Kreis v. Boca Chica Resort

• Court: District Court, D. New Hampshire
• Decided: October 28, 1996
• Docket: CV-94-151-SD
• Status: Published

Opinion

Kreis v . Boca Chica Resort CV-94-151-SD 10/28/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jennifer Kreis; Kenneth Kreis

v. Civil N o . 94-151-SD

Boca Chica Resort

O R D E R

Arising from an alleged accident on hotel premises in the Dominican Republic, this case has foundered because of plaintiffs’ inability to complete service of process.1 It appears once more on a motion to reopen, requesting recognition of validity of service o r , alternatively, the allowance of service by certified mail. Document 1 3 .

Affixed to the motion is a document which indicates that on August 2 , 1996, a process server retained by the plaintiffs made service upon one Martha Gomez, described as the “human resources manager” of the defendant corporation. Plaintiffs suggest this

1 Originally filed on March 2 9 , 1994, the case, following two extensions of time for completion of service, was dismissed without prejudice on May 1 , 1996, pursuant to Rule 4 ( m ) , Fed. R. Civ. P. Document 8 . Plaintiffs’ first motion for reconsideration was denied on June 5 , 1996. Document 1 1 . method of service is sufficient pursuant to Rule 4(f)(2)(C)(i),

Fed. R. Civ. P.

Plaintiffs are mistaken. The provisions of Rule

4(f)(2)(C)(i) are “restricted to individual defendants, however.

Under the 1993 provision, this clause does not apply to corporate

or associate defendants, see Rule 4(h)(2), even though personal delivery to corporate officers and agents is allowed in domestic

cases . . . .” Siegel, The New (December 1, 1993) Rule 4 of the

Federal Rules of Civil Procedure: Changes in Summons, Service and

Personal Jurisdiction, 151 F.R.D. 4 4 1 , 463 (hereinafter Siegel). 2

Turning to the plaintiffs’ suggestion of the alternative of mailing, although uncited by counsel, Rule 4(f)(2)(C)(ii) permits service by medium of “any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served.” Again, this method is allowable “only if mail service is not prohibited by the nation involved.” Siegel at 463.

Presumably, plaintiffs’ counsel has so familiarized himself with Dominican law to permit the court to infer that any mail forwarded by the clerk of this court as required by Rule

2 The quoted language from Professor Siegel’s paper may also be found in Title 2 8 , Fed. R. Civ. P., Rules 1-11, United States Code Annotated (1996 Pocket Part at 6 9 ) .

2 4(f)(2)(C)(ii) would be receipted for, signed, and returned. On such inference, the court herewith conditionally grants the motion to reopen, provided that plaintiffs prepare and deliver the documents to be addressed and dispatched by the clerk of the court to the office of the clerk of the court within 20 days of the date of this order. SO ORDERED.

Shane Devine, Senior Judge United States District Court October 2 8 , 1996 Craig F. Evans, Esq.