Repeated and unexplained delays of service on an overseas defendant justified dismissal of a medical malpractice and wrongful death lawsuit, the U.S. Court of Appeals for the First Circuit has ruled.
A unanimous panel on August 22 affirmed District of Massachusetts Judge Richard Stearns’ March 2010 dismissal of in Feliz v. MacNeill, citing the plaintiff’s failure to serve Dr. Briain MacNeill with court papers in his native Ireland for well more than a year, despite several deadline extensions.
Stearns issued a final judgment for MacNeill in June 2010 and affirmed both rulings in March 2011.
“Although [the rule] does not by its express terms apply to service of an individual in a foreign country, a court will dismiss a complaint (or party) where a plaintiff has not acted diligently in attempting to make service on a foreign defendant,” Stearns wrote in 2011.
That reasoning prevailed with retired U.S. Supreme Court Justice David Souter, who sitting by designation, wrote the First Circuit opinion. Judges Michael Boudin and O. Rogeriee Thompson joined him.
Federal Rule of Civil Procedure’s 120-day cutoff for domestic service could be “instructive,” Souter wrote. “[H]ere, 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.”
After Stearns dismissed the case, APS served MacNeill in Ireland in May 2010, according to court records.
“At some point, I think a court does say to a litigant, ‘Enough is enough,’ and I think this case is an example of that,” said Tamara Smith Holtslag, a Boston partner at Taylor Duane Barton & Gilman who helped represent MacNeill. Joshua Walls, a former associate at Taylor Duane, argued for him before the First Circuit.
In his opinion, Souter noted that under the “indeterminate federal rule,” even plaintiff Sobeida Feliz’s 426-day failure to serve MacNeill “does not absolutely mandate dismissal, but it requires a powerful showing of good cause to excuse, and we agree with the district court that Feliz failed to show good cause for her extraordinary delay.”
Although Feliz cited “the undoubtedly greater difficulty of service of process in a foreign country, and the greater time needed to get it done” that didn’t explain all the delays, Souter wrote.
He detailed additional delays by Feliz. One was waiting 19 days before requesting a district court order to appoint APS International Ltd. as special process server. Another was waiting 97 days to inform the district court that MacNeill had been served.
According to court records, MacNeill treated Feliz’s 57-year-old daughter, Santa Encarnacion, six days before her January 2007 death from brain damage “due to a sustained lack of cerebral blood flow.” Feliz also named two other doctors who treated Encarnacion before she died: Dr. Lawrence Hulefeld and Dr. Tori Robinson. The federal government was substituted as a party for Robinson, who is a U.S. government employee, and in November 2009, the government removed the case to federal court.
Feliz’s case against the other two doctors is pending.
Feliz argued that the Federal Rules provided no fixed deadline for service of process abroad. She also claimed plaintiffs cannot control the timing of international service of process under the Hague Convention and that she and APS had been reasonably diligent.
Holtslag conceded that the Federal Rules were silent on the point, but welcomed the First Circuit’s reference to the 120-day limit for domestic service as a guideline. “Justice Souter pointed out toward the end that service on a foreign defendant isn’t that difficult if a litigant does their homework,” she said.
Adam Satin of Boston-based Lubin & Meyer, who argued for Feliz, did not respond to a request for comment.
Sheri Qualters can be contacted at email@example.com.