Vivas-Ruiz v. Ambush et al

2013 | Cited 0 times | D. Puerto Rico | September 3, 2013




Plaintiff, v. JOSHUA M. AMBUSH, et. al.,


Civil No. 12-2046 (JAF)


OPINION AND ORDER 7 We are asked to determine the validity of service of process in a breach-of- 8 contract action. 9

I. 10 11 Background 12 On December 26, 2012, the plaintiff, a former law client of the defendant, filed his 13 complaint 14 motion for an extension of time to serve process, with service required on June 6, 2013. 15 (Docket No. 5.) The plaintiff finally served the defendants on June 18, 2013. (Docket 16 No. 7.) On June 26, 2013, the defendant moved to dismiss the complaint under Rule 17 12(b)(5), asserting insufficient service of process because delivery was not accomplished 18 within 120 days after commencement. Even so, dismissal is not warranted as the 19 defendant claims. 20

II. 1 2 Legal Standard 3 A. Motion to Dismiss Standard 4

Federal Rule of Civil Procedure 4(m) gives a plaintiff 120 days to accomplish 5 service following the filing of the complaint. If a defendant is not served within 120 days, 6 Rule 4(m) requires that the court dismiss the action without prejudice or order that 7 service be made within a specified time. Fed.R.Civ.P. 4(m). 8

Additionally, Fed.R.Civ.P. 12(b)(5) provides for dismissal of a complaint due to 9 10 contesting the manner in wh Ramirez de Arellano 11 v. Colloides Naturels Int'l, 236 F.R.D. 83, 85 (D.P.R.2006); see also Molinelli Freytes v. 12 Univ. of P.R., 13 the proper vehicle for challenging the mode of delivery or the lack of delivery of the 14 FEDERAL 15 PRACTICE AND PROCEDURE § 1353 (3d ed. 2010). The party raising the insufficiency of 16 service bears the burden of specifically establishing how plaintiff failed to satisfy the 17 requirements of service. Ramirez de Arellano, 236 F.R.D. at 85. 18

It is well known that the dismissal of the action under Fed.R.Civ.P. 12(b)(5) is 19 inappropriate when there is a reasonably conceivable means through which service may 20 be obtained and jurisdiction acquired over the defendant and where defective service does 21 not prejudice the defendant. See, e.g., Benjamin v. Grosnick, 999 F.2d 590, 592 (1st Cir. 22 1993). Generally, if the first service of process is ineffective, and the defects are curable, 23 we treat a motion to dismiss as a motion to quash service of process in the alternative, 24 and retain the case pending effective service. Ramirez de Arellano, 236 F.R.D. at 85 n. 4. 25

However, district courts possess broad discretion to dismiss the action, or retain the case 1 and quash the service made on the defendant. Id. 2

III. 3 4 Discussion 5 First and foremost, dismissal is inappropriate because service finally occurred. 6 (Docket No. 6.) Moreover, a district court is not required to dismiss a defendant when 7 service is not made within the 120 day deadline especially when defendant admits in 8 his motion to dismiss that he has been served. See Fed.R.Civ.P. 4(m); see also Crispin- 9 Taveras v. Municipality of Carolina, 647 F.3d 1, 7 (1st Cir. 2011); Henderson v. United 10 States, 11 accorded discretion to enlarge the 120- there is no good cause 12 ; Zapata v. City of 13 New York, 502 F.3d 192, 196 (2d Cir.2007) (holding that district courts have discretion 14 to grant extensions of the service period even in the absence of good cause and citing 15 decisions from the Eleventh, Seventh, Tenth, and Third Circuits holding the same). 16 The parties have devoted significant time and resources to this matter, and 17 dismissing the action without prejudice at this time would serve no purpose especially 18 in light of the fact that the plaintiff finally effected service. And, neither party would be 19 prejudiced by permitting this action to continue in fact, just the opposite is true. As a 20 to dismiss is denied. 21

IV. 1 2 Conclusion 3 For motion to dismiss, (Docket No. 6), is 4 DENIED. 5 IT IS SO ORDERED. 6 San Juan, Puerto Rico, this 30th day of August, 2013. 7 S/José Antonio Fusté 8 JOSE ANTONIO FUSTE 9 U. S. DISTRICT JUDGE 10

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