Fifth Circuit Adopts 'Flexible Due Diligence' Standard for Service

By Robyn Hagan Cain on August 31, 2012 | Last updated on March 21, 2019

After a brief break to deal with Hurricane Isaac, the Fifth Circuit Court of Appeals decided to dive back into civil procedure with a new service of process policy.

Friday, the New Orleans-based appellate court adopted a flexible due diligence standard for foreign service of process.

The appeal arose from a 2006 automobile accident in Horn Lake, Mississippi. Gloria Lozano was a passenger in a vehicle that was struck by a truck rented from Enterprise and driven by Julie Bosdet. Bosdet was listed on the police accident report as residing in Ontario, Canada, but now is believed to live in England. Her passengers, Jennifer and Glen Parry, are believed to be British citizens living in London, who own or operate a seasonal bed and breakfast in Horn Lake called "Gracepines." (The business caters to tourists interested in Elvis Presley, since Horn Lake is just a hop, skip, and a jump from Elvis' adopted home, Memphis.)

Lozano filed a lawsuit against Bosdet, the Parrys, and Enterprise Rent-A-Car for the accident. She hired a private process server who communicated with the manager of the Parrys' business on June 6, 2009. The manager indicated that the Parrys would return to Mississippi from Great Britain that August. As to Bosdet, Lozano attempted service by restricted delivery mail at the Canadian address. All these efforts were within 120 days of the complaint's filing, the FRCP 4(m) time limit for service.

After granting two extensions of time, the district court dismissed the suit for lack of service.

Since the Fifth Circuit hadn't previously addressed FRCP 4(m) restrictions of foreign service of process, the judges got together and said: We have an appeal. We have no clear opinion on this issue. What the hell; let's adopt a standard.

(Sidebar: We might be paraphrasing.)

The appellate court noted that the 120-day service of process requirement does not apply to service of individuals abroad -- such as under the Hague Convention -- or service of a foreign state. After reviewing the varying standards that its sister circuits had adopted for foreign service of process, the Fifth Circuit settled on the "flexible due diligence standard."

The court explained:

Because "district courts need to be able to control their dockets," Rule 4(f) authorizes a without-prejudice dismissal when the court determines in its discretion that the plaintiff has not demonstrated reasonable diligence in attempting service. Though we do not insist that foreign service always be the first step, or that it be attempted within the first 120 days, in some cases that will be the only reasonable course. Good faith and reasonable dispatch are the proper yardsticks.

For Lozano, that means a second chance at a claim. The Fifth Circuit reversed and remanded the matter for analysis under the flexible due diligence standard.

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