Vivas-Ruiz v. Ambush et al, No. 3:2012cv02046 - Document 19 (D.P.R. 2013)

Court Description: OPINION AND ORDER DENYING 6 MOTION to dismiss as to Ruben Vivas-Ruiz filed by Law Offices of Joshua M. Ambush, LLC, Joshua M. Ambush. Signed by Judge Jose A Fuste on 8/30/2013.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 5 RUBEN VIVAS RUIZ, Plaintiff, Civil No. 12-2046 (JAF) v. JOSHUA M. AMBUSH, et. al., Defendants. 6 7 8 9 OPINION AND ORDER We are asked to determine the validity of service of process in a breach-ofcontract action. I. 10 11 12 Background 13 On December 26, 2012, the plaintiff, a former law client of the defendant, filed his 14 complaint for the recovery of attorney s fees. (Docket No. 1.) We granted the plaintiff s 15 motion for an extension of time to serve process, with service required on June 6, 2013. 16 (Docket No. 5.) The plaintiff finally served the defendants on June 18, 2013. (Docket 17 No. 7.) On June 26, 2013, the defendant moved to dismiss the complaint under Rule 18 12(b)(5), asserting insufficient service of process because delivery was not accomplished 19 within 120 days after commencement. 20 defendant claims. Even so, dismissal is not warranted as the Civil No. 12-2046 (JAF) II. 1 2 3 4 -2- Legal Standard A. Motion to Dismiss Standard 5 Federal Rule of Civil Procedure 4(m) gives a plaintiff 120 days to accomplish 6 service following the filing of the complaint. If a defendant is not served within 120 days, 7 Rule 4(m) requires that the court dismiss the action without prejudice or order that 8 service be made within a specified time. Fed.R.Civ.P. 4(m). 9 Additionally, Fed.R.Civ.P. 12(b)(5) provides for dismissal of a complaint due to 10 insufficiency of service. A party filing a motion under Rule 12(b)(5) is essentially 11 contesting the manner in which process of service was performed. Ramirez de Arellano 12 v. Colloides Naturels Int'l, 236 F.R.D. 83, 85 (D.P.R.2006); see also Molinelli Freytes v. 13 Univ. of P.R., 727 F.Supp.2d 60 (D.P.R.2010). Specifically, [a] Rule 12(b)(5) motion is 14 the proper vehicle for challenging the mode of delivery or the lack of delivery of the 15 summons and complaint. 5B Charles Alan Wright & Arthur R. Miller, FEDERAL 16 PRACTICE AND PROCEDURE § 1353 (3d ed. 2010). The party raising the insufficiency of 17 service bears the burden of specifically establishing how plaintiff failed to satisfy the 18 requirements of service. Ramirez de Arellano, 236 F.R.D. at 85. 19 It is well known that the dismissal of the action under Fed.R.Civ.P. 12(b)(5) is 20 inappropriate when there is a reasonably conceivable means through which service may 21 be obtained and jurisdiction acquired over the defendant and where defective service does 22 not prejudice the defendant. See, e.g., Benjamin v. Grosnick, 999 F.2d 590, 592 (1st Cir. 23 1993). Generally, if the first service of process is ineffective, and the defects are curable, 24 we treat a motion to dismiss as a motion to quash service of process in the alternative, 25 and retain the case pending effective service. Ramirez de Arellano, 236 F.R.D. at 85 n. 4. Civil No. 12-2046 (JAF) -3- 1 However, district courts possess broad discretion to dismiss the action, or retain the case 2 and quash the service made on the defendant. Id. 3 4 5 III. Discussion 6 First and foremost, dismissal is inappropriate because service finally occurred. 7 (Docket No. 6.) Moreover, a district court is not required to dismiss a defendant when 8 service is not made within the 120 day deadline especially when defendant admits in 9 his motion to dismiss that he has been served. See Fed.R.Civ.P. 4(m); see also Crispin- 10 Taveras v. Municipality of Carolina, 647 F.3d 1, 7 (1st Cir. 2011); Henderson v. United 11 States, 517 U.S. 654, 662 (1996) ( [I]n 1993 amendments to the Rules, courts have been 12 accorded discretion to enlarge the 120-day period even if there is no good cause 13 shown. ) (quoting Advisory Committee's Notes on Fed.R.Civ.P. 4(m)); Zapata v. City of 14 New York, 502 F.3d 192, 196 (2d Cir.2007) (holding that district courts have discretion 15 to grant extensions of the service period even in the absence of good cause and citing 16 decisions from the Eleventh, Seventh, Tenth, and Third Circuits holding the same). 17 The parties have devoted significant time and resources to this matter, and 18 dismissing the action without prejudice at this time would serve no purpose especially 19 in light of the fact that the plaintiff finally effected service. And, neither party would be 20 prejudiced by permitting this action to continue in fact, just the opposite is true. As a 21 result, the defendants motion to dismiss is denied. Civil No. 12-2046 (JAF) IV. 1 2 3 4 5 -4- Conclusion For the foregoing reasons, Defendants motion to dismiss, (Docket No. 6), is DENIED. 6 IT IS SO ORDERED. 7 San Juan, Puerto Rico, this 30th day of August, 2013. 8 9 10 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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