Osborne v. Sandoz Nutrition

Procedural entryThis page is a short order in Osborne v. Sandoz Nutrition. Read the opinion of the Court — 67 F.3d 289 →

Court of Appeals for the First Circuit·Decided October 6, 1995·No. 95-1278·Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-1278

MARY OSBORNE,

Plaintiff - Appellant,

v.

SANDOZ NUTRITION CORP.,

Defendant - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge] __________________________

____________________

Before

Torruella, Chief Judge, ___________

Aldrich and Coffin, Senior Circuit Judges. _____________________

_____________________

Kevin M. Walkowski, with whom Matthew J. Ryan, Jr., Michael __________________ ____________________ _______
K. Callan and Doherty, Wallace, Pillsbury & Murphy, P.C. were on __________ __________________________________________
brief for appellant.
Thomas J. Scannell, with whom Bowditch & Dewey was on brief ___________________ ________________
for appellee.

____________________

October 6, 1995
____________________

Per Curiam. Plaintiff-Appellant, Mary Osborne Per Curiam. ____________

("Osborne"), appeals the district court's dismissal of her

complaint for insufficient service of process. For the reasons

stated below, we affirm.

BACKGROUND BACKGROUND __________

Osborne brought a personal injury suit in Hampden

County Superior Court for the Commonwealth of Massachusetts on

August 30, 1994 against defendant-appellee, Sandoz Nutrition

Corporation ("Sandoz"). Osborne failed to comply with

Massachusetts Rule of Civil Procedure 4(j), which required her to

effect service of her complaint within 90 days from the date of

filing (i.e., on or before November 28, 1994), and mandated

dismissal unless she showed good cause for untimely service. On

November 30, 1994, Osborne filed with the state court an

Emergency Motion to Extend Tracking Order to Allow Service of

Process ("Emergency Motion"), which defendant opposed. Osborne

completed service of process on Sandoz on December 29, 1994, one

month after the deadline and with the Emergency Motion still

pending. On January 13, 1995, the action was removed upon

Sandoz' motion, pursuant to 28 U.S.C. 1332 and 28 U.S.C.

1441, to the United States District Court for the District of

Massachusetts. On January 23, 1995, Sandoz moved to dismiss,

asserting insufficient service of process pursuant to

Massachusetts law.

The district court granted Sandoz' motion to dismiss.

The district court reasoned that, under Federal Rule of Civil

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Procedure 81(c), Massachusetts Rule of Civil Procedure 4(j)

applies relative to the time frame for effectuating service of

process, and that, under Massachusetts case law, Osborne failed

to show good cause for failure to serve process in a timely

manner. Final judgment was entered on March 6, 1995, and Osborne

filed this appeal on March 9, 1995.

On appeal, Osborne contends that 28 U.S.C. 1448

mandates application of Federal Rule of Civil Procedure 4(m)

(which provides Osborne with 120 days to effect service of

process from the date of removal) and that, even if Massachusetts

Rule of Civil Procedure 4(j) applies, Osborne can demonstrate

good cause for the delay in service of process.

DISCUSSION DISCUSSION __________

The district court's decision as to which procedural

rule applies is a question of law subject to plenary review. See ___

New Hampshire Ball Bearings v. Aetna Casualty and Surety Co., 43 ____________________________ _____________________________

F.3d 749, 752 (1st Cir. 1995); LoVuolo v. Gunning, 925 F.2d 22, _______ _______

25 (1st Cir. 1991). We view this appeal as involving the

straightforward application of state procedural law regarding

service of process prior to removal to federal court. The

district court correctly applied state procedural law prior to

removal because state law governs the service of process prior to

removal to the district court. Fed. R. Civ. P. 81(c). See ___

Winkels v. George A. Hormel & Co., 874 F.2d 567, 570 (8th Cir. _______ _______________________

1989); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168 ________ ___________________________

-3-

(3d Cir. 1976). See also Garden Homes, Inc. v. Mason, 238 F.2d ________ ___________________ _____

651, 653 (1st Cir. 1956).

In this respect, we reject Osborne's contention that 28

U.S.C. 1448, which governs procedure only after removal to

federal court, mandates application of Federal Rule of Civil

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USCA1 Opinion




[NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________



          No. 95-1278



                                    MARY OSBORNE,



                                Plaintiff - Appellant,



                                          v.



                               SANDOZ NUTRITION CORP.,



                                Defendant - Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. Frank H. Freedman, Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                      Aldrich and Coffin, Senior Circuit Judges.
                                          _____________________



                                _____________________



               Kevin M. Walkowski, with whom Matthew J. Ryan, Jr.,  Michael
               __________________            ____________________   _______

          K.  Callan and Doherty, Wallace, Pillsbury & Murphy, P.C. were on
          __________     __________________________________________

          brief for appellant.

               Thomas  J. Scannell, with whom Bowditch & Dewey was on brief
               ___________________            ________________

          for appellee.


____________________



                                   October 6, 1995

                                 ____________________



Per   Curiam.      Plaintiff-Appellant,  Mary   Osborne
                    Per   Curiam.
                    ____________



          ("Osborne"),  appeals  the  district  court's  dismissal  of  her



          complaint  for insufficient service of process.   For the reasons



          stated below, we affirm.



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                    Osborne brought  a  personal  injury  suit  in  Hampden



          County Superior  Court for  the Commonwealth of  Massachusetts on



          August  30,  1994  against  defendant-appellee,  Sandoz Nutrition



          Corporation   ("Sandoz").     Osborne  failed   to  comply   with



          Massachusetts Rule of Civil Procedure 4(j), which required her to



          effect service of her  complaint within 90 days from the  date of



          filing  (i.e., on  or  before November  28,  1994), and  mandated



          dismissal  unless she showed good cause for untimely service.  On



          November  30,  1994,  Osborne  filed  with  the  state  court  an



          Emergency  Motion to  Extend Tracking  Order to Allow  Service of



          Process ("Emergency  Motion"), which defendant opposed.   Osborne



          completed  service of process on Sandoz on December 29, 1994, one



          month  after the  deadline and  with the  Emergency Motion  still



          pending.   On  January  13, 1995,  the  action was  removed  upon



          Sandoz'  motion, pursuant  to 28 U.S.C.    1332  and 28  U.S.C.  



          1441, to the  United States  District Court for  the District  of



          Massachusetts.   On January  23, 1995,  Sandoz moved to  dismiss,



          asserting   insufficient   service   of   process   pursuant   to



          Massachusetts law.



                    The  district court granted  Sandoz' motion to dismiss.



          The district  court reasoned  that, under Federal  Rule of  Civil


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Procedure  81(c),  Massachusetts  Rule of  Civil  Procedure  4(j)



          applies relative  to the time  frame for effectuating  service of



          process, and  that, under Massachusetts case  law, Osborne failed



          to show  good cause  for failure  to  serve process  in a  timely



          manner.  Final judgment was entered on March 6, 1995, and Osborne



          filed this appeal on March 9, 1995.



                    On  appeal,  Osborne contends  that  28  U.S.C.    1448



          mandates  application of  Federal  Rule of  Civil Procedure  4(m)



          (which  provides  Osborne with  120  days  to effect  service  of



          process from the date of removal) and that, even if Massachusetts



          Rule  of Civil  Procedure 4(j)  applies, Osborne  can demonstrate



          good cause for the delay in service of process.



                                      DISCUSSION
                                      DISCUSSION
                                      __________



                    The district  court's decision  as to which  procedural



          rule applies is a question of law subject to plenary review.  See
                                                                        ___



          New  Hampshire Ball Bearings v. Aetna Casualty and Surety Co., 43
          ____________________________    _____________________________



          F.3d  749, 752 (1st Cir. 1995);  LoVuolo v. Gunning, 925 F.2d 22,
                                           _______    _______



          25  (1st Cir.  1991).    We view  this  appeal as  involving  the



          straightforward  application  of state  procedural  law regarding



          service  of process  prior  to removal  to  federal court.    The



          district court  correctly applied  state procedural law  prior to



          removal because state law governs the service of process prior to



          removal  to the  district court.   Fed.  R. Civ.  P. 81(c).   See
                                                                        ___



          Winkels v.  George A. Hormel &  Co., 874 F.2d 567,  570 (8th Cir.
          _______     _______________________



          1989); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168
                 ________    ___________________________


-3-



(3d  Cir. 1976).  See also Garden  Homes, Inc. v. Mason, 238 F.2d
                            ________ ___________________    _____



          651, 653 (1st Cir. 1956).



                    In this respect, we reject Osborne's contention that 28



          U.S.C.    1448,  which governs  procedure only  after  removal to



          federal  court, mandates  application  of Federal  Rule of  Civil



          Procedure 4(m).   Osborne  asserts that  service  of process  was



          "unperfected" or "defective"  within the meaning  of 28 U.S.C.   



          1448 as of  the date of removal because her  Emergency Motion was



          still pending before the state court when the action was removed.



          We reject Osborne's argument because the district court, pursuant



          to the general rule that state law governs sufficiency of process



          prior  to  removal and  should be  applied  by federal  courts in



          determining whether there  were procedural deficiencies  prior to



          removal,  applied the same test  that the state  court would have



          applied in deciding the Emergency Motion; that is, whether, under



          Massachusetts Rule  of Civil  Procedure 4(j) and  applicable case



          law, Osborne demonstrated good cause for failure to serve process



          in a timely manner.   Fed. R. Civ. P. 81(c); Winkels, 874 F.2d at
                                                       _______



          570.   Osborne had the same opportunity before the district court



          to demonstrate  good cause  for failure  to timely  serve process



          that she would  have had before the state court  had the case not



          been removed to district court.



                    Furthermore,   we  agree  with   the  district  court's



          conclusion that  the doctrine enunciated in Hanna v. Plummer, 380
                                                      _____    _______



          U.S. 460  (1965), and the provisions  of 28 U.S.C.    1448 do not



          apply.   Applying Section 1448 would  ignore Osborne's procedural


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deficiency in  state court,  and effectively penalize  Sandoz for



          exercising its removal right.  We decline to use Section 1448, as



          the  district court  noted, to  "breathe jurisprudential  life in



          federal  court to a case legally dead in state court."  Witherow,
                                                                  ________



          530 F.2d at 168.



                    We  turn  to   the  district  court's   application  of



          Massachusetts precedent (as opposed  to federal precedent) in its



          determination of whether Osborne  demonstrated good cause for her



          failure  to  timely  serve  process.      Contrary  to  Osborne's



          contentions,  we  note that  once  the  district court  correctly



          decided to apply  Massachusetts Rule of Civil  Procedure 4(j), it



          correctly applied  Massachusetts precedent construing  good cause



          under Massachusetts Rule of Civil Procedure 4(j).



                    The district court's finding that Osborne failed, under



          Massachusetts Rule  of Civil  Procedure 4(j) and  applicable case



          law, to show good cause for her failure to make timely service is



          reviewed for abuse of discretion.  Benjamin v. Grosnick, 999 F.2d
                                             ________    ________



          590,  591 (1st  Cir. 1993).  Based on  our  review of  the record



          below, we  find no abuse of  discretion by the district  court in



          its finding  that Osborne  failed to  demonstrate good  cause for



          failure to timely serve  process.  See Hull v.  Attleboro Savings
                                             ___ ____     _________________



          Bank, 33 Mass.  App. Ct.  18, 26  (1992); Shuman  v. The  Stanley
          ____                                      ______     ____________



          Works, 30 Mass. App. Ct. 951 (1991).
          _____



                    In  sum, we  find that  the district court  applied the



          correct  legal  standards and  did  not abuse  its  discretion in


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dismissing   Osborne's  complaint  for  insufficient  service  of



          process.  Affirmed.
                    ________


-6-

Osborne v. Sandoz Nutrition, (1st Cir. 1995).

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John T. Witherow v. The Firestone Tire & Rubber Company, a Corporation

530 F.2d 160 (Third Circuit, 1976)

Kevin Lovuolo and Antonio Musto v. John Gunning and Elaine Gunning

925 F.2d 22 (First Circuit, 1991)

Hull v. Attleboro Savings Bank

596 N.E.2d 358 (Massachusetts Appeals Court, 1992)

Shuman v. Stanley Works

571 N.E.2d 633 (Massachusetts Appeals Court, 1991)

Winkels v. George A. Hormel & Co.

874 F.2d 567 (Eighth Circuit, 1989)

Opinion

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