Case of the Day: Lozano v. Bosdet

Elvis PresleyThe case of the day is Lozano v. Bosdet (5th Cir. 2012). Gloria Lozano, a Mississippian, was a passenger in an auto accident. Her car was struck by a truck driven by Julie Bosdet. The truck was owned by Enterprise, the car rental firm, which had leaded it to Jennifer and Glen Parry, the owners of the Gracepines bed and breakfast in Horn Lake, Mississippi. Gracepines “caters to tourists interested in Elvis Presley, as Horn Lake is a short distance from Memphis where the Mississippi native moved as a teenager and would find some musical success.” The accident report stated that Bosdet lived in Ontario, and Lozano believed that the Parrys lived in England.

Within 120 days of the filing of the complaint, Lozano sought to serve process on Bosdet by mail, and she inquired at Gracepines and was told that the Parrys were traveling but would return to Mississippi within a few months. The service by mail was unsuccessful—it turned out that Bosdet was living in England, too. After 120 days, Lozano sought and received an additional 120 days, and when that time expired, Lozano sought another 120 days but received only 30. At the end of the 30 days, the magistrate judge dismissed the case without prejudice, though because of the statute of limitations it was likely the dismissal would be fatal to Lozano’s claims. Lozano appealed. The question was: how much time does a plaintiff have to effect service of process on a defendant abroad? The question arises because FRCP 4(m), the rule governing the time for service of process, expressly does not apply in cases of service abroad.

The Fifth Circuit began by reviewing the other circuits’ standards. At one extreme, the Ninth Circuit has held that there is no requirement that the plaintiff even attempt service within 120 days. Lucas v. Natoli, 936 F.2d 432 (9th Cir. 1991). At the other extreme, the Second Circuit imposes a requirement that the plaintiff at least attempt service on the defendant in the foreign country within the 120 days. The Fifth Circuit, following what it took to be the rule in the First, 1 Third, and Seventh Circuits, adopted a “flexible due diligence” standard that did not absolutely require an attempt at service abroad within the 120 days if the plaintiff was sufficiently diligent.

Because the dismissal was, in light of the statute of limitations, likely case-determinative, the court did not decide whether the judge’s decision would have passed muster in a true “dismissal without prejudice” case, but rather applied the stricter test used in “dismissal with prejudice” cases. Because there was no evidence that the delay was caused by Lozano rather than her lawyers, there was no actual prejudice, and the plaintiff made some efforts to effect service, the court reversed the judgment and remanded.

Photo credit: Metro-Goldwyn-Mayer, Inc. / Library of Congress

Notes:

  1. We covered the First Circuit’s decision in Feliz v. MacNeill just a few days ago. Kudos to the judges’ law clerks for keeping up with the law in this area on very short notice!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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