Diaz Rivera v. Supermercados Econo, Inc. et al

Filing 84

MEMORANDUM AND ORDER re 52 Motion to Dismiss. Admiral's motion to dismiss pursuant to Rule 4(m) is GRANTED, its motion to dismiss pursuant to Rule 4(h) is DENIED, and plaintiff's claim against Admiral Insurance Company is DISMISSED WITHOUT PREJUDICE. Signed by Judge Francisco A. Besosa on 05/14/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA DE
RIVERA,

LOS

ANGELES

DIAZ-

Plaintiff,
v.
SUPERMERCADOS
al.,

ECONO

Civil No. 12-1925 (FAB)
INC.,

et

Defendants.

MEMORANDUM AND ORDER1
BESOSA, District Judge.
Before the Court is defendant Admiral Insurance Company’s
(“Admiral”) motion to dismiss the second amended complaint pursuant
to Federal Rule of Civil Procedure 12(b)(5) (“Rule 12(b)(5)”) for
insufficient service under Federal Rules of Civil Procedure 4(m)
(“Rule 4(m)”) and 4(h) (“Rule 4(h)”).

(Docket No. 52.)

For the

reasons discussed below, and after considering the motion to
dismiss, plaintiff’s reply, and Admiral’s surreply, the Court
GRANTS the motion to dismiss pursuant to Rule 4(m) and DISMISSES
WITHOUT PREJUDICE the claims against Admiral.

The motion to

dismiss pursuant to Rule 4(h) is DENIED.

1

Ian Qua, a third year student at George Washington
University Law School, assisted in the preparation of this
memorandum.

Civil No. 12-1925 (FAB)
I.

2

Background
Plaintiff Maria de Los Angeles Diaz-Rivera (“Mrs. Diaz”) filed

a

complaint

on

November

9,

2012,

alleging

that

her

husband,

Mr. Oscar Figueroa-Catala, died as a result of injuries suffered in
a fall at Supermercado Econo Sierra Bayamon.
¶¶

15-33.)

Mrs.

Diaz

further

alleged

(Docket No. 1 at

that

“Emergency

Room

Corporation,” the entity managing the emergency room, negligently
maintained

Mr.

resources.

Id. at ¶¶ 39-40.

on

March

21,

Figueroa

20132

without

(Docket

the

proper

facilities

and

Mrs. Diaz filed an amended complaint
No.

25),

and

added

Admiral

as a

defendant in her second amended complaint on April 18, 2013.3
(Docket No. 38.)

The Clerk of the Court issued the summons to

Admiral on June 12, 2013.

(Docket No. 44.)

Mrs. Diaz filed the

summons on July 12, 2013 and served the summons on Admiral on
September 13, 2013, 148 days after the second amended complaint
naming Admiral as a defendant was filed.

Id.

On October 25, 2013,

Admiral filed a motion to dismiss pursuant to Rule 12(b)(5),
claiming that service of process was deficient because Mrs. Diaz
failed to serve the summons (1) to Admiral within 120 days of the
filing of the complaint as required by Rule 4(m), and (2) on the

2

Mrs. Diaz contends that Emergency Room Corporation is WMR
Emergency Group, LLC. (Docket No. 25.)
3

Mrs. Diaz contends Admiral is the insurance company for WMR
Emergency Group, LLC. (Docket No. 38.)

Civil No. 12-1925 (FAB)

3

corporate entity, Admiral, pursuant to Rule 4(h).

(Docket No. 52

at ¶¶ 4-5.)
II.

Discussion
A.

Legal Standard
On or after filing a complaint, a plaintiff “may present

a summons to the clerk for signature and seal.”
P. 4(b).

Fed. R. Civ.

If the summons is properly completed, the clerk must

sign, seal, and issue the summons to the plaintiff for service on
the defendant.

Id.

Generally, the plaintiff is responsible for

serving the defendant within the time allowed by Rule 4(m).
R. Civ. P. 4(c)(1).

Fed.

The purpose of service is “to supply notice of

the pendency of a legal action, in a manner and at a time that
affords the defendant a fair opportunity to answer the complaint
and present defenses and objections.”
517 U.S. 654, 671-72 (1996).

Henderson v. United States,

A court may not exercise personal

jurisdiction over a defendant named in a complaint without service
of process on the defendant.

Murphy Bros. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 350 (1999).
A defendant can move to dismiss a claim for failure to
comply with the Rule 4(m) or 4(h) service requirements.

Fed. R.

Civ. P. 12(b)(5); 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure, § 1353 at 333 (3d ed. 2004).

See

also Bunn v. Gleason, 250 F.R.D. 86, 88 (D. Mass. 2008) (Rule
4(m)); O’Rourke v. United States, No. 10-CV-302 W(POR), 2010 WL

Civil No. 12-1925 (FAB)

4

2178957, at *1 (S.D. Cal. May 26, 2010) (Rule 4(h)). The plaintiff
bears the burden of showing that proper service has been effected.
Bolivar v. Dir. of FBI, 846 F. Supp. 163, 166 (D.P.R. 1994)
(Perez-Gimenez, J.) (citing Saez Rivera v. Nissan Mfg. Co., 788
F.2d 819, 821 n.2 (1st Cir. 1986)).
B.

Motion to Dismiss Pursuant to Rule 4(m)
1.

Whether a good cause extension is required
If a plaintiff does not effectuate service of a

summons on a defendant within 120 days from the filing of the
complaint, a court may either dismiss the action without prejudice
or extend the time period for service.

Fed. R. Civ. P. 4(m);

Molinelli-Freytes v. Univ. of P.R., 727 F. Supp. 2d 60, 62 (D.P.R.
2010) (Dominguez, J.).

If a plaintiff shows good cause for his or

her failure, however, a court must extend the time period.

Id.

Good cause is likely to be found when a plaintiff diligently acts
to

effect

service

or

there

are

mitigating

circumstances.

Moreno-Perez v. Toledo-Davila, 266 F.R.D. 46, 50 (D.P.R. 2010)
(Arenas, J.) (citing Bunn, 250 F.R.D. at 89).

Good cause will also

likely be found if the failure to serve the summons is due to a
third person or something beyond a plaintiff’s control, such as
when the failure is the result of a clerk’s negligence.

United

States v. Computer Sciences Corp., 246 F.R.D. 22, 27 (D.D.C. 2007)
(citing Abdel-Latif v. Wells Fargo Guard Servs., Inc., 122 F.R.D.

Civil No. 12-1925 (FAB)

5

169, 174 (D.N.J. 1988)); 4A Wright & Miller, supra, § 1086, at 455
n.13; 4B Wright & Miller, supra, § 1137, at 342.
Federal Rule of Civil Procedure 6(b) (“Rule 6(b)”)
allows a plaintiff to request an extension of time to serve a
defendant.

Fed. R. Civ. P. 6(b).

A plaintiff’s knowing failure to

file an extension within the 120-day period, however, can weigh
against a finding of good cause.

Yordan v. Am. Postal Workers

Union, AFL-CIO, 293 F.R.D. 91, 95-96 (D.P.R. 2013) (McGiverin, J.);
Padilla-Cintron v. Rossello-Gonzalez, 247 F. Supp. 2d 48, 61
(D.P.R. 2003) (Pieras, J.).
In support of its Rule 4(m) motion, Admiral contends
that it was prejudiced by Mrs. Diaz’s improper service because it
could not “investigate the facts fully and avoid any possible
spoliation of evidence[,] . . . participate in the filing of the
Joint Case Management Memorandum[, or] comply with the Court’s
deadlines of the Initial Scheduling Order . . . and extensions
granted with regard to discovery.”

(Docket No. 52 at p. 5.)

In

response, Mrs. Diaz acknowledges her failure to serve the summons
within 120 days.

(Docket No. 57 at ¶ 4.)

She contends, however,

that her failure was for good cause because the Clerk did not issue
the summons until July 12, 2013, and she did not receive it until
“sometime the month of in [sic] August” for “reasons outside of
[her] control.”

Id. at ¶ 3.

Mrs. Diaz also argues, in the

alternative, that the Court may, in its discretion pursuant to

Civil No. 12-1925 (FAB)

6

Rule 4(m), grant an extension even if no good cause is found.
at ¶ 6-7.

Id.

In its surreply, Admiral contends that Mrs. Diaz failed

to show good cause for her failure.

(Docket No. 63 at ¶ 2-5.)

Admiral claims that blaming the delay in acquiring the summons on
the clerk does not establish good cause, especially when Mrs. Diaz
knowingly failed to request an extension within the 120-day period.
Id.
A court’s fact-specific good cause inquiry includes
a

consideration

of

the

diligence

of

the

mitigating circumstances which may exist.
United

States

v.

Ayer,

857

F.2d

881,

Moreno-Perez, 266 F.R.D. at 50-51.

plaintiff

and

any

Fed. R. Civ. P. 4(m);
885

(1st

Cir.

1988);

In Moreno-Perez, the court

found good cause where the plaintiff sought help locating the
defendant’s address and requested an extension of time to serve
before the 120-day deadline.

266 F.R.D. at 50-51.

The Court noted

mitigating circumstances, including that the plaintiff requested —
and was denied — an extension before the 120-day deadline, filed
and served an updated summons within six days of discerning that
the summons form was outdated, and served the defendant only five
days past the 120-day deadline.
factors

are

not

present

here;

Id. at 50.
Mrs.

Diaz

Those mitigating

never

requested

an

extension of time to serve, served Admiral between 13 and 43 days

Civil No. 12-1925 (FAB)

7

after receiving the filed summons,4 and served Admiral 28 days past
the 120-day deadline.5

(Docket No. 57 at ¶ 4.)

The facts of this

case are comparable to those of Padilla-Cintron, where the court
found no good cause because the plaintiff failed to request an
extension timely.

247 F. Supp. 2d at 61.

In Padilla-Cintron, the

plaintiff argued that the process server going into labor provided
good cause for a 77-day delay.

247 F. Supp. 2d at 61.

Without

knowing the date on which the process server went into labor, the
court found no good cause because the plaintiff failed to request
an extension at any point before serving the defendant.

Id.

Here,

Mrs. Diaz claims that she made several telephone calls to the Court
to retrieve the issued summons and that she received it sometime in
August.

(Docket No. 57 at ¶ 3.)

Mrs. Diaz’s inactivity after the

summons was issued and received, however, like the plaintiff in
Padilla-Cintron, destroys her good cause argument.

(Docket No. 57

at ¶ 3); Padilla-Cintron, 247 F. Supp. 2d at 61.
Mrs. Diaz should have known that, pursuant to Rules
4(m) and 6(b), it was her duty to ensure timely service of the

4

Mrs. Diaz vaguely contends that she received the summons
sometime in August, which the Court interprets as being between
August 1, 2013 and August 31, 2013. (Docket No. 57 at ¶ 3.) She
did not serve the summons on Admiral until September 13, 2013
(Docket No. 44); this was 43 days after August 1, 2013 and 13 days
after August 31, 2013.
5

Because Mrs. Diaz filed her second amended complaint on
April 18, 2013 (Docket No. 38), the 120-day deadline terminated on
August 16, 2013. She served Admiral 28 days after the deadline, on
September 13, 2013. (Docket No. 44.)

Civil No. 12-1925 (FAB)

8

summons on Admiral by requesting an extension.

Fed. R. Civ. P.

4(m) & 6(b); Padilla-Cintron, 247 F. Supp. 2d at 61.

Having

neglected to do so, Mrs. Diaz fails to establish good cause to
excuse the Rule 4(m) violation.
2.

The Court’s discretion to grant an extension ex post
facto for a Rule 4(m) violation
When

no

good

cause

is

found

for

a

Rule

4(m)

violation, a court has discretion either to dismiss the claims
against the defendant without prejudice or order that service be
made within a specified time.

Fed. R. Civ. P. 4(m); Henderson v.

United States, 517 U.S. 654, 662-63 (1996) (citing Fed. R. Civ.
P. 4 advisory committee’s note); Moreno-Perez, 266 F.R.D. at 50.
District courts within the Court of Appeals for the First Circuit
are divided on whether a discretionary extension absent good cause
is appropriate where a plaintiff fails to seek an extension of time
within the 120-day period.

Compare McIsaac v. Ford, 193 F. Supp.

2d 382, 384 (D. Mass. 2002) (“[A]n extension even absent a showing
of good cause . . . is appropriate only in circumstances where an
extension of time is sought prior to the expiration of Rule 4(m)’s
deadline.”) with United States v. Tobins, 483 F. Supp. 2d 68, 81
(D. Mass. 2007) (“This court does not agree that the [plaintiff]
was required to move for an enlargement of time before the court
may extend service deadlines. Nothing in Rule 4(m) or the Advisory
Committee Notes [so] requires.”) and Gray v. Derderian, No. C.A.
04-312L, 2007 WL 296212, at *3 (D.R.I. Jan. 26, 2007) (“This

Civil No. 12-1925 (FAB)

9

limitation does not exist in the Rule.”) (citing Mann v. Am.
Airlines, 324 F.3d 1088, 1090 (9th cir. 2003) and Petrucelli v.
Bohringer & Ratzinger, GmbH, 47 F.3d 1298, 1307 (3d Cir. 1995)).
In
extension,

courts

deciding

whether

to

look

several

factors,

at

grant

a

discretionary

including

whether

“(a) the party to be served received actual notice of the lawsuit;
(b) the defendant would suffer . . . prejudice; and (c) plaintiff
would be severely prejudiced if [its] complaint were dismissed.”
Moreno-Perez, 266 F.R.D. at 50 (quoting Tobins, 483 F. Supp. 2d at
79-80); Bunn, 250 F.R.D. at 90. A defendant suffers prejudice when
the delay harms his or her ability to mount an effective defense to
the claims against him or her.

Moreno-Perez, 266 F.R.D. at 50-51.

A plaintiff suffers prejudice when he or she is unable to re-file
a claim due to a time bar, and this prejudice can be the sole basis
for discretionary relief from the Rule 4 service requirements.
Bunn, 250 F.R.D. at 90.

The plaintiff’s ability to maintain a

claim against other defendants mitigates such prejudice.

Id.

at 91.
Courts

consider

whether

the

delay

in

service

prejudices a defendant by affecting or diminishing his or her
ability to defend himself or herself.
50-51.

Moreno-Perez, 266 F.R.D. at

In determining that the defendants were not prejudiced in

Moreno-Perez, the court relied on the fact that they were served
expediently, three and four days past the deadline, and thus were

Civil No. 12-1925 (FAB)

10

aware of the claims against them.
was not served expediently.

Id.

Here, in contrast, Admiral

Mrs. Diaz served Admiral 148 days

after adding it as a defendant.

(Docket Nos. 38 & 44.)

As a

result, Admiral claims it was not aware of the nature of the claim
and could not investigate facts, avoid spoliation of evidence,
participate

in

the

drafting

of

the

Joint

Case

Management

Memorandum, or comply with deadlines in the Initial Extension Order
or extensions granted for discovery.

(Docket No. 52 at p. 5.)

For

these reasons, Admiral has made a showing of prejudice.
Courts also consider whether the delay in service
prejudices a plaintiff by barring him or her from re-filing if his
or her claim is dismissed.

Bunn, 250 F.R.D. at 90.

When dismissal

would preclude re-filing due to a time bar, the plaintiff’s ability
to pursue charges against other defendants can justify a dismissal.
Id.

Here, Mrs. Diaz does not allege any time bar; rather, she

argues she is prejudiced merely because dismissal would cause a
delay for all parties.

Such a delay fails to establish that

Mrs. Diaz would be prejudiced by dismissal, given her ability to
pursue

charges

against

other

defendants,

including

Admiral’s

insured.
Though the Court finds that Admiral had actual
knowledge

of

the

suit

against

it,

prejudiced by the delay in service.

Admiral

has

shown

it

was

Moreover, Mrs. Diaz fails to

show that she would be prejudiced by a dismissal of her claim

Civil No. 12-1925 (FAB)

11

against Admiral; she may continue her claim against Admiral’s
insured.

Thus, the Court declines to exercise its discretion to

extend the 120-day period for service.

Accordingly, Admiral’s

motion to dismiss based on Rule 4(m) is GRANTED.
C.

Motion to Dismiss for Violation of Rule 4(h)
Rule 4(h) requires Mrs. Diaz to serve the summons on

Admiral, a domestic corporation, in a judicial district of the
United States either “in the manner prescribed by Rule 4(e)(1) for
serving an individual” or “by delivering a copy of the summons and
of the complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive service
of process.”

Fed. R. Civ. P. 4(h).

Admiral contends that Mrs. Diaz improperly served the
summons pursuant to Rule 4(h)(1)(B).

(Docket No. 52 at p. 4.)

It

argues that the summons designated Admiral to accept service of
process on behalf of Claims Adjustment Services, an entity that is
neither a party to the complaint nor an officer or agent of
Admiral.

Id.

In response, Mrs. Diaz contends that service was

sufficient on “Roberto Sueiro,” who identified himself as a manager
of Admiral, claimed he was authorized to receive the summons,
provided the information to fill in the proper space in the
summons, and was later identified by Admiral personnel as Admiral’s
president.

(Docket No. 57 at ¶¶ 8-12.)

Civil No. 12-1925 (FAB)

12

In light of the parties’ representations, the Court is
unpersuaded that service was deficient pursuant to Rule 4(h).
Accordingly, Admiral’s motion to dismiss on Rule 4(h) grounds is
DENIED.
III. Conclusion
For the reasons explained above, the Court finds that service
was deficient pursuant to Rule 4(m).

Admiral’s motion to dismiss

pursuant to Rule 4(m) is GRANTED, its motion to dismiss pursuant to
Rule

4(h)

is

DENIED,

and

plaintiff’s

claim

against

Admiral

Insurance Company is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
San Juan, Puerto Rico, May 14, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE