The case of the day is A Love of Food I, LLC v. Maoz Vegetarian USA, Inc. (D. Md. 2011). Maoz, a Delaware corporation with its principal place of business in New York, sold franchises for “quick-service” vegetarian restaurants in the United States. A Love Of Food was one of the franchisees, operating a restaurant in Washington, DC. ALOF brought claims for violations of the Maryland and New York franchise statutes and fraud in the inducement. The defendants were Maoz itself and two of its officers, Yair Marinov and Boaz Schweitzer. Marinov and Schweitzer lived in Israel. Shortly after the issuance of summonses, their counsel wrote to ALOF’s counsel and informed him that the two lived in Israel and that service “must be made upon them in Israel solely in accordance with the Hague Service Convention.” ALOF’s counsel nevertheless sought to serve them at Maoz’s offices in New York, and the return of service indicated that the process server had not made service on them. Despite this failure to make service, ALOF made no further efforts at service of process for nearly a year.
Marinov and Schweitzer moved to dismiss for insufficient service of process. There was no real issue about whether the two had been properly served. Rather, the issue was whether the case against them should be dismissed because ALOF had failed to make service within a reasonable time. By way of background, Rule 4(m) provides a 120-day limit for service of process, but the rule expressly does not apply to service on an individual in a foreign country. Nonetheless, as the judge recognized, the courts have imposed some obligation of diligence on plaintiffs. In Nylock Corp. v. Fastener World Inc., 396 F.3d 805 (7th Cir. 2005), for example, the court suggested that it might be appropriate to dismiss a case where, as here, the plaintiff did not even begin the process of service of process abroad until the 120-day period had run. ALOF argued that the was no prejudice to the individual defendants, but the judge cited MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086 (3d Cir. 1995), for the proposition that lack of prejudice cannot excuse late service if the plaintiff did not even attempt service with the 120-day period (but note that MCI did not involve foreign service).