Opinion
22 Civ. 3412 (PGG) (JLC)
07-29-2022
ANGEL RAMON MARTINEZ, Plaintiff, v. MILTON BENITEZ (a/k/a "El Perro Amarillo”) and LUIS REDONDO (a/k/a “La Pauta”), Defendants.
ORDER
PAUL G. GARDEPHE, U.S.D.J.
The Complaint in this pro se case was filed on April 27, 2022. (Cmplt. (Dkt. No. 1)) According to the Complaint, Defendants are citizens of Honduras. (Id. ¶¶ 5-6) The Defendants have not been served, and they have not appeared.
Fed. R. Civ. P. 4(m) provides that “[i]f a defendant is not served within 90 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.” While that provision states that the 90-day time limit does not apply to service in a foreign country under Rule 4(f) or 4(j)(1), see Fed.R.Civ.P. 4(m), “a plaintiff does not have unlimited time to serve a defendant in a foreign country,” Yellowave Corp, v. Mana, No. 00 CIV. 2267 SAS, 2000 WL 1508249, at *2 (S.D.N.Y. Oct. 11, 2000) (citation omitted). “Rather, where service is in a foreign country, the Court uses a flexible due diligence standard to determine whether service of process [i] s timely.” Id., (quotation marks and citation omitted). However, Rule 4(m)'s time limit “is appropriate where [a] plaintiff has not even attempted service in the foreign country.” Id. (citations omitted).
Here, there is no indication that Plaintiff has attempted to serve Defendants in Honduras. Accordingly, by August 25, 2022, Plaintiff will submit a letter describing his efforts to serve Defendants, and show cause why this case should not be dismissed for failure to prosecute.
SO ORDERED.