Gloria Lozano v. Julie Bosdet
693 F.3d 485
5th Cir.2012Background
- Lozano, a Mississippi plaintiff, sued Enterprise Rent-A-Car and foreign-nation defendants (Bosdet and the Parrys) for an accident in Horn Lake, MS on Feb 23, 2006.
- Lozano filed suit in DeSoto County Circuit Court on Feb 23, 2009; summons issued; attempts at mail service under MS rules failed.
- Enterprise removed the case to federal court; district court later granted summary judgment against Bosdet, finding the rental contract could not bind the company.
- A private process server and various methods of service were pursued within 120 days of filing, then extensions were sought beyond 120 days.
- The district court dismissed the suit after concluding Rule 4(m) timing applied to foreign service; Lozano sought Hague Convention service outside the United States.
- The Fifth Circuit adopts a flexible due-diligence standard for foreign service under Rule 4(f) and reverses the district court’s dismissal due to a likely Mississippi statute of limitations bar on refiling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(m) timing applies to foreign service under Rule 4(f). | Lozano argues flexible due-diligence governs foreign service, not a strict 120-day window. | Enterprise contends the 120-day rule applies regardless of foreign-service routes. | Rule 4(m) does not apply to foreign service; flexible due-diligence standard adopted. |
| What governs dismissal timing when foreign service is pursued? | Lozano contends court should not dismiss without proper diligence. | Enterprise seeks dismissal, potentially with prejudice, for failure to timely serve. | Flexible due-diligence standard applies to foreign-service dismissals; not automatically with prejudice. |
| Whether the district court erred by dismissing with prejudice given likely statute-barred refiling. | Lozano argues refiling would be barred by Mississippi three-year statute of limitations. | Enterprise argues dismissal with prejudice was proper for failure to prosecute. | Because refiling likely barred, Millan standard governs; dismissal with prejudice not warranted here. |
| Should Hague Convention/service abroad be pursued to avoid untimely service? | Lozano pursued Hague-based service and indicated willingness to further efforts. | Enterprise challenged delays and preferred dismissal. | Flexible due-diligence supports continued pursuit of foreign service; not a fatal defect. |
Key Cases Cited
- Millan v. USAA Gen. Indem. Co., 546 F.3d 321 (5th Cir. 2008) (standard for with-prejudice dismissal when statute may bar refiling; need contumacious delay)
- Lucas v. Natoli, 936 F.2d 432 (9th Cir. 1991) (foreign service timing and flexible window interpretation)
- Nylok Corp. v. Fastener World Inc., 396 F.3d 805 (7th Cir. 2005) (flexible due-diligence standard for foreign service)
- USHA (India), Ltd. v. Honeywell Int’l, Inc., 421 F.3d 129 (2d Cir. 2005) (foreign service within 4(f) contexts and timeliness)
- O’Rourke Bros. Inc. v. Nesbitt Burns, Inc., 201 F.3d 948 (7th Cir. 2000) (court’s docket-control and dismissal authority)
- Burnham v. Superior Court, 495 U.S. 604 (U.S. 1990) (personal service abroad satisfies due process)
- Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923 (Miss. 2006) (Mississippi statute of limitations context)