'Timely' Service of Process Should Take Less Than 461 Days

By Robyn Hagan Cain on August 24, 2012 | Last updated on March 21, 2019

Timely service of process is just what the doctor court ordered.

Plaintiff Sobeida Feliz argued to the First Circuit that a district court abused its discretion in dismissing her malpractice and wrongful death claims against a doctor for failure to make timely service of process. The First Circuit disagreed, concluding (in an opinion by Justice Souter, sitting by designation), that “dismissal well over a year after filing the complaint and after serial, unexplained delays without apparent effort to get service was within the district court’s discretion.”

Feliz sued Dr. Brian MacNeill for negligence on behalf of Santa Encarnacion's estate. (Encarnacion died six days after Dr. MacNeill treated her.) There were a number of delays after Feliz filed the complaint on January 29, 2009. Finally, after multiple extensions, the district court decided it had had enough, and dismissed the claims against MacNeill with prejudice on March 18, 2010.

Feliz moved to vacate the dismissal order. She submitted an affidavit recounting the steps APS, her foreign process server, had taken to serve Dr. MacNeill, but the district court still entered final judgment for Dr. MacNeill under Federal Rule of Civil Procedure 54(b).

Two months later, Feliz filed another motion to vacate in the district court, saying that APS, through a local Irish authority, had served Dr. MacNeill on May 5, 2010. (That's 461 days after the complaint was filed.) The court denied the motion for lack of jurisdiction.

A few things to consider.

After Feliz filed the complaint, the case was removed to federal court. Though state and federal courts have time frames for service of process, the First Circuit noted that removal does not restart the clock for timely service of process.

Also, the federal rules don't give specific time limits on service outside of the U.S., but courts have leave to dismiss for failure to serve abroad when a plaintiff is dilatory.

In arriving at a reasonable limit in a given case, the First Circuit suggests that Federal Rule of Civil Procedure 4(m)'s 120-day cutoff for domestic service can be instructive; here, for instance, more than double that time had already passed without service before the case was removed to federal court, and another 141 days would go by before the district court dismissed the complaint.

According to Justice Souter, Feliz's "lackadaisical approach to the litigation" was underscored by the fact that she allowed the then-authorized period for service to expire three times before so much as requesting an extension. While the retired justice agreed that even a 426-day failure does not absolutely mandate dismissal, he noted that it requires a powerful showing of good cause to excuse. The First Circuit agreed with the district court that Feliz failed to show good cause for her extraordinary delay.

While Feliz's case presents unusual circumstances, you can still glean lessons from it about serving foreign defendants. If you want to ensure that you meet the timely service of process criteria, then comply with the FRCP 4(m) 120-day domestic cutoff.

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