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Farb v. Perez-Riera
Citations: 293 F.R.D. 77; 85 Fed. R. Serv. 3d 1024; 2013 U.S. Dist. LEXIS 69945; 2013 WL 2097417Docket: Civil No. 12-1772(GAG)
Court: District Court, D. Puerto Rico; May 15, 2013; Federal District Court
Judge Gustavo A. Gelp addressed co-defendant Jose Perez Riera's motion to quash summons and dismiss the complaint due to insufficient service of process. The court reviewed the relevant documents and legal standards, particularly Rule 12(b)(5) of the Federal Rules of Civil Procedure, which allows for dismissal based on improper service. It is noted that the burden is on plaintiffs to demonstrate proper service once challenged. The procedural history reveals that the plaintiff filed the complaint on September 17, 2012, and the Clerk of Court issued summonses the following day. After amendments and motions for service by publication, the court permitted service by publication on March 18, 2013, directing compliance with Puerto Rico's Rule 4.6. The plaintiff filed a notice of service by publication on April 5, 2013. Perez Riera contended that the service by publication did not satisfy the requirements of Puerto Rico's Rule 4.5(b), particularly that the published summons lacked a title, the type of action, and a specified time frame for response. He also claimed that no summons for publication had been issued by the Clerk of Court. The court found that the plaintiff did not adequately address these deficiencies. Consequently, the court granted Perez Riera's motion to quash the summons but denied the motion to dismiss the complaint. Perez Riera contends that under Puerto Rico law, the Plaintiff should have allowed thirty days for him to respond to the complaint, instead of the twenty-one days mandated by Federal Rule of Civil Procedure 12(a). The court ruled that the Plaintiff correctly utilized the twenty-day response period outlined in federal law. Despite service being conducted under state law, federal summons forms must be used. The 1993 amendment to Rule 12(a) eliminated references to state law time requirements, establishing that defendants have twenty days to respond unless specified otherwise by federal statute, regardless of the service method employed. The court also noted that Rule 4(m) governs the timing of service of process, requiring service to occur within 120 days of filing the complaint, with the possibility of extensions granted for good cause. The court found no bad faith on the Plaintiff's part and chose to extend the service period by ten days, allowing until May 25, 2013, for proper service of Perez Riera through publication. Additionally, Perez Riera is required to submit a certified translation of Rule 4.6 by June 15, 2013. The court referenced the 2009 amendments to Puerto Rico's Rules of Civil Procedure, noting the absence of an English translation for Rule 4.6 but citing the corresponding 1979 Rule for context. Overall, the court granted Perez Riera's motion to quash but denied his motion to dismiss the complaint.