Opinion
22 Civ. 770 (PAE)
05-18-2022
REMCODA, LLC, Plaintiff, v. DAVID SUMNER, SUMNER GROUP HEALTH LTD., ENCORP SWITZERLAND AG, Defendants.
ORDER
PAUL A. ENGELMAYER, District Judge:
The Court has received plaintiffs response, at Dkt 50, to its order to show cause, Dkt. 49. In its response, plaintiff argues that the defendants in this action are alleged to be foreign citizens, that Rule 4(m) generally requires that defendants must be served within 90 days of filing the complaint, but that, for foreign defendants, courts use a flexible due diligence standard in determining whether service was timely. Dkt. 49 (citing Astor Chocolate Corp. v. Elite Gold Ltd., 510 F.Supp.3d 108, 123 (S.D.N.Y. 2020)). This exception, however, “does not apply if. . . the plaintiff did not attempt to serve the defendant [that resides] in the foreign country.” Astor Chocolate, 510 F.Supp.3d at 123 (alterations inUvtor Chocolate). Until filing its response, plaintiff had not made a showing of such attempts. See Dkt. 49 Exs. A-E.
The Court finds that plaintiff has attempted service on all three defendants, that the exception to Rule 4(m) applies, and that plaintiff has made a sufficient showing of due diligence. The Court directs plaintiff, by July 15, 2022, to file a letter providing a status update as to plaintiff's efforts to serve, should service of all three defendants not have been effected by then.
SO ORDERED.