McCurdy v. Amer Bd Plastic ( 1998 )


Menu:
  •                                                                                                                            Opinions of the United
    1998 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    9-22-1998
    McCurdy v. Amer Bd Plastic
    Precedential or Non-Precedential:
    Docket 97-1971
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998
    Recommended Citation
    "McCurdy v. Amer Bd Plastic" (1998). 1998 Decisions. Paper 232.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1998/232
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    Filed September 22, 1998
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 97-1971
    JOHN A. MCCURDY, JR., M.D.;
    JOHN A. MCCURDY, JR., M.D., FACS, INC.,
    Appellants
    v.
    AMERICAN BOARD OF PLASTIC SURGERY
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 97-cv-03047)
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    July 13, 1998
    Before: SLOVITER and ROTH, Circuit Judges, and
    FEIKENS,* District Judge
    (Filed September 22, 1998)
    Robert A. Smith
    Kaneohe, HI 96744
    Attorney for Appellants
    Gabriel L. Bevilacqua
    Saul, Ewing, Remick & Saul
    Philadelphia, PA 19102
    Attorney for Appellee
    _________________________________________________________________
    * Hon. John Feikens, Senior District Judge, United States District Court
    for the Eastern District of Michigan, sitting by designation.
    OPINION OF THE COURT
    SLOVITER, Circuit Judge.
    This appeal requires us to consider the intersection of
    Rules 4(m) and 12(h) of the Federal Rules of Civil
    Procedure, in particular whether an objection to service of
    process as untimely under Rule 4(m) may be waived under
    12(h) if not made in compliance with Rule 12(g).
    Surprisingly, it is an issue we have not previously
    addressed.
    I.
    Appellant John A. McCurdy, Jr., M.D., is a licensed
    physician practicing cosmetic surgery in the State of Hawaii
    through the professional corporation of John A. McCurdy,
    Jr., M.D., FACS, Inc., wholly owned by McCurdy
    (collectively referred to as "McCurdy"). McCurdy filed for
    bankruptcy after a jury awarded a former patient $2 million
    in her malpractice suit against him. Thereafter, on June 10,
    1996, McCurdy filed a complaint in the United States
    District Court for the District of Hawaii against the
    American Board of Plastic Surgery ("ABPS") (the appellee
    here), the Hawaii Plastic Surgery Society, the American
    Society of Plastic and Reconstructive Surgeons, Inc., seven
    individual plastic surgeons, and two professional medical
    corporations. McCurdy alleged unfair competition, unlawful
    restraint of trade and various antitrust violations in the
    field of cosmetic plastic surgery under the Clayton Act, 15
    U.S.C. S 15 (1994), the Sherman Act, 15 U.S.C.SS 1-2
    (1994), and Haw. Rev. Stat. S 480-13(a)(1). Among the overt
    acts alleged was the testimony of a California plastic
    surgeon on behalf of the plaintiff in the malpractice suit.
    On October 4, 1996, McCurdy filed an amended complaint,
    pursuant to Fed. R. Civ. P. 15(a), naming an additional
    defendant, the American Board of Medical Specialties
    ("ABMS").
    The instant appeal involves only defendant ABPS, which
    was served with both the original and amended complaints
    2
    on October 28, 1996, 20 days after the expiration of the
    original 120-day period provided for under Fed. R. Civ. P.
    4(m). McCurdy claims that he failed to serve ABPS during
    the 120-day period because counsel had used that time to
    make his Rule 11 inquiry, concluding by October 4, 1996,
    that a factual and legal basis for suit existed. Although
    service had been initially mailed to ABPS on October 4,
    1996, it was directed to William D. Morain, M.D., who was
    no longer employed by ABPS. Consequently, McCurdy re-
    served ABPS on October 24, 1996. This time, service was
    directed to Constance Hanson, an ABPS administrator, who
    accepted it on October 28, 1996.
    On January 17, 1997, ABPS moved to dismiss McCurdy's
    claims under Rules 12(b)(2) and 12(b)(3) of the Federal
    Rules of Civil Procedure, asserting that Hawaii lacked
    personal jurisdiction over it and that venue was improper.
    ABPS did not allege a defect in the October 28 service of
    process pursuant to Rules 12(b)(4) or 12(b)(5).
    On January 27, 1997, the Hawaii district court granted
    a motion to dismiss for lack of personal jurisdiction and
    improper venue filed by defendant ABMS. The court
    reasoned that under Hawaii's long-arm statute, Hawaii had
    no jurisdiction over ABMS and that even if it did,
    McCurdy's claims with respect to ABMS were barred by the
    statute of limitations.
    McCurdy anticipated that the court would apply the
    same reasoning to ABPS, which like ABMS had been served
    under Hawaii's long-arm statute. Therefore, McCurdy
    sought to moot the issue of personal jurisdiction under the
    state long-arm statute by re-serving ABPS under the
    Clayton Act, which provides that process on a corporate
    defendant "may be served in the district of which it is an
    inhabitant, or wherever it may be found." 15 U.S.C. S 22
    (1994). McCurdy believed that the October 4 filing of the
    first amended complaint initiated a new 120-day time
    period in which to serve ABPS, but even that period would
    have expired on February 3, 1997. On February 5, 1997,
    McCurdy filed an ex parte motion requesting the court to
    exercise its discretion under Fed. R. Civ. P. 4(m) to extend
    the 120-day period by nine days. On February 7, 1997,
    while the ex parte motion was pending, the amended
    3
    complaint was personally served on ABPS. Although the
    first service was designated in counsel's cover letter as
    under the Hawaii long-arm statute, the February service
    was ostensibly under the nationwide service provision of
    the Clayton Act. A week later, the Hawaii magistrate judge
    denied without prejudice McCurdy's ex parte motion to
    enlarge the time in which to serve. On February 27, 1997,
    ABPS moved to quash the February 7, 1997 service on the
    ground that it was untimely under Rule 4(m). The record
    contains no indication of any ruling on that motion.
    On April 11, 1997, the Hawaii district court, ruling on
    ABPS's January 17 motion to dismiss, held that it lacked
    personal jurisdiction over ABPS and that venue was
    improper. Nonetheless, the court then transferred
    McCurdy's suit against ABPS to the Eastern District of
    Pennsylvania "in the interest of justice," as it would have
    otherwise been time-barred as of that time. McCurdy never
    re-served ABPS.
    On May 13, 1997, following the transfer, ABPS filed a
    motion to dismiss arguing that the original October 28,
    1996, service was untimely. McCurdy opposed the motion
    and filed a cross-motion for an extension of time to effect
    service. McCurdy argued that ABPS had waived any
    challenges to the timeliness of the October service because
    its motion to dismiss the action in the District of Hawaii
    listed as grounds only lack of personal jurisdiction and
    venue. On November 12, 1997, the Pennsylvania district
    court granted ABPS's motion on the ground that McCurdy
    had failed to effect service within 120 days of either the
    original or first amended complaints. The court read the
    language of Rule 4(m) that requires that service of process
    be made within 120 days to be mandatory, and not subject
    to waiver. Thereafter, the court determined that McCurdy
    had not been diligent in attempting to serve ABPS and
    declined to find good cause for extending the time for
    service. Accordingly, the district court dismissed McCurdy's
    complaint against ABPS. McCurdy now appeals that
    dismissal.
    II.
    McCurdy argues on appeal that the district court erred in
    determining that failure to effect service in compliance with
    4
    Rule 4(m) requires dismissal and is not subject to waiver by
    the defendant. He claims that ABPS waived any challenge
    to the October 28 service by not raising it in the Rule 12
    motion filed in Hawaii on January 17, 1997. In that motion,
    ABPS moved to dismiss based on lack of personal
    jurisdiction and venue but not on the ground that service
    had been untimely. Issues concerning the propriety of
    service under Rule 4 are subject to plenary review. See
    Grand Entertainment Group, Ltd. v. Star Media Sales, Inc.,
    
    988 F.2d 476
    , 481 (3d Cir. 1993).
    Rule 12(g) provides that "[i]f a party makes a motion
    under this rule but omits therefrom any defense or
    objection then available to the party which this rule permits
    to be raised by motion, the party shall not thereafter make
    a motion based on the defense or objection so omitted."
    Fed. R. Civ. P. 12(g).
    The Rule "contemplates the presentation of an omnibus
    pre-answer motion in which defendant advances every
    available Rule 12 defense and objection he may have that
    is assertable by motion." 5A Charles Alan Wright & Arthur
    R. Miller, Federal Practice and Procedure: Civil 2d S 1384 at
    726 (1990). Thus, if a defendant seeks dismissal of the
    plaintiff 's complaint pursuant to Rule 12(b)(5) on the
    ground that service of process was insufficient or
    ineffective, it must include that defense either in its answer
    or together with any other Rule 12 defenses raised in a pre-
    answer motion. See generally 2 James Wm. Moore et al.,
    Moore's Federal Practice, S 12.21 (3d ed. 1997).
    In turn, Rule 12(h) provides:
    A defense of lack of jurisdiction over the person,
    improper venue, insufficiency of process, or
    insufficiency of service of process is waived (A) if
    omitted from a motion in the circumstances described
    in subdivision (g), or (B) if it is neither made by motion
    under this rule nor included in a responsive pleading
    or an amendment thereof permitted by Rule 15(a) to be
    made as a matter of course.
    Fed. R. Civ. P. 12(h)(1) (emphasis added).
    Thus, if a Rule 12 motion is made and the defendant
    omits its objection to the timeliness or effectiveness of
    5
    service under Rule 12(b)(5), that objection is waived. This
    court has long recognized that objections to service of
    process are waived if not timely raised. See, e.g.,
    Government of the Virgin Islands v. Sun Island Car Rentals,
    Inc., 
    819 F.2d 430
    , 433 (3d Cir. 1987) (defective service
    waived if not challenged in first defensive pleading);
    Konigsberg v. Shute, 
    435 F.2d 551
    , 551-52 (3d Cir. 1970)
    (per curiam) (finding defendant waived right to assert
    defenses of lack of personal jurisdiction and insufficiency of
    process where these objections were not raised in first
    responsive pleading); Zelson v. Thomforde, 
    412 F.2d 56
    , 58-
    59 & n.8 (3d Cir. 1969) (per curiam) (deeming defendants'
    objection to service of process waived where defendants
    initially moved to dismiss only on statute of limitations
    grounds).
    The courts of appeals in our sister circuits have reached
    the same conclusion. See Armstrong v. Sears, 
    33 F.3d 182
    ,
    188 (2d Cir. 1994) (noting that Fed. R. Civ. P. 12(g) requires
    consolidation of defenses and Fed. R. Civ. P. 12(h)(1)
    requires that objections to service be included infirst Fed.
    R. Civ. P. 12 motion); Golden v. Cox Furniture Mfg. Co., 
    683 F.2d 115
    , 118 (5th Cir. 1982) (stating challenges to service
    of process must be included at time of first Rule 12
    motion); O'Brein v. R.J. O'Brein & Assocs., 
    998 F.2d 1394
    ,
    1399-1401 (7th Cir. 1993) (party must include defense of
    insufficiency of process in its first Rule 12 motion, or its
    ability to do so is waived); United States v. One 1978 Piper
    Cherokee Aircraft, 
    91 F.3d 1204
    , 1208 (9th Cir. 1994)
    (objection to sufficiency of process waived if not made in
    motion pursuant to Rule 12); Sanderford v. Prudential Ins.
    Co., 
    902 F.2d 897
    , 900 (11th Cir. 1990) (recognizing that
    insufficiency of process defense is waiveable); cf. RTC v.
    Starkey, 
    41 F.3d 1018
    , 1021 (5th Cir. 1995) (affirming
    district court's denial of motion for leave to file motion to
    dismiss where defendant waived insufficiency of process by
    failing to raise it in answer).
    On its face, the language of Rule 4(m) appears to be
    inconsistent with Rule 12's waiver scheme. It provides that
    where service is not effected on a defendant within 120
    days of the filing of the complaint, the court"upon motion
    or on its own initiative . . . shall dismiss the action without
    6
    prejudice as to that defendant." Fed. R. Civ. P. 4(m). The
    district court here concluded that an objection to the
    timeliness of service was governed by the "clear, mandatory
    time requirements set forth in the Rule," so that Rule 4(m)
    effectively overrides the waiver provisions of Rule 12(h). See
    Dist. Ct. Op. at 5 n.2. Though an arguably plausible
    resolution, courts and commentators addressing the
    apparent tension between Rules 4(m) and 12(h) have
    unanimously concluded that Rule 4(m) does not trump
    Rule 12(h) and that an objection that service is untimely
    under Rule 4(m) is subject to waiver by the defendant if not
    made in compliance with Rule 12. See 4A Wright & Miller,
    Federal Practice and Procedure: Civil 2d S 1137 at 81 (Supp.
    1998) ("the mandatory-sounding language of Rule 4(m),
    stating that a court `shall dismiss' an action if service is not
    effected within 120 days, does not affect waiver under Rule
    12(h)(1)(B) if a defendant files a responsive pleading that
    omits insufficiency of service as a defense"); 
    Starkey, 41 F.3d at 1021
    (objections to untimely service are waiveable
    pursuant to Rule 12 notwithstanding Rule 4's mandatory
    language); Pusey v. Dallas Corp., 
    938 F.2d 498
    , 500-01 (4th
    Cir. 1991) (failure to include defense of untimely service of
    process in pre-answer motion waived defense under Rule
    12(h)); Pardazi v. Cullman Med. Ctr., 
    896 F.2d 1313
    , 1317-
    18 (11th Cir. 1990) (same); Kersh v. Derozier, 
    851 F.2d 1509
    , 1511-12 (5th Cir. 1988) (applying Rule 12 waiver
    provision to defense that service was perfected within 120
    days of filing the complaint); United States v. Gluklick, 
    801 F.2d 834
    , 836-37 (6th Cir. 1986) (same).
    We agree that Rule 12 "purports to have universal
    application, and we see no reason to deviate from its plain
    language." 
    Kersh, 851 F.2d at 1512
    . One court has
    commented that to hold otherwise "would lead to the
    indefensible proposition" that a defendant, who voluntarily
    waives an objection to a Rule 4(j) (now Rule 4(m)) violation,
    can be precluded from doing so by a requirement that the
    court dismiss the action. 
    Pardizi, 896 F.2d at 1316-17
    n.2.
    Once it is recognized that the mandatory language of Rule
    4(m) is applicable until occurrence of one of the
    circumstances covered by Rule 12(h), which governs
    thereafter, any facial tension between the two rules is
    avoided. We hold, therefore, that a defense that service of
    7
    process was untimely under Rule 4(m) is subject to Rule
    12's waiver provisions and may be waived if not raised in
    compliance with that rule. Accordingly, ABPS waived its
    objection to the timeliness of the October 28, 1996, service
    when it omitted that defense from its January 17, 1997,
    motion to dismiss for lack of personal jurisdiction pursuant
    to Rule 12(b)(2), and for improper venue pursuant to Rule
    12(b)(3).
    Our conclusion that ABPS waived its objection to the
    October 28, 1996, service as untimely does not end our
    inquiry. The question remains, wholly apart from
    McCurdy's failure to comply with Rule 4(m) with respect to
    the October 28 service, whether either of McCurdy's
    attempts at service on ABPS was effective. ABPS argues
    that the original service made pursuant to the Hawaii long-
    arm provision was ineffective because the district court in
    Hawaii lacked personal jurisdiction over it. We agree.
    Under Hawaii law, a defendant served pursuant to the
    state's long-arm provision must be subject to the
    jurisdiction of the Hawaii courts. See Haw. Rev. Stat. S 634-
    35 (1996). Given the determination of the district court in
    Hawaii that it lacked personal jurisdiction over ABPS, it
    necessarily follows that the October 28, 1996, service made
    pursuant to Hawaii law did not effectively invoke the
    jurisdiction of the Hawaii court. Therefore, once the case
    was transferred, McCurdy was required to invoke the
    jurisdiction of the Pennsylvania court by re-serving ABPS
    with service issued by that court.
    In a similar situation in Buggs v. Ehrnschwender, 
    968 F.2d 1544
    (2d Cir. 1992), plaintiff, a Pennsylvania citizen
    who was injured in an automobile accident in New York,
    sued a New York citizen in a federal court in Pennsylvania
    and served defendant by certified mail. The case was
    transferred to the federal court in New York and was
    dismissed for improper service. The court noted that the
    service of the complaint before transfer of the case was
    ineffective because defendant had insufficient contacts to
    fall within Pennsylvania's long-arm statute. Therefore,
    plaintiff "was obligated to effect service in the new forum"
    following the transfer and his failure to do so before the
    statute of limitations ran resulted in dismissal. 
    Id. at 1548;
    8
    see also 5A Wright & Miller, Federal Practice and Procedure:
    Civil 2d S 1353 at 279 (1990) ("service of process is . . . the
    means by which a court gives notice to defendant and
    asserts jurisdiction over him") (emphasis added).
    Accordingly, in order to invoke the jurisdiction of the
    Pennsylvania court, McCurdy was required to timely re-
    serve ABPS in Pennsylvania, which he failed to do.
    Finally, we note that, having objected pursuant to Rule
    12(b)(2) on the ground that Hawaii lacked personal
    jurisdiction over it, ABPS effectively preserved the defense
    that the October 28, 1996, service of process was
    insufficient on the ground that personal jurisdiction was
    lacking. ABPS was not required to make the identical
    objection twice -- once under Rule 12(b)(2) and again under
    Rule 12(b)(5). Where personal jurisdiction is lacking,
    "[c]learly, a Rule 12(b)(2) motion . . .[is] more appropriate"
    than one under Rule 12(b)(5). 5A Wright & Miller, S 1353 at
    278-79.
    We turn then to consider the possible effectiveness of
    McCurdy's February 7, 1997, service under the Clayton
    Act. McCurdy concedes that the February 1997 service was
    untimely by four days. In fact, he further concedes that if
    his first attempt at service was ineffective, then his filing of
    the amended complaint would not have commenced a new
    120-day time period in which to perfect service. See
    Appellants' Br. at 17. Thus, the 120-day period, which
    commenced on June 10, 1996, expired on October 8, 1996,
    and McCurdy's second attempt at service was four months,
    as opposed to four days, late.
    With this in mind, we examine whether the district court
    properly refused to grant McCurdy an extension of time in
    which to serve nunc pro tunc.1 We review the district court's
    denial of McCurdy's cross-motion for an extension of time
    _________________________________________________________________
    1. We note initially that ABPS's objection to the timeliness of the
    February service was not waived by its failure to include the objection in
    its January 17, 1997, motion to dismiss. At the time ABPS filed its
    motion to dismiss, the second service had not yet been attempted. Thus,
    the objection was not available as of the time the motion was filed. See
    Fed. R. Civ. P. 12(g) (requiring that a defendant's Rule 12 motion include
    all Rule 12 defenses "then available").
    9
    to serve for abuse of discretion. See Boley v. Kaymark, 
    123 F.3d 756
    , 758 (3d Cir. 1997).
    This court has developed a two-pronged inquiry to
    determine whether the grant of an extension of time in
    which to serve is proper under Rule 4(m). First, the court
    must determine whether good cause exists for the failure to
    have effected service in a timely manner. If so, the
    extension must be granted. If good cause has not been
    shown, however, the court still may grant the extension in
    the sound exercise of its discretion. See MCI Telecomm.
    Corp. v. Teleconcepts, Inc., 
    71 F.3d 1086
    , 1098 (3d Cir.
    1995); Petrucelli v. Bohringer & Ratzinger, 
    46 F.3d 1298
    ,
    1305 (3d Cir. 1995).
    In the case at bar, the district court found that
    McCurdy's efforts at perfecting timely service had been
    "half-hearted and dilatory." Dist. Ct. Order at 7. It
    concluded therefore that good cause for the delay had not
    been shown. 
    Id. Moving to
    the next step of the analysis, the
    court recognized that the statute of limitations had run on
    McCurdy's claims against ABPS thus barring the refiling of
    his complaint. Nevertheless, the court insightfully
    commented that "the running of the statute on the date the
    original complaint was filed causes me to view that factor in
    a light less favorable to plaintiff than might otherwise be
    the case." 
    Id. at 8.
    In the end, the court characterized
    McCurdy's attempts at service as "too little, too late" and
    concluded that he had demonstrated no basis to justify the
    exercise of the court's discretion to grant an extension of
    time in which to serve. 
    Id. Our own
    review of the record satisfies us that the district
    court did not err in refusing to grant the extension that
    McCurdy sought. None of McCurdy's attempts at service
    was timely. Nor at any time did McCurdy ask any court for
    an extension of time before the time allotted under the
    Rules had lapsed. As the district court stated,"once the
    matter was transferred to [Pennsylvania], counsel did not
    even attempt to move to extend the deadline for service
    until after the defendant moved to dismiss." 
    Id. at 6.
    Indeed, at the time the district court ruled, the statute of
    limitations on McCurdy's claims had expired almost
    eighteen months prior. We are well aware that the Federal
    10
    Rules are meant to be applied in such a way as to promote
    justice. See Fed. R. Civ. P. 1. Often that will mean that
    courts should strive to resolve cases on their merits
    whenever possible. However, justice also requires that the
    merits of a particular dispute be placed before the court in
    a timely fashion so that the defendant is not forced to
    defend against stale claims. Here, McCurdy failed to do just
    that at every opportunity, and the district court was well
    within its authority to deny McCurdy the extension he
    sought.
    III.
    For the reasons stated above, the order of the district
    court dismissing McCurdy's complaint will be affirmed.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    11