Gonzalez-Droz et al v. Gonzalez-Colon et al

Filing 94

OPINION AND ORDER. DENIED 38 MOTION to dismiss under Rule 4(m) as to Luis R. Gonzalez-Colon, Luis M. Rodriguez-Mora, Milton D. Carrero-Quinones, and Miguel A. Echevarria. Signed by Judge Salvador E Casellas on 8/31/2009.(LB)

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO G O N Z A L E Z -D R O Z , et al Plaintiff v. G O N Z A L E Z COLON, et al Defendants C iv il No. 06-2263(SEC)

OPINION and ORDER Pending before this Court is Co-defendants' Milton D. Carrero Quiñonez, Luis M. R o d ríg u e z Mora, Miguel A. Echeverría Rodríguez, and Luis R. González Colon's (collectively " C o -D e f e n d a n ts " ) motion to dismiss, and Plaintiffs' opposition thereto. Dockets ## 38 and 88. Upon reviewing the filings, and the applicable law, Co-Defendants' motion is DENIED.

13 14 15 16 17 18 19 20 21 22 23 24 25 26 Factual Background On December 18, 2006, Plaintiffs filed suit against defendants under 42 U.S.C.A. sec. 1 9 8 3 and 28 U.S.C.A. sec. 1331, alleging due process and equal protection violations under the F if th and Fourteenth Amendments. They also alleged unlawful restriction of trade, pursuant to the applicable federal antitrust provisions. See Docket # 1. On even date, summons were is s u e d as to Co-Defendants, and Defendants Carlos R. Diaz-Vélez, Emilio Jiménez-Ortiz, Jose A . Nieves Torres, Eugenio E. Roura Ortiz, Juan J. Santana-Rodriguez, and Jose Jiménez Rivera. D o c k e t # 2. O n July 11, 2007, Co-Defendants filed a Motion to Dismiss, arguing that Plaintiffs had s e rv e d them after the time limit established by FED. R. CIV. P. 4(m) had elapsed. They further a v e r that Plaintiffs failed to move the court for an extension of time, and have not shown good c a u s e for their failure to timely serve the summons. See Docket # 38. Plaintiffs opposed, a rg u in g that Co-Defendants' motion to dismiss is untimely, insofar it was filed after Fed. R. Civ.

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P . 12's 20-day period to answer or otherwise plead. See Docket # 88. They also posit that Co3 D e f e n d a n ts were "particularly hard to find." Notwithstanding the above, at this time, all 4 D e f e n d a n ts have been properly served. 5 6 7 8 9 10 11 12 13 14 15 16 is ineffective, and the defects are curable, the Court should treat a motion to dismiss as a motion 17 to quash service of process in the alternative, and retain the case pending effective service. Id. 18 19 20 21 22 23 24 25 26 A s a result, a great number of motions requesting dismissal filed under Rule 12(b)(5) are often tre a te d as motions to quash service of process. Id. District courts possess broad discretion to d ism is s the action, or retain the case, and quash the service made on the defendant. Id. A p p lic a b le Law and Analysis Defendants assert that dismissal is warranted due to insufficiency of service, specifically, P la in tif f s ' failure to serve the summons within the 120 day time frame set by Rule 4(m). Plaintiffs first argue that pursuant to Rules 12(a)(1)(A) and 12(h)(1), once Defendants were s e rv e d , they had 20 days to answer the complaint, or otherwise plead via the filing of a motion to dismiss. They contend that insofar as Defendants did not file their motion to dismiss within S ta n d a r d of Review F ED. R. CIV. P. 12 (b)(5) FED. R. CIV. P. 12 (b)(5) provides for dismissal due to insufficiency of service. Service o f process is insufficient if it does not comply with the procedural requirements set forth in Rule 4 . A party filing a motion under Rule 12(b)(5) "is essentially contesting the manner in which p ro c e ss of service was performed." Ramirez de Arellano v. Colloides Naturels Int'l, 236 F.R.D. 8 3 , 85 (D.P.R. 2006) . Specifically, said rule addresses the delivery or the lack of delivery of th e summons and the complaint. Id. The party raising the insufficiency of service bears the b u rd e n of specifically establishing how plaintiff failed to satisfy the requirements of service. Id. H o w e v e r, this district has held that the dismissal of a claim "under Fed. R. Civ. P. 12(b)(5) is in a p p ro p ria te when there is [are] `reasonably conceivable means' through which service may b e obtained and jurisdiction acquired over the defendant." Id. Furthermore, if the first service

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s a id 20-day period, the insufficiency of service of process claim is deemed waived. In the 3 a lte rn a tiv e , Plaintiffs argue that Defendants were "particularly hard to find." 4 R u le 12 5 6 7 8 9 10 11 12 13 14 15 16 N in th Circuit held that "...such an overly rigid interpretation of the pertinent provisions of Rule 17 18 19 20 21 22 23 24 25 26 1 2 cannot be justified." Bechtel v. Liberty Nat'l Bank, 534 F.2d 1335, 1341 (9 th Cir. Ariz. 1 9 7 6 ). The Court also stated that Rule 12(b) only requires that such motions "be made before p le a d in g if a further pleading is permitted," and that the rule "does not limit the period to 20 d a ys ." Id. at 1341. In light of the foregoing, this Court finds that Rule 12(h)(1) does not mandate a waiver of a defense that is not asserted within the time frame provided by 12(a). Therefore this C o u rt finds that Defendants' motion to dismiss was timely, and will rule upon it accordingly. Service of Summons R u le 4(m) provides a 120-day time limit to serve a defendant after the issuance of s u m m o n s . If the defendant is not served within said time limit, the court "must dismiss the a c tio n without prejudice . . .or order that service be made within a specified time." However, P e r Rule 12(h)(1), the defenses at Rule 12(b), including that of insufficiency of service o f process, are waived if not included in a preliminary motion as required by Rule 12(g); or, if n o such motion is made, if they are not included in the responsive pleading, or in an amendment a llo w e d by Rule 15(a)(1). Plaintiff's argument on this front has been used sparingly by courts. See Granger v. Kemm, Inc., 250 F. Supp 644, 645-646 (E.D. PA. 1966). Moreover, recent d e c is io n s in various circuits have strongly criticized this approach as an overly strict in te rp re ta tio n of Rules 12(a) and 12(h)(1), and thus liberally interpret the time frame within w h ic h to plead a 12(b) defense. See Kampf v. Heinecke, 1995 U.S. Dist. Lexis 5592 (E.D. Pa. A p r. 28, 1995), LeBreland v. ATC VANCOM, Inc. 212 F.R.D. 475, 476 (E.D. Pa. 2002), Aetna L if e Ins. Co. v. Alla Medical Services, Inc., 855 F.2d 1470, 1473 (9th Cir. 1988) Bechtel v. L ib e rty Nat'l Bank, 534 F.2d 1335, 1340 (9th Cir.1976); 5A Charles A. Wright & Arthur R. M ille r, Federal Practice and Procedure § 1391, (3rd ed. 2004). Specifically, in Bechtel, the

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if "the plaintiff shows good cause for the failure, the court must extend the time for service for 3 a n appropriate period." Courts have "discretion to grant a plaintiff additional time to complete 4 s e rv ic e of process even if he cannot satisfy the `good cause' standard." Colby v. Town of 5 6 7 8 9 10 11 12 13 14 15 16 th a t date. Instead, Miguel A. Echevarría was served on May 7 th , 2007, while Milton Carrero, 17 18 19 20 21 22 23 24 25 26 L u is Rodríguez, and Luis González were served on May 9 th 2007, both over two weeks after the d e a d lin e set by Rule 4(m). Considering the applicable case law, Plaintiffs' allegations that D e f e n d a n ts were "particularly hard to find" are insufficient to meet the "good cause" standard. These allegations would have to be accompanied with a fact-specific narration of Plaintiffs' e f f o rt to serve the Defendants before the deadline, and why those attempts failed. Thus, P la in tif f s failed to show good cause for the delay in service. However, this does not necessarily dispose of Co-Defendants' claims of insufficient s e rv ic e , since other factors could warrant an extension of time to serve the summons. Among th e s e , courts have considered whether the statute of limitations has run, and would bar any re f ilin g of the action. Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1306 (3rd Cir. 1995). H e n n ik e r, 2001 DNH 38 (D.N.H. 2001). In fact, courts have developed a "two pronged inquiry" f o r determining whether to dismiss a claim on these grounds. McCurdy v. American Bd. Of P la s tic Surgery, 157 F.3d 191, 196 (3d Cir. 1998). First, the court must determine whether good c a u s e exists for the untimeliness of service, and if that is the case, the extension must be g ra n te d . However, if good cause is not shown, the court may still grant the extension by e x e rc is in g its discretion. Id.; See also MCI Telecomm, Corp. v. Teleconcepts, Inc, 71 F.3d 1 0 8 6 , 1098 (3rd Cir. 1995); De Tie v. Orange County, 152 F. 3d 1109, 1111 n.5 (9 th Cir. 1998); P e tru c e lli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3 rd Cir. 1995). The burden of d e m o n s tra tin g good cause rests upon plaintiffs. United States v. Ayer, 857 F.2d 881, 885 (1 st C ir. 1988). As Ayer suggests, "such a showing is, by its very nature, fact-specific." Id. In the instant case, the summons were issued on December 18, 2006. Pursuant to Rule 4 (m ), Plaintiffs had until April 17, 2007 to serve Defendants. However, they failed to do so by

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A lth o u g h "the running or the statute of limitations does not require the district court to extend 3 tim e for service of process," it is an important element to consider. Id. In the present case, the 4 s ta tu te of limitations bars the refiling of Plaintiffs' claims, which shifts the balance in Plaintiffs' 5 6 7 8 9 10 11 12 13 14 15 16 (E .D .P a 2006).) Since Co-Defendants have not shown that the delay has affected their ability 17 to defend themselves on the merits, dismissal on this ground is unwarranted. 18 19 20 21 22 23 24 25 26
As previously mentioned, the dismissal of a claim under Fed. R. Civ. P. 12(b)(5) is inappropriate when there are "`reasonably conceivable means' through which service may be obtained and jurisdiction acquired over the defendant," and district courts possess broad discretion to dismiss the action, or retain the case, and assure that the defendant is properly served. Ramirez de Arellano, 236 F.R.D. at 85. Therefore, even if this Court concluded that service was insufficient, dismissal was not necessarily warranted.
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f a v o r. Moreover, courts have exercised their discretion, and granted extensions under Rule 4 (m ), after considering: "whether the defendant had actual notice of the claims asserted in the c o m p la in t ...whether the defendant evaded service ... whether the defendant would be prejudiced b y the granting of plaintiff's request for relief from the provision," and "...whether service was re q u ire d to be made on multiple defendants," Gonsalves v. Derderian, 2007 U.S. Dist. Lexis 7 4 7 9 , 13-16 (D.R.I. 2007). Since the other six defendants were served expediently, this Court f in d s it reasonable to infer that Co-Defendants were aware of the claims asserted against them. A d d itio n a lly, there is no reason to believe that Co-Defendants were prejudiced by a three-week d e la y in service. Prejudice has been defined in the context of service as `involv[ing] impairment o f defendants ability to defend on the merits, rather than foregoing...a procedural or technical a d v a n ta g e " Id. at 20 (quoting Thompson v. Sears, Roebuck & Co, 2006 U.S. Dist. Lexis 9419

Therefore, although Plaintiffs failed to show good cause for their failure to serve within th e time-period permitted by Rule 4(m), considering the procedural background of this case, the s h o rt delay in serving the summons, and the fact that, at this time, all defendants have been p ro p e rly served, this Court exercises its discretion, and deems all parties as properly served.1

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3 In light of the above, Defendants' motion to dismiss is DENIED. 4 I T IS SO ORDERED. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In San Juan, Puerto Rico, this 31st day of August, 2009. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge