Opinion
No. EP-04-CA-390-PRM.
October 11, 2005
ORDER DENYING PLAINTIFF'S MOTION FOR ALTERNATIVE SERVICE AND ORDER TO SHOW CAUSE
On this day, the Court considered Plaintiff Arrow Electronics Inc.'s ("Plaintiff") "Motion for Alternative Service" ("Motion"), filed on June 8, 2005 in the above-captioned cause. After due consideration, the Court is of the opinion that Plaintiff's Motion should be denied. In addition, the Court is of the opinion that Plaintiff must show cause, on or before October 25, 2005, why Defendant Hector Fierro ("Fierro") should not be dismissed from the above-captioned cause for failure to prosecute.
I. Procedural History
On October 14, 2004, Plaintiff filed its complaint with the District Clerk. For over seven months, Plaintiff failed to provide the Court with proof of service of the summons and complaint for Fierro as required by the Federal Rules of Civil Procedure ("FRCP"). Therefore, on May 25, 2005, the Court issued an order ("Show Cause Order") requiring Plaintiff to show cause by June 9, 2005 why Fierro should not be dismissed from the suit pursuant to FRCP 4(m). On June 8, 2005, Plaintiff filed its "Response to Show Cause Order" ("Response") and its Motion. The Response and Motion informed the Court for the first time that Plaintiff was having difficulty serving Fierro because he "is a resident" of Mexico. Pl.'s Mot. ¶ 2. However, Plaintiff had been aware of Fierro's residence status since October 15, 2005, nearly eight months prior to the Motion and Response. App. to Pl.'s Mot., Cervantes Aff.
FRCP 4(m) places a 120 day time limit on service of process from the filing of the complaint. FED. R. CIV. P. 4(m). Under FRCP 4(m), service of process was due upon Fierro on or before February 11, 2005.
II. Motion For Alternative Service
Plaintiff now moves the Court to order alternative service on Fierro by serving Jerry Wallace ("Wallace"), attorney of record for Hecmma, Inc. ("Hecmma") and Maya Electronic Systems, Inc. This request is premised on the assumption that Wallace is, in fact, Fierro's attorney. The record is silent concerning who represents Fierro in his individual capacity because he has not made an appearance before the Court. Plaintiff argues that Wallace constructively appeared before the Court on behalf of Fierro when Wallace argued that Fierro was included in an offer of judgment against Hecmma. The Court is not persuaded by this argument. Plaintiff has not provided sufficient evidence or authority for the Court to make a finding that Wallace is the attorney or agent of Fierro.
In the alternative, Plaintiff moves the Court to order service on Fierro by serving the Texas Secretary of State pursuant to the Texas long-arm statute and FRCP 4(e), the rule that allows service according to the law of the forum state. However, FRCP 4(e) by its stated terms applies to "service upon individuals within a judicial district of the United States." FED. R. CIV. P. 4(e). Because Fierro resides in Mexico and Plaintiff fails to establish any other proper recipient of service on Fierro's behalf located in the United States, FRCP 4(e) does not apply.
Therefore, both of Plaintiff's requested forms of service are improper and Plaintiff's Motion should be denied.
III. Order to Show Cause
Service on an individual in a foreign country is governed by FRCP 4(f). FED. R. CIV. P. 4(f). Although FRCP 4 does not establish a specific amount of time for service on an individual in a foreign country, it is well established that a court has the inherent power to "manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962); Williams v. New Orleans Pub. Serv., Inc., 728 F.2d 730, 732 n. 4 (5th Cir. 1984).
FRCP 4(m) states that the 120 day time limit does not apply to service in a foreign country, which is governed by FRCP 4(f). FED. R. CIV. P. 4(m). The Fifth Circuit has not addressed the breadth of FRCP 4(m)'s foreign service exemption. Other circuit courts have addressed the issue without concensus. See, e.g., Lucas v. Natoli, 963 F.2d 432, 433 (9th Cir. 1991) (holding that there is no time limit for foreign service under the unambiguous language of FRCP 4(m)); Montalbano v. Easco Hand Tools, Inc., 766 F. 2d 737, 740 (2d Cir. 1985) (holding that the exemption from the 120 day time limit for service in a foreign country does not apply if a plaintiff fails to attempt service in the foreign country); Pabst Licencing GmbH Co. KG v. Sunonwealth Elec. Mach. Ind. Co., 332 F.Supp.2d 1142, 1151 (N.D. Ill. 2004) (holding that the 120 day time limit does not apply and applying a "'flexible due diligence standard to determine whether service of process was timely'" (quoting Standard Commercial Tobacco Co. v. Mediterranean Shipping Co., No. 94 Civ 7040, 1995 WL 753901, at *1 (S.D.N.Y. Dec. 19, 1995))).
Between October 14, 2004 and December 9, 2004, Plaintiff attempted to serve Fierro seven times in El Paso, Texas. Plaintiff learned on October 15, 2004 that Fierro was not in El Paso; rather, he was living in Mexico. The Court notes that Plaintiff has not demonstrated any attempts to serve Fierro since December 2004. The Court further notes that Plaintiff has not demonstrated that he has ever attempted to serve Fierro in Mexico. Other than filing its Response and its Motion on June 8, 2005, which were prompted by the Court's Show Cause Order, Plaintiff has made no other efforts to serve Fierro. Plaintiff's filing of the Motion did not postpone its responsibility to continue to diligently pursue service on Fierro. In addition, the Court is troubled that Plaintiff failed to bring the service problems to the Court's attention until pressed to do so by the Court's Show Cause Order, over seven months after Plaintiff became aware of Fierro's location. The Court should not have to solicit this information.
FRCP 4(f) instructs that service in a place outside of the United States may be effected pursuant to any internationally agreed means, including the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents ("Hague Convention"). FED. R. CIV. P. 4(f)(1). Mexico is a signatory to the Hague Convention. Alternative Delivery Solutions, Ind. v. R.R. Donnelley Sons Co., No. Civ. SA 05CA0172-XR, 2005 WL 1862631, at *2 (W.D. Tex. July 8, 2005). However, Plaintiff has not availed itself of the Hague Convention by serving process on the Central Authority designated by Mexico for receipt of service.
Given the need of the Court to manage its own docket, the fact that Plaintiff has had nearly a year to effect service on Fierro, Plaintiff's failure to pursue avenues available to it to serve Fierro without Court assistance, Plaintiff's failure to bring the current service issues to the Court's attention in a timely fashion, and Plaintiff's failure to fashion an appropriate mode of alternative service for the Court's consideration, the Court is of the opinion that Plaintiff must show cause, on or before October 25, 2005, why Fierro should not be dismissed from this case for failure to prosecute.
Accordingly, IT IS ORDERED that Plaintiff's Motion for Alternative Service should be DENIED. IT IS FURTHER ORDERED that on or before October 25, 2005, Plaintiff SHOW CAUSE why Defendant Hector Fierro should not be dismissed from the above-captioned cause for failure to prosecute.