Kaiser v. Alexander Marine USA

• Court: District Court, M.D. Florida
• Decided: April 7, 2023
• Docket: 6:23-cv-00108
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

JAY KAISER,

Plaintiff,

v.

ALEXANDER MARINE USA; Case No. 6:23-cv-108-RBD-RMN ALEXANDER MARINE CO. LTD.; MERRITT ISLAND BOAT WORKS, INC.; EASTCOAST YACHT GROUP; and ALEXANDER MARINE ENTERPRISES, INC.,

Defendants.

ORDER This cause came on for consideration without oral argument on the following motion: MOTION: Plaintiff’s Motion for an Extension of Time to Effect Service on Alexander Marine Co. Ltd. (Dkt. 36) FILED: April 7, 2023 It is ORDERED that the Motion (Dkt. 36) is GRANTED.

Plaintiff, Jay Kaiser, moves for an order extending his deadline to serve a summons and the complaint on Alexander Marine Co. Ltd. Dkt. 36. Plaintiff has served all Defendants except Alexander Marine Co. Ltd. See id. ¶ 3. It has not served Alexander Marine Co. Ltd. because that company is a foreign corporation. Id. Though Plaintiff is endeavoring to perfect service, it

has not done so yet because it must translate the complaint and attachments. Id. Defendants that have appeared take no position on the motion because they interpret Federal Rule of Civil Procedure 4(m) to not apply to service on foreign corporations. Id. at 3–4.

Here, Plaintiff moved for additional time in an abundance of caution. While the service limit imposed by Rule 4(m) “does not apply to service in a foreign country under Rule 4(f)” Fed. R. Civ. P. 4(m), the time allowed “for accomplishing foreign service is not unlimited, as district courts must retain

the ability to control their dockets.” 12B Fed. Practice & Procedure, Civil Rules, Quick Reference Guide, at 79 (Thomson Reuters 2022) (citing Nylok Corp. v. Fastener World Inc., 396 F.3d 805, 807 (7th Cir. 2005), among other authorities). Indeed, “[s]ome courts have conditioned this foreign service

‘exemption’ upon a showing that good faith attempts were made to serve within the 90-day period; if no such attempts were made, these courts hold that the exemption will not apply and the passage of 90 days can justify a dismissal.” Id. (citing USHA (India), Ltd. v. Honeywell Intern., Inc., 421 F.3d

129, 134 (2d Cir. 2005), and Allstate Ins. Co. v. Funai Corp., 249 F.R.D. 157 (M.D. Pa. 2008)). Other courts—including a panel of the Eleventh Circuit in an unpublished (and therefore nonprecedential) opinion—“have applied a more encompassing ‘flexible due diligence’ standard to decide if a post-90 day foreign service ought to be allowed.” Jd. (citing Harris v. Orange S.A., 636 F. App’x 476, 485-86 (11th Cir. 2015), and Lozano v. Bosdet, 693 F.3d 485, 488— 89 (5th Cir. 2012)).1 In view of the need for additional time to translate the complaint and its attachments, as well as Plaintiff's diligence in performing the tasks

necessary to serve Alexander Marine Co. Ltd., the Court finds that Plaintiff has established good cause to extend the service deadline. Thus, even if the Court were to construe the Rule 4 to apply a flexible due diligence standard to service on a foreign corporation, Plaintiff have satisfied that standard. Accordingly, it is ORDERED: 1. The Motion (Dkt. 36) is GRANTED; and 2. Plaintiff shall serve the complaint, its attachments, and

summons on Alexander Marine Co. Ltd. on or before June 5, 2023. DONE and ORDERED in Orlando, Florida, on April 7, 2024.

db ROBERT M. NORWAY United States Magistrate Judge

! As noted in Harris, the Eleventh Circuit has not “held in a published decision whether or what time constraints apply to service on foreign defendants.” 636 F. App’x at 485.

3.

Copies furnished to:

Counsel of Record