JOHN A. MCCURDY, JR., M.D.; JOHN A. MCCURDY, JR., M.D., FACS, INC., Appellants v. AMERICAN BOARD OF PLASTIC SURGERY
No. 97-1971
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 22, 1998
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 97-cv-03047)
9-22-1998
McCurdy v. Amer Bd Plastic
Precedential or Non-Precedential:
Docket 97-1971
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Recommended Citation
“McCurdy v. Amer Bd Plastic” (1998). 1998 Decisions. Paper 232. http://digitalcommons.law.villanova.edu/thirdcircuit_1998/232
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
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* Hon. John Feikens, Senior District Judge, United States District Court for the Eastern District of Michigan, sitting by designation.
SLOVITER, Circuit Judge.
This appeal requires us to consider the intersection of Rules
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,
The instant appeal involves only defendant ABPS, which was served with both the original and amended complaints
On January 17, 1997, ABPS moved to dismiss McCurdy‘s claims under Rules
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.”
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
II.
McCurdy argues on appeal that the district court erred in determining that failure to effect service in compliance with
Rule
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
In turn, Rule
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.
Thus, if a Rule 12 motion is made and the defendant omits its objection to the timeliness or effectiveness of
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
On its face, the language of Rule
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
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
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
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;
Finally, we note that, having objected pursuant to Rule
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
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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
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
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