The case of the day is Feliz v. MacNeill (1st Cir. 2012). The decision is by Justice Souter, who sometimes sits by designation on First Circuit panels.
Dr. Briain MacNeill, a physician, treated Santa Encarnacion a few days before her death, and her administratrix, Sobeida Feliz, sued him for medical malpractice. Feliz sued in the Essex County Superior Court. Under Massachusetts law, the plaintiff has ninety days from the commencement of the action to effect service of process. On the ninetieth day, Feliz sought and received a ninety-day extension of time. That day, her process server served the summons and complaint on an assistant to the general counsel at a hospital where MacNeill used to work, but by then Dr. MacNeill no longer worked at the hospital and in fact had moved to Galway, Ireland.
Dr. MacNeill’s lawyers informed Feliz’s lawyers of the doctor’s new residence, though they declined to accept service on his behalf. Feliz tried unsuccessfully to serve Dr. MacNeill via certified mail in Ireland, and she hired APS International, Ltd., an “international process service company”, to make service in Ireland. APS sent a request for service to the Irish central authority under Article 5 of the Hague Service Convention. But after the extended period for service expired, Dr. MacNeill moved to dismiss. Feliz then sought another ninety-day extension, which the court granted, though the court set a hearing on the motion to dismiss. Two days before the hearing—service of process still having not been made—the case was removed by another defendant to the District Court. When the second ninety-day period for service expired, MacNeill again moved to dismiss, this time in the federal court. Feliz opposed the motion on the grounds that there had been some delay, as the Irish authorities questioned the authority of APS to request service of process and required Feliz to obtain and send a court order appointing APS as special process server. The court granted Feliz an additional forty-five days on top of the forty-seven days that had already passed since the expiration of the second ninety-day period. When that ninety-day period expired, Feliz sought another ninety days, and MacNeill moved to dismiss. The judge had had enough—he dismissed the claim against MacNeill. The dismissal was with prejudice, probably because of the statute of limitations. Feliz sought to vacate the order, submitting an affidavit from a representative of APS explaining the chronology of what had occurred and the difficulties that can arise when seeking to serve process under the Hague Service Convention, but the judge curtly denied the motion, saying only: “Plaintiff was given more than ample time to effect service.”
Remind me—why do lawyers hire “international process service companies” again?
Justice Souter found that the dismissal was within the judge’s discretion. Feliz did not even attempt service until the last day of the period for service under Massachusetts law. While the case was removed to federal court thereafter, the court was still entitled to consider her earlier delays. While FRCP 4(m), with its 120-day limit, does not apply on its face in foreign service of process cases, judge have the power to dismiss cases where plaintiffs are unduly dilatory in effecting service. Moreover, Feliz made no efforts at service in Ireland within 120 days, and Justice Souter noted authority for the proposition that the 120-day limit does apply where the plaintiff does not even attempt service within that period.
The only sour note in this decision is Justice Souter’s observation that when Feliz finally did attempt service, the method she chose—service by mail—was “at best of debatable validity under the Hague Convention.” He cited the Golub case—the District of Massachusetts decision holding that Article 10(a) of the Convention does not permit service of process by mail—though he did note that other courts held to the contrary. I regret this portion of the decision, because it could have the effect of giving some vitality to Golub and similar holdings. In my view the better reasoned cases say that Article 10(a) does permit service by mail. The contrary argument, which relies on the use of the word “send” instead of “serve” in the relevant provision, is a distinctly American phenomenon. Courts elsewhere say, and the expert consensus is, that Article 10(a) should be read to permit service by mail.