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Peh v. Keliher

United States District Court, S.D. Georgia, Brunswick Division

July 28, 2017

EE MENG PEH, Plaintiff,
v.
TRENT KELIHER; KENNETH R. TEAGLE; and AYER RAJAH INVESTMENTS, LLC, Defendants.

          ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

         Presently before the Court is Plaintiff's Second Motion for Extension of Time to Effect Service. (Doc. 25.) Defendant Ayer Rajah Investments, LLC, filed a Response.[1] (Doc. 26.) Plaintiff has not exercised diligence in serving Defendants Keliher and Teagle, and he has failed to comply with this Court's Local Rules regarding service and its May 25, 2017, Order directing that Plaintiff serve these Defendants within twenty-one days. Thus, the Court DENIES Plaintiff's Motion. Further, I RECOMMEND that the Court DISMISS WITHOUT PREJUDICE all claims against Defendants Trent V. Keliher and Kenneth R. Teagle. Within fourteen (14) days of the date of this Order, counsel for Plaintiff and Defendant Ayer Rajah Investments, LLC, shall hold a conference pursuant to Rule 26(f). Within seven (7) days of that conference, counsel shall file a Rule 26(f) Report with the Court. Counsel shall follow the directives contained in the Court's Rule 26 Instruction Order when holding their Rule 26 conference and filing the Rule 26(f) Report.

         BACKGROUND

         On October 14, 2016, Plaintiff filed his Complaint and alleged Defendants committed breach of contract, tortious fraud, and gross negligence in the performance of their fiduciary duties. (Doc. 1.) The Court directed Plaintiff to show cause within fourteen (14) days of its January 30, 2017, Order as to why Defendants had not been served with the Complaint. (Doc. 5.) Plaintiff responded that he was able to effect service on Defendant Ayer Rajah on January 25, 2017, despite having trouble with attempting service on a previous occasion. As to Defendants Keliher and Teagle, both of whom reside in Singapore, Plaintiff stated that Singapore is not a party to the Hague Convention or other treaty with the United States and requires letters rogatory be sent to its government to begin the lengthy process for service in Singapore. (Doc. 10.) Thus, Plaintiff maintained these events “constitute a reasonable basis for noncompliance” with Federal Rule of Civil Procedure 4(m).

         On February 13, 2017, attorney James Yancey appeared on behalf of all Defendants, and the Court granted attorney Auden Grumet's Motion for Leave to Appear Pro Hac Vice on behalf of Defendants. (Doc. 12.) Defendant Ayer Rajah filed a Special/Limited Appearance and Answer, through counsel, on March 2, 2017. (Doc. 14.) Defendant Ayer Rajah also filed a Response in opposition to Plaintiff's Response to the Court's January 30, 2017, Order. (Doc. 16.)

         Plaintiff then filed his first Motion for Extension of Time to Effect Service of the Complaint. (Doc. 18.) The Court granted Plaintiff's Motion in part and allowed Plaintiff a period of twenty-one (21) days from the date of the Order to serve all Defendants. (Doc. 24, p. 5.) The Court found that Plaintiff had made efforts to serve Defendant Ayer Rajah, and Plaintiff contended that he had properly served that Defendant on January 25, 2017, which was after the ninety day period provided by Rule 4(m) but within the extended deadline of June 15, 2017. (Id.) Further, the Court held that, while Plaintiff could have done more to serve Defendants Keliher and Teagle, he had not been derelict in his responsibility in prosecuting his claims. (Id. at p. 4.) However, the Court forewarned Plaintiff that the “extension should by no means be seen as an endorsement of counsel's delayed attempts to serve Defendants. In the future, the Court expects that counsel will make every effort to diligently adhere to the deadlines of this Court and of the Federal Rules of Civil Procedure.” On the day before the expiration of the Court's imposed deadline, Plaintiff filed his Second Motion for Extension of Time for Service on Defendants Keliher and Teagle. (Doc. 25.)

         DISCUSSION

         I.Denial of Plaintiff's Motion for Extension of Time

         Plaintiff requests that the Court extend the time for service on Defendants Keliher and Teagle by another twenty-one (21) days so that Plaintiff may have the opportunity to make additional service attempts and to determine what steps would be necessary to effect substituted service in Singapore. Counsel briefly chronicles the attempts to serve Defendants Keliher and Teagle since February 21, 2017, including four (4) unsuccessful attempts by a process server at the Singapore residences of Defendants Keliher and Teagle since May 11, 2017. (Doc. 25, pp. 1-2.) Plaintiff maintains that the process server has opined it may take another eight to twelve weeks' time to effect service and that Defendants Keliher and Teagle travel quite extensively. Additionally, counsel states substituted service may be had through e-mail and/or social media through the courts in Singapore, but he cannot provide an estimate for how long that process may take. (Id. at p. 2.)

         Defendant Ayer Rajah contends Plaintiff has had more than enough time to effect service on Defendants Keliher and Teagle. In fact, Defendant Ayer Rajah notes Plaintiff has known Defendants Keliher and Teagle for many years and knows these Defendants travel frequently and should have anticipated the difficulties he could encounter in attempting to serve process upon these Defendants. (Doc. 26, p. 3.) Defendant Ayer Rajah's counsel avers he contacted Plaintiff's counsel in an attempt to resolve service issues, with certain conditions imposed, in January and February 2017; however, counsel were unable to reach an agreement. Defendant Ayer Rajah asserts the time has come for the Court to find Plaintiff to be derelict or otherwise has eschewed his responsibility in prosecuting his claims. (Id. at p. 4.)

         Local Rule 4.3 of this Court provides, “It shall be the responsibility of the plaintiff or plaintiff's attorney to effectuate prompt service of the summons and a copy of the complaint[.]” Similarly, Federal Rule of Civil Procedure Rule 4(m) mandates that the Court dismiss a complaint when a plaintiff failed to effect service within 90 days of the filing of the complaint. Fed.R.Civ.P. 4(m).[2] However, the time limits of Rule 4(m) do not apply to service in a foreign country under Rule 4(f).[3] Fed.R.Civ.P. 4(m) (“This subdivision (m) does not apply to service in a foreign country under Rule 4(f)[.]”). Rule 4(f) provides, in relevant part, that a foreign defendant residing in a place where “there is no internationally agreed means, or if an international agreement allows but does not specify other means, ” may be served “by a method that is reasonably calculated to give notice[.]” Fed.R.Civ.P. 4(f)(2). As examples of manners that are “reasonably calculated to give notice[, ] Rule 4(f)(2) provides:

(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or ...

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