Prystawik v. BEGO USA et al

Filing 31

ORDER granting 30 Motion to Adjourn and ORDER TO SHOW CAUSE in writing on or before 8/22/14. So Ordered by Chief Judge William E. Smith on 7/18/14. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
BEGO BREMER GOLDSCHLAGEREI
)
WILH. HERBST GmbH & CO. KG;
)
WEISS HANDELS -UND
)
VERWALTUNGSGESELLSCHAFT;
)
DIRECTOR HELMUT LASCHUETZA;
)
DIRECTOR CHRISTOPH WEISS;
)
THOMAS KOSIN; GENERAL MANAGER
)
BILL OREMUS,
)
)
Defendants.
)
________________________________ )
STEFAN M. PRYSTAWIK,

C.A. No. 13-134 S

ORDER ON PLAINTIFF’S MOTION TO ADJOURN AND ORDER TO SHOW CAUSE
WILLIAM E. SMITH, Chief Judge.
A show cause hearing is set to take place in the abovecaptioned matter on July 29, 2014 in Providence, Rhode Island.
Plaintiff Stefan M. Prystawik has filed a Motion to Adjourn that
hearing (ECF No. 30).

For the reasons set forth, Plaintiff’s

Motion to Adjourn is GRANTED, but the Court also takes this
opportunity to clarify and renew its previously-issued orders to
show cause.
I.

Background
Plaintiff, acting pro se, brought this suit as the assignee

of Ms. Inne Henke, a German national, against BEGO USA (“BEGO

USA”), BEGO Bremer Goldschlagerei Wilh. Herbst GmbH & Co. KG
(“BEGO

GmbH”),

Weiss

Handels

–und

Veraltungsgesellschaft

GmbH

(“Weiss GmbH”), Directors Helmut Laschuetza and Christoph Weiss
(the “Directors”), Thomas Kosin (“Kosin”) and General Manager
Bill Oremus (“Oremus”).

Though difficult to parse at times,

Plaintiff’s Complaint seems to assert claims based on alleged
age and gender discrimination encountered by Ms. Henke during
the course of her employment with BEGO GmbH in Germany.
This Court granted a motion to dismiss filed by BEGO USA on
May 30, 2013 based on a defective assignment and Plaintiff’s
failure to state a claim (ECF No. 13).
dismissal,

but

failed

to

respond

issued by the First Circuit.

to

Plaintiff appealed this
an

order

to

show

cause

As a result, the First Circuit

ordered that the case against BEGO USA be dismissed (ECF No.
25).
On August 2, 2013, while the appeal was pending before the
First

Circuit,

this

Court

issued

its

own

order

directing

Plaintiff to show cause as to why the matter should not be
dismissed based on Plaintiff’s failure to properly serve the
remaining
Kosin

and

defendants,
Oremus,

in

BEGO

GmbH,

violation

Procedure 4(m) (ECF No. 22).

Weiss
of

GmbH,

Federal

the
Rule

Directors,
of

Civil

Plaintiff responded that he had,

in fact, served attorney Douglas A. Darch, a partner at the
Chicago office of Baker & McKenzie (ECF No. 23).
2

Because this Court’s order to show cause was issued during
the pendency of Plaintiff’s appeal to the First Circuit, out of
an abundance of caution, the Court issued a second order to show
cause on February 7, 2014 (ECF No. 28).

Plaintiff was again

instructed to show cause as to why the matter should not be
dismissed based on improper service in violation of Rule 4(m).
II.

Discussion
This matter has become confused for several reasons, some

of which is the Court’s fault.
the

issues,

and

the

This discussion should clarify

Plaintiff

will

opportunity to salvage his Complaint.

be

given

one

final

As an initial matter,

Plaintiff appears to miscomprehend the service requirements set
forth in the Federal Rules of Civil Procedure.

Specifically,

the Court calls Plaintiff’s attention to Federal Rule of Civil
Procedure

4(f)

which

governs

service

on

an

individual

in

a

foreign country, as well as Federal Rule of Civil Procedure 4(h)
which governs service on both domestic and foreign corporations.
Plaintiff’s act of serving Mr. Darch was insufficient to
effect service on BEGO GmbH, Weiss GmbH, the Directors, Kosin
and Oremus. 1

“Service of process is not effectual on an attorney

solely by reason of his capacity as an attorney, [but] [t]he
party must have appointed his attorney as his agent for service

1

Indeed, none of these defendants have responded,
suggesting they have not received notice of this suit.
3

of process.”
1993)

Williams v. Jones, 11 F.3d 247, 251 (1st Cir.

(citations

omitted).

It

is

true

that

Mr.

Darch

retained to represent BEGO USA in these proceedings.
was

not

retained

to

represent

Directors, Kosin or Oremus.
No. 24-2.)

BEGO

these

Weiss

But, he
GmbH,

the

(See Aff. of Douglas A. Darch, ECF

Nor was he designated as an agent for service of

process for any of these defendants.
that

GmbH,

was

defendants

have

not

(Id.)
been

As such, it appears

adequately

served

in

compliance with the Federal Rules of Civil Procedure.
In this Court’s two earlier orders to show cause, Plaintiff
was

incorrectly

instructed

to

show

cause

as

to

how

complied with Federal Rule of Civil Procedure 4(m).

he

had

Rule 4(m)

provides that “[i]f a defendant is not served within 20 days
after the complaint is filed, the court . . . must dismiss the
action without prejudice.”
Read in isolation, this provision suggests that the suit
should be dismissed against the remaining defendants based on
ineffective service.

However, Rule 4(m) goes on to state that

“[t]his subdivision (m) does not apply to service in a foreign
country under Rule 4(f).”

This Court’s prior orders to show

cause overlooked the fact that all of the remaining defendants
appear to be German individuals or corporations.
The Court arguably led Plaintiff astray with its previous
orders

which

suggested

that

Plaintiff
4

was

bound

by

the

requirements of Rule 4(m) when, in fact, that may not be the
case.

For this reason, the Court GRANTS Plaintiff’s Motion to

Adjourn the show cause hearing scheduled for July 29, 2014, and
will give Plaintiff an opportunity to show that he has effected
service and avoid dismissal.
Order to Show Cause
On or before August 22, 2014, Plaintiff is hereby ordered
to

show

cause,

in

writing,

why

this

matter

should

not

be

dismissed against the above-named defendants for failure to make
service in compliance with Federal Rules of Civil Procedure 4(f)
and 4(h).

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: July 18, 2014

5