11-1308 SOBEIDA FELIZ, Administratix of the Estate of Santa Encarnacion v. Briain Macneill, M.d.

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
Nos. 10-1549, 11-1308
SOBEIDA FELIZ,
Administratix of the Estate of Santa Encarnacion,
Plaintiff, Appellant,
v.
BRIAIN MACNEILL, M.D.,
Defendant, Appellee,
UNITED STATES, on behalf of Tori Robinson, M.D.;
LAWRENCE HULEFELD, M.D.,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard Sterns, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Thompson, Circuit Judge.
Adam R. Satin, with whom William J. Thompson and Lubin &
Meyer, PC were on brief, for appellant.
Joshua B. Walls, with whom Tamara Smith Holtslag and Taylor,
Duane, Barton & Gilman LLP were on brief, for appellee.
August 22, 2012
The Hon. David H. Souter, Associate Justice (Ret.) of the *
Supreme Court of the United States, sitting by designation.

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SOUTER, Associate Justice. Plaintiff Sobeida Feliz
contends that the district court abused its discretion in
dismissing her malpractice and wrongful death claims against a
doctor for failure to make timely service of process. We conclude
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, and therefore
affirm.
I
As alleged in the pleadings, Dr. Briain MacNeill treated
Feliz’s decedent, Santa Encarnacion, six days before her death,
after which Feliz sued on behalf of Encarnacion’s estate in a
Massachusetts state court, claiming that the cause of death was the
negligence of Dr. MacNeill and the two other physician defendants
in this case, Dr. Tori Robinson and Dr. Lawrence Hulefeld. Feliz
filed the complaint in Essex County Superior Court on January 29,
2009, and on the very day (April 30) that the time for service of
process expired under the state rule she moved for, and received,
a 90-day extension of time. That same day, she purported to serve 1
the summons and complaint on Dr. MacNeill at his former office at
North Shore Medical Center. The papers were left with an assistant
Although several of Feliz’s pleadings refer to a filing date 1
of January 16, 2009, and MacNeill, on appeal, contends that the
complaint was actually submitted on this date, the Superior Court
docket shows that the case was filed on January 29.
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to the Medical Center’s general counsel, but the parties now agree
that this was not proper service on the defendant. In fact, Dr.
MacNeill no longer worked at the Medical Center or even resided in
the United States, having moved to Galway, Ireland.
While under no apparent obligation to do so, his lawyers
informed Feliz’s counsel in June 2009 of their client’s new
residence, although they declined to accept service on his behalf.
Feliz then tried unsuccessfully to serve MacNeill in Ireland by
certified mail, and in August hired APS International Ltd., an
international process service company, to make service in Ireland.
APS took the first step towards serving MacNeill by sending a
formal request to Ireland’s central authority on international
service of judicial documents.
After the extended time for service had expired (on July
29), MacNeill moved to dismiss the complaint, and Feliz responded
by filing a motion to extend the service period by another 90 days.
The court granted the motion to extend and set a hearing for
November 12 on the request for dismissal. Two days before the
hearing, the United States (on behalf of Dr. Tori Robinson) filed
a notice of removal, transferring the case to the U.S. District
Court for the District of Massachusetts.
On December 15, the period for service established by the
superior court’s second 90-day extension expired, and a month after
that MacNeill sought dismissal for lack of service, in a motion
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much like his earlier one filed in superior court. Opposing it,
Feliz said that she had hired APS and described some difficulties
in establishing the firm’s agency in the matter to the satisfaction
of the Irish authorities. On February 1, 2010, the district court 2
denied the motion to dismiss, but without prejudice, and granted
Feliz another 45 days to make service (in addition to the 47 days
that by then had already passed after the expiration of the state
court’s second extension).
On March 18, 2010, at the end of the new 45-day period,
Feliz moved for another extension of time for service, this one for
90 days, and MacNeill renewed his motion to dismiss. The district
court denied the request for further extension and dismissed the
claims against MacNeill with prejudice. Feliz moved to vacate the
dismissal order and supplied a new affidavit from an APS employee,
recounting the steps APS had taken to serve Dr. MacNeill, but the
district court denied the motion and on June 18 entered final
judgment for Dr. MacNeill under Federal Rule of Civil Procedure
54(b). Two months later, while pursuing this appeal, Feliz filed 3
At the request of Irish officials, Feliz had (after an 2
unexplained 19-day delay) asked the district court for a copy of an
order designating APS as a Special Process Server. The officials
then informed APS that they would not accept a copy and required an
original order endorsed by the district court. The district court
issued the order, which was eventually forwarded to the Irish
authorities.
In a case, like this, with multiple defendants, Rule 54(b) 3
allows a district court to direct entry of a final judgment as to
one or more, but not all, parties “only if the court expressly
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another motion to vacate in the district court, saying that APS,
through a local Irish authority, had served Dr. MacNeill on May 5,
2010. The court denied the motion for lack of jurisdiction.
In sum:
1/12/2007: Dr. MacNeill allegedly treats Santa Encarnacion.
1/18/2007: Santa Encarnacion dies.
1/29/2009: Sobeida Feliz files a complaint in the Essex County
Superior Court claiming in part that Dr. MacNeill’s negligence
contributed to Encarnacion’s death.
4/30/2009: 90 days after filing the complaint, Feliz successfully
moves to extend time for service by 90 days. Feliz attempts to
serve Dr. MacNeill at North Shore Medical Center.
6/12/2009 (approximate): Dr. MacNeill’s lawyers inform Feliz that
MacNeill is a permanent resident of Ireland. [134 days after
complaint filed]
6/22/2009 (approximate): Feliz attempts to serve Dr. MacNeill in
Ireland by certified mail. [144 days]
7/29/2009: Extended period for service expires. [181 days]
8/10/2009: Dr. MacNeill files motion to dismiss. [193 days]
8/21/2009: Feliz hires APS to serve Dr. MacNeill in Ireland. [200
days]
determines that there is no just reason for delay.” The district
court did not make any express findings supporting its entry of
final judgment. Cf. Spiegel v. Trustees of Tufts College, 843 F.2d
38, 43 (1st Cir. 1988) (“If . . . the district court concludes that
entry of judgment under Rule 54(b) is appropriate, it should
ordinarily make specific findings setting forth the reasons for its
order.”). We remanded for the court to supply its reasons for
granting final judgment to Dr. MacNeill, as it did in a nine-page
statement reaffirming its dismissal for failure to effect service
and its denial of Feliz’s motions to vacate. Feliz filed a second
notice of appeal, alleging error in the court’s continued refusal
to vacate its dismissal of the suit against MacNeill. We
consolidated that appeal, with the one from the dismissal itself.
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8/27/2009: Feliz moves for second 90-day extension of time for
service. [210 days]
9/16/2009: Court grants motion for 90-day extension. [230 days]
11/10/2009: United States removes case to the U.S. District Court
for the District of Massachusetts. [285 days]
12/3/2009: APS informs Feliz that Irish authorities require
documentation of APS’s appointment as Special Process Server. [308
days]
12/15/2009: Second extended period for service expires. [320 days]
12/22/2009: Feliz requests an order appointing APS as Special
Process Server, 19 days after learning that Irish authorities
require it. [327 days]
12/29/2009: District court issues the order. [334 days]
1/15/2010: Dr. MacNeill files second motion to dismiss for lack of
service. [351 days]
2/1/2010: District court denies Dr. MacNeill’s motion and awards
Feliz a third extension of time, 45 days, to make service. [368
days]
2/4/2010: After Irish authorities inform APS that an original
version of the order is required and Feliz obtains such an order
from the district court, original order is sent to Irish
authorities. [371 days]
3/18/2010: Extended period for service expires. Feliz moves for a
fourth, 90-day, extension of the service period. [413 days]
3/31/2010: District court denies petition to extend and dismisses
the claims against Dr. MacNeill for failure to effect service. [426
days]
4/27/2010: Feliz files a motion to vacate the dismissal and a
notice of appeal.
5/5/2010: APS (through a local agent) serves Dr. MacNeill in
Ireland. [461 days after complaint filed]
5/6/2010: District court denies the motion to vacate.
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6/18/2010: With the assent of both parties, the court enters a
separate and final judgment as to Dr. MacNeill.
8/10/2010: Feliz files a second motion to vacate the dismissal.
8/26/2010: District court denies the renewed motion.
II
In reviewing the district court’s dismissal of Feliz’s
claims against Dr. MacNeill, we examine the legal conclusions de
novo, Cameron v. Otto Bock Orthopedic Indus., 43 F.3d 14, 16 (1st
Cir. 1994), and applications of the law to the facts for abuse of
discretion, Laurence v. Wall, 551 F.3d 92, 94 (1st Cir. 2008).
For the more than 280 days this case was pending in Essex
County Superior Court, service was governed by Massachusetts Rule
of Civil Procedure 4(j), providing that if “service of the summons
and complaint is not made upon a defendant within 90 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.” Although the
case was eventually removed to federal district court, and the
federal rules governing service of process applied after that, see
28 U.S.C. § 1448; Fed. R. Civ. P. 81(c), removal does not restart
the clock for timely service or keep the district court from
considering a plaintiff’s previous delays, Osborne v. Sandoz
Nutrition Corp., No. 95-1278, 1995 WL 597215 (1st Cir. Oct. 6,
1995) (per curiam); see Morton v. Meagher, 171 F. Supp. 2d 611, 615
(E.D. Va. 2001).
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The federal rules give no specific time limit on service
outside of the United States, see Fed. R. Civ. P. 4(m), but courts 4
have leave to dismiss for failure to serve abroad when a plaintiff
is dilatory, see, e.g., Nylok Corp. v. Fastener World Inc., 396
F.3d 805, 807 (7th Cir. 2005) (“[T]he amount of time allowed for
foreign service is not unlimited.”); Trask v. Service Merchandise
Co., Inc., 135 F.R.D. 17, 22 (D. Mass. 1991) (granting plaintiff 45
days for service in Japan under the Hague Convention). In arriving
at a reasonable limit in a given case, 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.
Dr. MacNeill thus calls this an easy case, even under the
more permissive federal rules. He points out that Feliz did not
resort even to the imprudence of trying to make service abroad by
certified mail within 120 days of filing her complaint, and cites
cases holding that when a plaintiff makes no good-faith attempt at
Rule 4(m) provides: “If a defendant is not served within 120 4
days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for
the failure, the court must extend the time for service for an
appropriate period. This subdivision (m) does not apply to service
in a foreign country . . . .”
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international service within 120 days, Rule 4(m)’s deadline should
be the standard for dismissal, in the absence of good cause. See,
e.g., USHA (India), Ltd. v. Honeywell Int’l, Inc., 421 F.3d 129,
134 (2d Cir. 2005); Allstate Ins. Co. v. Punai Corp., 249 F.R.D.
157, 161-62 (M.D. Pa. 2008). While the record certainly supports
his argument, we need not rely on this point alone to show that
Feliz was as chargeably torpid as the dismissal order implies.
To begin with, so far as the record shows, Feliz did
nothing to attempt service for 90 days, the entire period allowed
under the Massachusetts Rules. Moreover, her counsel should have
known that the first attempt, made by leaving the complaint with a
legal assistant at North Shore Medical Center, was probably
ineffective, as all now agree. And yet she apparently did nothing
at all to find MacNeill or take another stab at service until over
a month and a half later, after MacNeill’s lawyers told Feliz’s
counsel that he had moved to Ireland.
While Feliz did act on that information, her chosen
response (the failed attempt at service by certified mail) was at
best of debatable validity under the Hague Convention, which
applies to foreign service of process on a resident of Ireland.
See Golub v. Isuzu Motors, 924 F. Supp. 324, 327-28 (D. Mass. 1996)
(service by mail is invalid under the Hague Convention). Compare
Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986) (the Hague
convention allows for service by mail), and Borschow Hospital &
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Medical Supplies, Inc. v. Burdick–Siemens Corp., 143 F.R.D. 472
(D.P.R. 1992) (same); with Bankston v. Toyota Motor Corp., 889 F.2d
172 (8th Cir. 1989) (the Hague Convention bars service by mail),
and Cooper v. Makita, U.S.A., Inc., 117 F.R.D. 16 (D. Me. 1987)
(same). Yet for two months after MacNeill’s lawyers informed her
of his whereabouts, she took no other action until she finally
contacted APS in August of 2009, 200 days after she had filed her
complaint. It then took Feliz’s counsel and APS nearly five
additional months to send the proper credentials to the Irish
authorities.
This lackadaisical approach to the litigation is
underscored by the fact that on three occasions Feliz allowed the
then-authorized period for service to expire before so much as
requesting an extension. On April 30, 2009, she sought her first
extension the day the first 90-day period ran out. On the
following July 29th the already-extended service deadline passed,
and it was nearly a month later before Feliz moved for another 90-
day reprieve. This further extension expired on December 15, and
Feliz failed to obtain an extension from the district court until
February 1, 2010, and then only after Dr. MacNeill had again moved
to dismiss and some 47 days had gone by after the period for
service had expired. Feliz was not merely dilatory in serving Dr.
MacNeill; she treated court deadlines as if they meant nothing.
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Despite this record of sluggishness both before and after
removal of the case, on February 1, 2010 the district court granted
Feliz 45 more days to make service, and again she failed to meet
this deadline. When, on March 31, the district court refused a
further extension and dismissed the claims for failure to serve
process, 426 days had passed since the complaint was filed. To be
sure, under the indeterminate federal rule, even a 426-day failure
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. At a general level she invoked the undoubtedly greater
difficulty of service of process in a foreign country, and the
greater time needed to get it done, than domestic service entails,
and her opposition to dismissal recounted some of her difficulties
in certifying APS as a Special Process Server. But she never
explained, for example, why she waited 19 days after APS informed
her that the Irish authorities needed an order appointing APS as a
Special Process Server before she requested such an order from the
district court, and she addressed none of the other delays in any
detail. Nor, at the dismissal hearing, did she give any indication
that APS or any local authority had attempted to serve Dr. MacNeill
or that service was imminent.
When Feliz moved to vacate the dismissal, she submitted
an affidavit from APS saying that making service in Ireland is
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often time-consuming, and supporting her claims about the
difficulty of certifying a Special Process Server. But the
affidavit contained no substantial, new information, and even if it
had, she said nothing to show that she could not have provided the
same affidavit to the court before it ruled on the motion to
dismiss and her final motion for extension of time. See Huertas-
Laboy v. Rodriguez-Gonzalez, No. 90-1968, 1991 U.S. App. LEXIS
10778 (1st Cir. May 3, 1991) (per curiam) (rejecting a process
server’s affidavit accompanying a motion to reconsider, because it
could have been filed before dismissal). The district court
reasonably denied the motion to vacate.
The final events in the sequence are all of a sort with
the rest. APS apparently served Dr. MacNeill in Ireland on May 5,
2010, 461 days after Feliz filed her complaint, and 48 days after
the district court dismissed her claims against MacNeill. Even
then, Feliz sat on her hands and failed to bring the information to
the attention of the district court in her last ditch effort to
save her claims until August 10, 2010, 97 days after the service
took place.
Were anything more needed, it is telling that once APS
had its credentials in hand, on February 4, 2010, it took only 90
days to get approval from the Irish authorities and to serve
process on Dr. MacNeill. If she had attempted service with any
diligence, Feliz probably could have served MacNeill within 120
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days of filing her complaint, within the period of only one
extension of time for good cause under the applicable state rule,
and well outside the zone of danger of dismissal under Federal Rule
4.
Affirmed.
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