filings in the future, the Court will construe Plaintiff’s Motion as a
Motion for an Extension of Time to Serve Eagle Imports up to August 10, 2017.
“The plaintiff is responsible for having the summons and complaint served within the
time allowed by Rule 4(m).” Fed. R. Civ. P. 4(c)(1). Rule 4(m), in turn, provides that
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.
This subdivision (m) does not apply to service in a foreign country under
Rule 4(f), 4(h)(2), or 4(j)(1).
Fed. R. Civ. P. 4(m). Although Rule 4(m) does not define “good cause,” this Court has
held that Rule 4(m)’s first sentence means that, “regardless of the absence of good cause
and whenever a plaintiff fails to perfect service within [90] 3 days after filing a complaint,”

3

The 2015 Amendments to Rule 4(m) reduced the presumptive time to serve a defendant from 120 days
to 90 days. See Fed. R. Civ. P. 4, Advisory Committee Notes, 2015 Amendment, Subdivision (m).

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“a district court generally possesses the discretion to dismiss a complaint or to allow
service to be perfected within a specified time.” Boulger v. Woods, 306 F. Supp. 3d 985,
993 (S.D. Ohio 2018) (internal citations omitted); see Osborne v. First Union Nat. Bank
of Delaware, 217 F.R.D. 405, 406 (S.D. Ohio 2003). If, however, a plaintiff demonstrates
good cause for her failure to complete timely service, Rule 4(m)’s second sentence
removes the court’s discretion and the court must extend the time for service. See
Boulger, 306 F. Supp. 3d at 993; Osborne, 217 F.R.D. at 406.
The Advisory Committee notes to the 1993 Amendments to Rule 4(m) state that
The new subdivision explicitly provides that the court shall allow additional
time if there is good cause for the plaintiff’s failure to effect service in the
prescribed 120 days, and authorizes the court to relieve a plaintiff of the
consequences of an application of this subdivision even if there is no good
cause shown . . . Relief may be justified, for example, if the applicable
statute of limitations would bar the refiled action, or if the defendant is
evading service or conceals a defect in attempted service.
Fed. R. Civ. P. 4, Advisory Committee Notes, 1993 Amendment, Subdivision (m); see
Osborne, 217 F.R.D. at 406. The United States Supreme Court (“Supreme Court”)
discussed the 1993 Amendments in Henderson v. United States, 517 U.S. 654 (1996),
and explained that, in them, “courts have been accorded discretion to enlarge the 120day period ‘even if there is no good cause shown.’” Id. at 662; see Osborne, 217 F.R.D.
at 406-07. Further, as this Court has previously noted,
In the wake of Rule 4(m)'s adoption, a number of federal courts of appeals
also have concluded that good cause no longer stands as an absolute
prerequisite to extending the time for obtaining proper service of process.
Rather, these circuit courts have determined that Rule 4(m) provides a
district court with the discretion to extend the time for service of process
even without a showing of good cause. See, e.g., Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298, 1305 (3d Cir.1995); Davies v. Richards, 1999 WL
26913 (4th Cir.1999); Thompson v. Brown, 91 F.3d 20, 21 (5th Cir.1996);
Panaras v. Liquid Carbonic Industries Corp., 94 F.3d 338, 340-341 (7th
Cir.1996); Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 887
10

(8th Cir.1996); DeTie v. Orange County, 152 F.3d 1109, 1111 n. 5 (9th
Cir.1998); Espinoza v. United States, 52 F.3d 838, 840-841 (10th Cir.1995).
Osborne, 217 F.R.D. at 407.
After the implementation of the 1993 Amendments, the Sixth Circuit “addressed a
plaintiff's failure to obtain timely service of process in” Byrd v. Stone, 94 F.3d 217 (6th
Cir.1996), and Catz v. Chalker, 142 F.3d 279 (6th Cir.1998). Osborne, 217 F.R.D. at 407.
However, “neither Byrd nor Catz turned upon a judicial finding that the absence of good
cause precluded a plaintiff from effecting service of process after 120 days” and, “in both
cases, the Sixth Circuit's statement that a lack of good cause compels dismissal under
Rule 4(m) is dicta.” Id. Thereafter, “the Sixth Circuit recognized that Rule 4(m) grants
the district court discretion to extend the time period for service of process, even in the
absence of good cause.” Id. (citing Stewart v. Tenn. Valley Auth., 238 F.3d. 424, 2000
WL 1785749, at *1 (6th Cir. 2000)). In Stewart, the Sixth Circuit explained that
Rule 4(m) requires the district court to undertake a two-part analysis. First,
the court must determine whether the plaintiff has shown good cause for
the failure to effect service. If he has, then “the court shall extend the time
for service for an appropriate period.” Fed. R. Civ. P. 4(m) (emphasis
added). Second, if the plaintiff has not shown good cause, the court must
either (1) dismiss the action or (2) direct that service be effected within a
specified time. See id. In other words, the court has discretion to permit
late service even absent a showing of good cause.
Id. (citing Henderson, 517 U.S. at 662).
Subsequently, in Turner v. City of Taylor, 412 F.3d 629 (6th Cir. 2005), the Sixth
Circuit appears to have required that the plaintiff establish “good cause” by demonstrating
“excusable neglect.” Id. at 649-50. There, the plaintiff moved to reissue summonses for
certain defendants more than 120 days after he filed a second amended complaint, the
district court denied the motion, and the Sixth Circuit affirmed, holding that a plaintiff “must

11

show that his failure to act [within the 120 days under Rule 4(m)] was the result of
excusable neglect.” Id. at 650 (citing Fed. R. Civ. P. 6(b) (2005)). A year later, however,
the Sixth Circuit utilized the “excusable neglect” standard with respect to a district court’s
denial of a plaintiff’s motion to file an amended complaint out of time and not with respect
to the district court’s determination that the plaintiffs failed to demonstrate good cause for
missing Rule 4(m)’s 120-day deadline. Nafzinger, 467 F.3d at 520-21. Rather, the Sixth
Circuit discussed “a district court’s ‘discretionary determination’ of whether good cause
has been shown.” Id. at 521.
Most recently, the Sixth Circuit discussed Rule 4(m) in King and held that the
defendant “forfeited his service defense through his extensive participation in the
litigation,” including filing a Rule 26(f) report, participating in discovery on the merits,
attending depositions, moving to amend the court’s scheduling order, joining a motion to
extend the discovery deadline, and attending a status conference, and “the district court
abused its discretion in ruling otherwise.” 4 694 F.3d at. at 658.
Finally, the Advisory Committee notes following the 2015 Amendments to Rule
4(m) state that “[s]hortening the presumptive time for service [from 120 days to 90 days]
will increase the frequency of occasions to extend the time. More time may be needed,
for example, when a request to waive service fails, a defendant is difficult to serve, or a
marshal is to make service in an informa pauperis action.” Fed. R. Civ. P. 4, 2015
Advisory Committee Notes, Subdivision (m).

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The Sixth Circuit reviews a district court’s determination regard forfeiture and dismissal for insufficient
service and service of process under the abuse of discretion standard. King, 694 F.3d at 659; Nafzinger,
467 F.3d at 521.

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In light of the Supreme Court’s decision in Henderson, the Sixth Circuit’s holding
in Stewart, this Court’s decisions in Osborne and Boulger, the authority from other circuits
following the 1993 Amendments to Rule 4, the language of Rule 4(m) itself, and the
Advisory Committee notes to the 2015 and 1993 Amendments, the Court finds that Rule
4(m) permits a district court the discretion to allow late service, even where a plaintiff fails
to demonstrate good cause.

See Henderson, 517 U.S. at 662; Stewart, 2000 WL

1785749, at *1; Boulger, 306 F. Supp. 3d at 993; Osborne, 217 F.R.D. at 406; Fed. R.
Civ. P. 4(m); Fed. R. Civ. P. 4, Advisory Committee Notes, 2015 Amendment, Subdivision
(m); Fed. R. Civ. P. 4, Advisory Committee Notes, 1993 Amendment, Subdivision (m);
see also Smith v. Grady, 960 F. Supp. 2d 735, 749 (S.D. Ohio 2013).
Using the discretion afforded under Rule 4(m), the Court finds Plaintiff’s 24-day
delay in serving Eagle Imports permissible. 5 See id. First, Plaintiff appears to have
attempted to obtain a waiver of service from Eagle Imports. (Doc. 15, Attachment 1,
Exhibit A); (Doc. 20, Attachments 1, 2). The Court agrees with Eagle Imports, however,
that Plaintiff’s attempt failed, as it was only addressed to “Bersa c/o Eagle Imports.” (Doc.
15, Attachment 1, Exhibit A).

Although Plaintiff’s attempt was unsuccessful, it

demonstrates that Eagle Imports had knowledge of this lawsuit as of April 2017 when
they received the letter requesting waiver or as of May 2017 when Plaintiff’s counsel and
Eagle Import’s counsel engaged in early settlement discussions. (Doc. 15, Attachment
1, Exhibit A); (Doc. 20, Attachments 1, 4). Next, the Court notes that Eagle Imports has
retained three attorneys to represent it before this Court, received a copy of the
Complaint, filed an Answer within 21-days of its receipt of the Complaint, participated in

5

90-days after Plaintiff filed her Complaint was July 17, 2017.

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a telephone status conference, “and is willing to engage with the substance of the
allegations (as evidenced by [its] Motion for Judgment on the Pleadings seeking a
decision on the merits).” See Boulger, 306 F. Supp. 3d at 993. Additionally, Eagle
Imports has not suggested that any prejudice will result from the 24-day extension and
the Court can think of none other than the inherent prejudice of having to defend itself in
this suit. See Smith, 960 F. Supp. 2d at 749. Finally, the Court notes that, in exercising
its discretion to permit an extension of time, it “is acting consistently with the Sixth Circuit's
‘preference for deciding cases on the merits.’” Id. at 749-50 (citing Thacker v. City of
Columbus, 328 F.3d 244, 252 (6th Cir. 2003)).
In light of the above, Eagle Import’s Motion to Dismiss due to insufficient process
and service of process pursuant to Rules 4, 12(b)(4), and 12(b)(5) is denied.
B. Bersa
Rule 4(h)(2) governs international service of process on foreign businesses.
Specifically, Rule 4(h)(2) authorizes service of process on a foreign corporation “in any
manner prescribed by Rule 4(f) for serving an individual [in a Foreign Country], except
personal delivery.” Fed. R. Civ. P. 4(h)(2).
Rule 4(f) provides three methods for service. First, Rule 4(f) allows for service “by
any internationally agreed means of service that is reasonably calculated to give notice,
such as those authorized by the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents.” Fed. R. Civ. P. 4(f)(1). Second, Rule 4(f) provides that, “if
there is no internationally agreed means, or if an international agreement allows but does
not specify other means,” then service may be effectuated “as prescribed by the foreign
country’s laws for service in that country,” as directed by the foreign authority “in response

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to a letter rogatory or letter of request,” or “by using any form of mail that the clerk
addresses and sends to the [corporation] and that requires a signed receipt.” Fed. R. Civ.
P. 4(f)(2). Third, Rule 4(f) permits service “by other means not prohibited by international
agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). Rule 4(m), by its plain language,
“does not apply to service in a foreign country under Rule . . . 4(h)(2).” Fed. R. Civ. P.
4(m).
Eagle Imports states that it “is not an authorized agent for service on Bersa in the
United States,” as Bersa is a firearms supplier and Eagle Imports is their customer. (Doc.
9). Bersa states that “Argentina is a party to the Hague Convention and the InterAmerican Convention on Letters Rogatory.” (Id.). Most recently, Plaintiff stated that she
was “initiating a letter rogatory under the Intra-American [(sic)] convention.” (Doc. 11).
Plaintiff does not cite whether she is doing so pursuant to Fed. R. Civ. P. 4(f)(1) or
4(f)(2)(B). The Court needs more information before it can make a finding regarding
service on Bersa and orders that, within 15 days of the date of this order, Plaintiff notify
the Court as to the status of her attempts to serve Bersa, or obtain a waiver of service
from Bersa, pursuant to Rule 4. Plaintiff should provide as much detail as possible and
avoid the need to submit additional, corrected attachments.
Finally, it appears that Bersa has three attorneys working on this case.
Confusingly, though, its trial attorney has not made a formal appearance. Similarly,
confusing is that, in their motions for leave to appear pro hac vice, two attorneys moved
for admission as counsel for Eagle Imports only, (Docs. 13, 14), however, in the Response
Opposing Plaintiff’s Motion to Deem Eagle Imports as Served, the same two attorneys
and Eagle Import’s trial attorney signed the filing as “Counsel for Defendants Bersa and

15

Eagle Imports, Inc.” (Doc. 15). Moreover, the two attorneys appearing pro hac vice
notified the Court of their change of address and designated themselves as “attorneys of
record for defendants, Bersa and Eagle Imports, Inc.” (Doc. 21). Accordingly, the Court
orders, within 15 days from the date of this order, that Defendants’ attorneys clarify, via
written notice to the Court, which Defendant or Defendants they represent.

IV. CONCLUSION
Based on the foregoing, it is ORDERED that:
1. Plaintiff’s Motion for an Extension of Time to Serve Eagle Imports up to August 10,
2017, (Doc. 11), is GRANTED;
2. Eagle Import’s Motion to Dismiss due to insufficient process and service of process
pursuant to Rules 4, 12(b)(4), and 12(b)(5), (Doc. 9), is DENIED;
3. Bersa’s Motion to Dismiss due to insufficient process and service of process
pursuant to Rules 4, 12(b)(4), and 12(b)(5), (Doc. 9), REMAINS PENDING;
4. Those portions of Defendants’ Motion for Judgment on the Pleadings that do not
address process and service of process, (Doc. 9), REMAIN PENDING;
5. Within 15 days from the date of this order:
a. Plaintiff must re-serve Eagle Imports with a copy of the signed Summons and
Complaint and file written notice on the Court’s docket after doing so;
b. Plaintiff must notify the Court, via written notice filed on the Court’s docket,
as to the status of her attempts to serve Bersa;
c. Defendants’ attorneys clarify, via written notice filed on the Court’s docket,
which Defendant or Defendants they represent.

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IT IS SO ORDERED.
/s Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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