First Circuit Ponders How Long Plaintiff Can Take to Serve Overseas Defendant

How much time should a plaintiff get to serve a defendant who has moved overseas? That was the issue before the U.S. Court of Appeals for the First Circuit during oral arguments on March 7. Sobeida Feliz is appealing a March 2010 dismissal of her medical malpractice and wrongful death claims against Dr. Briain MacNeill. Stearns dismissed the case because Feliz did not serve MacNeill with court papers in his native Ireland after several court deadline extensions. In June 2010, Stearns issued a final judgment for MacNeill. In March 2011, Stearns affirmed both rulings.

Feliz filed the suit on behalf of her deceased daughter, Santa Encarnacion, 57, in Massachusetts Superior Court in January 2009. Encarnacion died in January 2007 of brain damage “due to a sustained lack of cerebral blood flow,” according to court records. In addition to MacNeill, Feliz named as defendants Dr. Lawrence Hulefeld and Dr. Tori Robinson. The three doctors treated Encarnacion prior to her death. The United States 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 Hulefeld and Robinson is ongoing.

Too Many Hurdles?

Feliz argues in her First Circuit brief that the Federal Rules of Civil Procedure have not established a fixed deadline for service of process abroad. She also argues that the timing of international service of process under the Hague Convention “is largely beyond a plaintiff's control.” She further argues that she had good cause for the delay in service because she and her agent, the international process service company APS International Ltd., were reasonably diligent.

Feliz alleges that the district court abused its discretion when it dismissed the plaintiff's claims against MacNeill. Despite the plaintiff's lack of control over the foreign service of process, she says in her brief, “service was clearly in progress and had cleared the Irish Central Authority as of the time of Dr. MacNeill's renewed motion to dismiss.”

MacNeill says in his brief that a lawyer for Feliz first attempted to serve him in April 2009 at his former employer, North Shore Medical Center in Salem, MA. That June, MacNeill's attorneys informed Feliz's lawyer that MacNeill was a permanent resident of Ireland. MacNeill notes in his brief that the district court's dismissal came after the plaintiff failed to have the case served over a 440-day period and several Massachusetts Superior Court and district court extensions. He argues that the dismissal was “within the broad discretion of the trial judge, and appropriate as a matter of law.” MacNeill also claims that Feliz could have found him through a Google search and should have learned about the rules for serving him abroad. “Despite her claims, the plaintiff did have control over this process,” he argues in the brief. “Her sluggishness and neglect are directly to blame for the lack of service.”

Judges Michael Boudin and O. Rogeriee Thompson sat on the panel, along with retired U.S. Supreme Court Justice David Souter, who heard the case by designation.

What the Outcome Could Mean for Others

The appeal has implications beyond this case, “because your decision will instruct the district courts on how their approach to dismissal for insufficient service of process will be handled” in Hague Convention cases, Feliz's lawyer, Adam Satin of Boston-based Lubin & Meyer, argued.

Justice Souter asked Satin to explain the gap between Feliz's June 2009 knowledge that MacNeill was in Ireland and the December 2009 district court motion seeking an order to have APS appointed as a special process server. Satin said Feliz and her lawyer acted “immediately after hearing from APS that it was required by the Central Authority [of Ireland].” According to Feliz's brief, APS sent a formal request to serve MacNeill to the Central Authority under the conditions of the Hague Convention. “The process was out of our control,” Satin said. “The Central Authority had to clear the service process to be sent to the local authority.”

Judge Thompson asked Satin to explain why the first papers to serve MacNeill were left with what turned out to be his former employer. Satin said doctors are commonly served at their place of employment in medical malpractice. “The sheriff believed he was delivering the summons to an agent authorized to accept it,” he said.

Satin said Feliz immediately started a new process to get MacNeill served once she learned he was in Ireland. “Once it goes to APS, the situation is largely out of not only the plaintiff's control, not only our control, but even APS's control,” Satin said.

MacNeill's lawyer, Joshua Walls, a Boston associate at Taylor Duane Barton & Gilman, argued that there are a whole line of cases that stand for the proposition that plaintiffs don't have an unlimited period of time to serve a case internationally: “The court recognizes that there's a need for judges to control the flow of their dockets for case management purposes, and international service is not unlimited,” Walls said. Judge Souter asked Walls to address Satin's point that Feliz had no reason to believe initially that she needed a court order that formally appointed APS as a special process server. “The only way they would know is when APS came back and said we're not going to be recognized [without that],” Souter said.

Walls replied that his point is that there was a lack of diligence on the plaintiff's side. Thompson observed to Walls that the first entry that pops up in Google shows MacNeill practicing in Massachusetts. Walls said he “can't speak to that entry,” but the Board of Registration in Medicine in Massachusetts shows MacNeill's license lapsing in August 2007; publications list him as practicing in Ireland; and the plaintiff waited two months to retain APS after learning from the defense that MacNeill was in Ireland. “There comes a time when a district court judge is permitted to exercise his broad discretion or her broad discretion and say enough is enough,” Walls said.

During his rebuttal period, Satin said the overwhelming number of cases cited by the defendant involve situations in which no attempts were made to serve the defense. “We were operating under an appropriate and granted extension of time by the Superior Court,” Satin said. “The attempt was made. We acknowledge at this point that attempt was unsuccessful [but] it's not about delay; it's about what happened in the process.”

After the hearing, Walls said an increased level of attention would need to be paid to service of process as people become increasingly mobile in the 21st century. “Because there is only a finite period of time to effectuate service, plaintiffs must be proactive and diligent about locating those they intend to sue, or run the risk of dismissal,” Walls said. “Our case has the potential for being a beacon on this issue, providing practitioners on both sides of the bar with a more concrete sense of what is and is not sufficient when it comes to fulfilling their service obligations.”

Sheri Qualters can be contacted at [email protected]. This article also appeared in The National Law Journal, an ALM sister publication of this newsletter.

How much time should a plaintiff get to serve a defendant who has moved overseas? That was the issue before the U.S. Court of Appeals for the First Circuit during oral arguments on March 7. Sobeida Feliz is appealing a March 2010 dismissal of her medical malpractice and wrongful death claims against Dr. Briain MacNeill. Stearns dismissed the case because Feliz did not serve MacNeill with court papers in his native Ireland after several court deadline extensions. In June 2010, Stearns issued a final judgment for MacNeill. In March 2011, Stearns affirmed both rulings.

Feliz filed the suit on behalf of her deceased daughter, Santa Encarnacion, 57, in Massachusetts Superior Court in January 2009. Encarnacion died in January 2007 of brain damage “due to a sustained lack of cerebral blood flow,” according to court records. In addition to MacNeill, Feliz named as defendants Dr. Lawrence Hulefeld and Dr. Tori Robinson. The three doctors treated Encarnacion prior to her death. The United States 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 Hulefeld and Robinson is ongoing.

Too Many Hurdles?

Feliz argues in her First Circuit brief that the Federal Rules of Civil Procedure have not established a fixed deadline for service of process abroad. She also argues that the timing of international service of process under the Hague Convention “is largely beyond a plaintiff's control.” She further argues that she had good cause for the delay in service because she and her agent, the international process service company APS International Ltd., were reasonably diligent.

Feliz alleges that the district court abused its discretion when it dismissed the plaintiff's claims against MacNeill. Despite the plaintiff's lack of control over the foreign service of process, she says in her brief, “service was clearly in progress and had cleared the Irish Central Authority as of the time of Dr. MacNeill's renewed motion to dismiss.”

MacNeill says in his brief that a lawyer for Feliz first attempted to serve him in April 2009 at his former employer, North Shore Medical Center in Salem, MA. That June, MacNeill's attorneys informed Feliz's lawyer that MacNeill was a permanent resident of Ireland. MacNeill notes in his brief that the district court's dismissal came after the plaintiff failed to have the case served over a 440-day period and several Massachusetts Superior Court and district court extensions. He argues that the dismissal was “within the broad discretion of the trial judge, and appropriate as a matter of law.” MacNeill also claims that Feliz could have found him through a Google search and should have learned about the rules for serving him abroad. “Despite her claims, the plaintiff did have control over this process,” he argues in the brief. “Her sluggishness and neglect are directly to blame for the lack of service.”

Judges Michael Boudin and O. Rogeriee Thompson sat on the panel, along with retired U.S. Supreme Court Justice David Souter, who heard the case by designation.

What the Outcome Could Mean for Others

The appeal has implications beyond this case, “because your decision will instruct the district courts on how their approach to dismissal for insufficient service of process will be handled” in Hague Convention cases, Feliz's lawyer, Adam Satin of Boston-based Lubin & Meyer, argued.

Justice Souter asked Satin to explain the gap between Feliz's June 2009 knowledge that MacNeill was in Ireland and the December 2009 district court motion seeking an order to have APS appointed as a special process server. Satin said Feliz and her lawyer acted “immediately after hearing from APS that it was required by the Central Authority [of Ireland].” According to Feliz's brief, APS sent a formal request to serve MacNeill to the Central Authority under the conditions of the Hague Convention. “The process was out of our control,” Satin said. “The Central Authority had to clear the service process to be sent to the local authority.”

Judge Thompson asked Satin to explain why the first papers to serve MacNeill were left with what turned out to be his former employer. Satin said doctors are commonly served at their place of employment in medical malpractice. “The sheriff believed he was delivering the summons to an agent authorized to accept it,” he said.

Satin said Feliz immediately started a new process to get MacNeill served once she learned he was in Ireland. “Once it goes to APS, the situation is largely out of not only the plaintiff's control, not only our control, but even APS's control,” Satin said.

MacNeill's lawyer, Joshua Walls, a Boston associate at Taylor Duane Barton & Gilman, argued that there are a whole line of cases that stand for the proposition that plaintiffs don't have an unlimited period of time to serve a case internationally: “The court recognizes that there's a need for judges to control the flow of their dockets for case management purposes, and international service is not unlimited,” Walls said. Judge Souter asked Walls to address Satin's point that Feliz had no reason to believe initially that she needed a court order that formally appointed APS as a special process server. “The only way they would know is when APS came back and said we're not going to be recognized [without that],” Souter said.

Walls replied that his point is that there was a lack of diligence on the plaintiff's side. Thompson observed to Walls that the first entry that pops up in Google shows MacNeill practicing in Massachusetts. Walls said he “can't speak to that entry,” but the Board of Registration in Medicine in Massachusetts shows MacNeill's license lapsing in August 2007; publications list him as practicing in Ireland; and the plaintiff waited two months to retain APS after learning from the defense that MacNeill was in Ireland. “There comes a time when a district court judge is permitted to exercise his broad discretion or her broad discretion and say enough is enough,” Walls said.

During his rebuttal period, Satin said the overwhelming number of cases cited by the defendant involve situations in which no attempts were made to serve the defense. “We were operating under an appropriate and granted extension of time by the Superior Court,” Satin said. “The attempt was made. We acknowledge at this point that attempt was unsuccessful [but] it's not about delay; it's about what happened in the process.”

After the hearing, Walls said an increased level of attention would need to be paid to service of process as people become increasingly mobile in the 21st century. “Because there is only a finite period of time to effectuate service, plaintiffs must be proactive and diligent about locating those they intend to sue, or run the risk of dismissal,” Walls said. “Our case has the potential for being a beacon on this issue, providing practitioners on both sides of the bar with a more concrete sense of what is and is not sufficient when it comes to fulfilling their service obligations.”

Sheri Qualters can be contacted at [email protected]. This article also appeared in The National Law Journal, an ALM sister publication of this newsletter.