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Lucas v. Natoli

United States Court of Appeals, Ninth Circuit
Jun 17, 1991
936 F.2d 432 (9th Cir. 1991)

Summary

holding that there is no time limit for foreign service under the unambiguous language of FRCP 4(m)

Summary of this case from Arrow Electronics, Inc. v. Hecmma, Inc.

Opinion

No. 90-55072.

Submitted April 5, 1991.

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).

Decided June 17, 1991. As Amended September 9, 1991.

Hugh Richard Koss, Lillick Charles, San Francisco, Cal., for defendants-appellants.

Earl P. Dolven, Phillips Greenberg, Dolven Strain, San Francisco, Cal., George E. Moore, Oliver, Sloan, Moore, Vargas, McMillan, Jacobs Pico, Pasadena, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before NORRIS, HALL and TROTT, Circuit Judges.



This is an interlocutory appeal certified under 28 U.S.C. § 1292(b). Appellants, who were named as defendants in a civil action filed in the United States District Court for the Southern District of California, were served in a foreign country eleven months after the complaint was filed. The question certified for this appeal is whether the requirement of Fed.R.Civ.P. 4(j) that the complaint be served within 120 days after filing applies to service in a foreign country. The district court ruled that it did not because of the plain language of Rule 4(j), which reads, in relevant part: "This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule." Subdivision (i) of Rule 4 in turn specifies the manner of service in foreign countries.

(j) Summons: Time Limit for Service


If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule.

We agree with the district court that the plain language of Rule 4(j) makes the 120-day service provision inapplicable to service in a foreign country, and so hold.

Appellants' sole argument to the contrary is to no avail. Relying on two cases, Montalbano v. Easco Hand Tools, 766 F.2d 737, 740 (2d Cir. 1985), and Gordon v. Hunt, 116 F.R.D. 313, 318 n. 17 (S.D.N.Y. 1987), aff'd 835 F.2d 452 (2d Cir. 1987), cert. denied, 486 U.S. 1008, 108 S.Ct. 1734, 100 L.Ed.2d 198 (1988), they argue that service in a foreign country must at least be attempted within 120 days. These cases are, however, inapposite. Each case was dismissed under Rule 4(j) because no service had been effected anywhere at the time of the order of dismissal. Accordingly, the question whether the 120-day requirement of Rule 4(j) applies to service in a foreign country was irrelevant.

We find the controlling language of Rule 4(j) so clear that it allows no latitude for interpretation. Whether or not the Rules of Civil Procedure should be amended to deal more adequately with the question of service in foreign countries is not for us to decide.

Appellants urge us to reach certain issues of personal jurisdiction. Because they were not certified for this appeal, we have no jurisdiction to do so.

AFFIRMED.


Summaries of

Lucas v. Natoli

United States Court of Appeals, Ninth Circuit
Jun 17, 1991
936 F.2d 432 (9th Cir. 1991)

holding that there is no time limit for foreign service under the unambiguous language of FRCP 4(m)

Summary of this case from Arrow Electronics, Inc. v. Hecmma, Inc.

rejecting the argument that service abroad must be attempted within the 120-day limit

Summary of this case from MAROLF v. AYA AGUIRRE ARANZABAL S.A

addressing predecessor version of Rule 4(m)

Summary of this case from Desh Vegas, LLC v. AKR Events, Inc.

addressing predecessor version of Rule 4(m)

Summary of this case from Safeco Ins. Co. of Am. v. Air Vent, Inc.

In Lucas, the Plaintiffs had successfully served the defendants under Rule 4(j) eleven months after the complaint was filed.

Summary of this case from Prudent Trust Company Limited v. Touray

In Lucas v. Natoli, 936 F.2d 432 (9th Cir. 1991), the United States Court of Appeals for the Ninth Circuit addressed an interlocutory appeal concerning "whether the requirement... that the complaint be served within 120 days after filing applies to service in a foreign country."

Summary of this case from Bybee v. Podravka Prehrambena Industria D.D.

distinguishing case where "[e]ach case was dismissed under Rule 4(j) because no service had been effected anywhere at the time of the order of dismissal"

Summary of this case from Bybee v. Podravka Prehrambena Industria D.D.

In Lucas v. Natoli, 936 F.2d 432 (9th Cir. 1991), the United States Court of Appeals for the Ninth Circuit addressed an interlocutory appeal concerning "whether the requirement... that the complaint be served within 120 days after filing applies to service in a foreign country."

Summary of this case from Bybee v. Podravka Prehrambena Industria D.D

distinguishing case where "[e]ach case was dismissed under Rule 4(j) because no service had been effected anywhere at the time of the order of dismissal"

Summary of this case from Bybee v. Podravka Prehrambena Industria D.D

stating "[w]e find the controlling language of Rule [4(m)] so clear that it allows no latitude for interpretation"

Summary of this case from 3M COMPANY v. DARLET-MARCHANTE-TECHNOLOGIE SA
Case details for

Lucas v. Natoli

Case Details

Full title:JANET LUCAS, PERSONALLY AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jun 17, 1991

Citations

936 F.2d 432 (9th Cir. 1991)

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Bybee v. Podravka Prehrambena Industria D.D.

Accordingly, courts have held that the rules do not establish a time limit for service in a foreign country.…

Bybee v. Podravka Prehrambena Industria D.D

Accordingly, courts have held that the rules do not establish a time limit for service in a foreign country.…