Patrick Rivard v. Lachman, et al.

2014 DNH 076

• Court: District Court, D. New Hampshire
• Decided: April 21, 2014
• Docket: 13-CV-209-SM
• Status: Published

Opinion

Patrick Rivard v. Lachman, et al. 13-CV-209-SM 4/21/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Patrick Rivard

v. Case No. 13-cv-209-SM Opinion No. 2014 DNH 076 Theodore B. Lachman, and Internal Credit Systems, Inc.

O R D E R

Plaintiff, Patrick Rivard, brings this case against Internal

Credit Systems, Inc., a debt collection agency, and its president

and registered agent, Theodore Lachman, alleging violations of

the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.

§ 1692, and state statutory and common law. Before the court is

defendant Lachman’s motion to dismiss for insufficient service of

process (document no. 9). The motion is denied for the reasons

that follow.

Background

Rivard filed his complaint on April 30, 2013. Alleging that

defendants were evading service, Rivard filed a timely motion for

an extension of time to effect service or for an order

“ratifying,” as alternative service under the New Hampshire’s

long-arm statute, service on Lachman’s abode. By order dated

August 22, 2013, the court denied Rivard’s request that the court

“ratify” Rivard’s irregular alternative service on defendants, noting that alternative service under New Hampshire’s long-arm

statute must be authorized by prior court order. The court,

however, granted Rivard a sixty-day extension, until October 26,

2013, to effect service in accordance with the requirements of

Fed. R. Civ. P. 4.

Rivard successfully served the corporate defendant but was

unable to serve Lachman. As supported by affidavit, Lachman

appears to have gone out of his way to evade service and has

admitted as much in phone conversations with Rivard’s office

staff, having stated, among other things, “Good luck getting me

served.” Mathews Aff. (document no. 12-3).

Prior to the extended service deadline, counsel representing

both Lachman and the corporation filed an appearance and

requested, by assented-to motion, that defendants be given an

extension of time to file an answer or a motion under Rule 12(b).

The court granted the extension. Rivard believed that Lachman

had voluntarily submitted himself to the court’s jurisdiction,

thereby waiving any objections to insufficiency to service.

Pl. Br., doc. no. 12, at 3. He reasoned that it would,

therefore, "be unnecessary to move for additional time to

continue the several months long game of cat and mouse." Id.

2 Rivard was mistaken in his view of the law1 and Lachman’s

intentions. One month later, Lachman filed a motion to dismiss

under Rule 12(b)(5) for insufficient service of process, which is

now before the court.

Rivard opposes the motion, making much of the fact - not

denied by Lachman - that Lachman has been actively evading

service. Lachman, for his part, stresses the fact that Rivard

has been sitting on his hands, not taking the opportunity to seek

a second extension of time or an order allowing alternative

service.

Lachman, of course, has a point. Rivard is an attorney

whose education and experience includes familiarity with

procedural matters and the importance of proactively pursuing an

order for alternative service or a second extension of time to

effect service. On top of that, Rivard is represented by legal

counsel in this lawsuit. But neither Rivard nor his counsel has

acted in bad faith and their conduct does not constitute

inexcusable neglect. In fact, Rivard has asked, albeit not

proactively but in the course of objecting to Lachman’s motion to

dismiss, for an order allowing alternative service and for time

1 Contrary to Rivard’s belief then and now, Lachman did not waive his objection to the sufficiency of service by filing a motion to extend the time in which to file his answer or a 12(b) motion. See Mann v. Castiel, 681 F.3d 368, 374, (D.C. Cir. 2012).

3 to “complete service on the defendant.” Pl. Br., doc. no. 12, at

4, 5.

In making those requests in his brief in opposition to

Lachman’s motion, Rivard ignores our local rule specifying that

“[o]bjections to pending motions and affirmative motions for

relief shall not be combined in one filing.” L.R. 7.1(a)(1).

The court, nevertheless, will entertain Rivard’s requests because

the fully-briefed arguments on Lachman’s motion to dismiss are

relevant to - indeed, are wholly intertwined with - whether

Rivard should be given a final opportunity to effect service of

process on an uncooperative defendant.

An order for alternative service is appropriate in these

circumstances. The procedures and methods for service of

process, as set forth in Rule 4, include, but are not limited to,

options provided for under the relevant laws of the state in

which the federal court is located. See Fed. R. Civ. P. 4(e)(1).

New Hampshire’s long-arm statute provides for alternative service

by court order “as justice may require” when “the notice and a

copy of the process are not delivered to or accepted by the

defendant.” N.H. Rev. Stat. Ann. (“RSA”) 510:4. Those

circumstances are present here. Rivard attempted to serve notice

and a copy of process both before and after the court’s August

22, 2013, order. Here, “justice require[s]” that alternative

service be authorized. Rivard’s sworn affidavit, and the

4 attendant circumstances strongly suggest that Lachman is actively

and consciously evading service of process.

An extension of time to accomplish service is, granted.

Although “good cause” probably exists to warrant a mandatory

extension of time under Rule 4(m), the court need not reach that

issue because Lachman’s evasions easily support a discretionary

extension. See Colby v. Town of Henniker, 2001 WL 274780, at *4

(D.N.H. Feb. 15, 2001) (courts “have discretion to grant a

plaintiff additional time to complete service of process even if

he cannot satisfy the ‘good cause’ standard” of Rule 4(m)) citing

Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1306 (3d

Cir. 1995) (“’Relief may be justified . . . if the defendant is

evading service.’”) (quoting Rule 4(m) Advisory Committee Note).

Conclusion

Defendant Lachman’s Motion to Dismiss (document no. 9) is

denied. Plaintiff’s request for an order authorizing alternative

service is granted. In keeping with the strict requirements of

New Hampshire’s long-arm statute, and notwithstanding that

defendant Lachman has actual notice of the claims against him,

plaintiff shall, within thirty (30) days, effect alternative

service of process by mailing a copy of the complaint and summons

via First Class mail (1) to Lachman’s last-known address and

(2) to the attorney who is representing Lachman in this lawsuit.

5 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

April 21, 2014

cc: John F. Skinner, III, Esq. Donald C. Crandlemire, Esq. Dustin M. Lee, Esq.