Caseflicks

Court of Appeals for the Third Circuit • 1998

John A. McCurdy Jr., M.D. John A. McCurdy Jr., M.D., Facs, Inc. v. American Board of Plastic Surgery

157 F.3d 191 | 41 Fed. R. Serv. 3d 988 | 1998 U.S. App. LEXIS 23319

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Takeaway

In short, Rule 4(m)'s service deadline can be waived under Rule 12, but waiver of lateness does not make jurisdictionally ineffective service valid or excuse a plaintiff's failure to serve the defendant properly in the transferee forum.

Background

John A. McCurdy, a Hawaii cosmetic surgeon, sued the American Board of Plastic Surgery (ABPS) and others in federal court in Hawaii, alleging antitrust and related claims. He filed the original complaint on June 10, 1996, but did not successfully serve ABPS until October 28, 1996—twenty days after Rule 4(m)'s then-applicable 120-day service period expired. The initial service purported to rely on Hawaii's long-arm statute.

ABPS first moved to dismiss on January 17, 1997, asserting lack of personal jurisdiction and improper venue under Rules 12(b)(2) and 12(b)(3). It did not assert insufficiency or untimeliness of service under Rules 12(b)(4) or 12(b)(5). After the Hawaii court concluded it lacked personal jurisdiction over ABPS, it transferred the action to the Eastern District of Pennsylvania in the interest of justice.

Meanwhile, McCurdy made a second service attempt on February 7, 1997, invoking the Clayton Act's nationwide-service provision. That attempt came after the original 120-day period, and McCurdy never served ABPS anew after transfer to Pennsylvania. In the transferee court, ABPS sought dismissal based on untimely service. The district court held that Rule 4(m)'s deadline was mandatory and not waivable, found no good cause or equitable basis to extend the time for service, and dismissed the action. McCurdy appealed.

Issues

Issue #1

Whether a defendant waives an objection that service was untimely under Rule 4(m) by omitting it from its first Rule 12 motion.

Holding

Yes. An objection to untimely service under Rule 4(m) is governed by Rule 12's waiver provisions and is waived when a defendant omits it from an available consolidated Rule 12 motion.

Reasoning

Rules 12(g) and 12(h)(1) require a defendant making a pre-answer Rule 12 motion to consolidate all then-available defenses concerning personal jurisdiction, venue, process, and service. A defense of insufficient service under Rule 12(b)(5), including an objection that service was late, is therefore waived if it is omitted from that first motion.

Although Rule 4(m) uses mandatory language, stating that a court shall dismiss an action when service is not made within 120 days, that language does not override Rule 12's waiver framework. The court joined the uniform view of other courts and commentators that Rule 4(m)'s deadline remains enforceable only until the defendant waives the defect under Rule 12.

ABPS's January 17 motion challenged personal jurisdiction and venue but did not challenge the timeliness of the October 28 service. Because the alleged lateness of that service was already apparent and available as a defense, ABPS waived an objection to that service solely on Rule 4(m) timeliness grounds. ABPS did not, however, waive an objection to the later February 7 service, because that service had not yet occurred when ABPS filed its first motion.

Issue #2

Whether McCurdy's October 28 service under Hawaii's long-arm statute effectively established jurisdiction after the Hawaii court found it lacked personal jurisdiction over ABPS.

Holding

No. The October service was ineffective because Hawaii lacked personal jurisdiction over ABPS, and McCurdy had to serve ABPS anew from the transferee court in Pennsylvania.

Reasoning

Service under Hawaii's long-arm statute depended on ABPS being subject to the jurisdiction of Hawaii courts. Once the Hawaii district court determined that ABPS lacked sufficient contacts for personal jurisdiction, service made under that statute could not effectively invoke the Hawaii court's authority over ABPS.

A transfer does not convert ineffective service in the transferor forum into effective service in the transferee forum. Service is the mechanism by which a court gives notice and asserts jurisdiction over a defendant; accordingly, after transfer, McCurdy needed to serve ABPS with process issued by the Pennsylvania court.

ABPS preserved this jurisdiction-based objection through its Rule 12(b)(2) motion. Where the defect is that the forum lacks personal jurisdiction, a Rule 12(b)(2) objection directly raises the problem, and ABPS was not required to repeat the same objection separately as an insufficiency-of-service defense under Rule 12(b)(5).

Issue #3

Whether the district court abused its discretion by refusing to extend the time for McCurdy's February 7 service under Rule 4(m).

Holding

No. McCurdy showed neither good cause nor a persuasive discretionary basis for an extension, and the district court acted within its discretion in dismissing the action.

Reasoning

The February 7 service did not cure the problem. McCurdy conceded that, if his earlier Hawaii service was ineffective, the amended complaint did not begin a new 120-day service period. The relevant period began with the June 10 original complaint and expired on October 8, making the February attempt approximately four months late.

Under Third Circuit precedent, a court must grant an extension if the plaintiff shows good cause. Without good cause, the court may still grant an extension in its discretion. The district court found McCurdy's efforts to obtain timely service half-hearted and dilatory, a conclusion supported by his repeated late service attempts and his failure to seek an extension before the applicable deadline expired.

The expiration of the statute of limitations did not require an extension. While that consequence can favor discretionary relief, the court reasonably gave it reduced weight because the limitations period had already run when McCurdy filed the original complaint. McCurdy also waited until ABPS sought dismissal in Pennsylvania before requesting further relief, despite never serving ABPS in the transferee forum. Justice requires timely presentation of claims as well as decisions on the merits, and the court therefore affirmed the denial of an extension.