936 F.2d 432 - Lucas v. Natoli — 936 F.2d 432

How this case has been cited

Cited by 20 later decisions — most recently December 2015

2 federal appellate ·

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Hugh Richard Koss, Lillick & Charles, San Francisco, Cal., for defendants-appellants.

¶2Earl P. Dolven, Phillips Greenberg, Dol-ven & Strain, San Francisco, Cal., George E. Moore, Oliver, Sloan, Moore, Vargas, McMillan, Jacobs & Pico, Pasadena, Cal., for plaintiff-appellee.

¶3Before NORRIS, HALL and TROTT, Circuit Judges.

¶5PER CURIAM:

¶6This is an interlocutory appeal certified under 28 U.S.C. § 1292(b). Appellants, who were named as defendants in a civil action filed in the United States District Court for the Southern District of California, were served in a foreign country eleven months after the complaint was filed. The question certified for this appeal is whether the requirement of Fed.R.Civ.P. 4(j) that the complaint be served within 120 days after filing applies to service in a foreign country. The district court ruled that it did not because of the plain language of Rule 4(j), which reads, in relevant part: “This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule.” 1 Subdivision (i) of Rule 4 in turn specifies the manner of service in foreign countries.

¶7We agree with the district court that the plain language of Rule 4(j) makes the 120-day service provision inapplicable to service in a foreign country, and so hold.

¶8 *433Appellants’ sole argument to the contrary is to no avail. Relying on two cases, Montalbano v. Easco Hand Tools, 766 F.2d 737, 740 (2d Cir.1985), and Gordon v. Hunt, 116 F.R.D. 313, 318 n. 17 (S.D.N.Y.1987), aff'd 835 F.2d 452 (2d Cir.1987), cert. denied, 486 U.S. 1008, 108 S.Ct. 1734, 100 L.Ed.2d 198 (1988), they argue that service in a foreign country must at least be attempted within 120 days. These cases are, however, inapposite. Each case was dismissed under Rule 4(j) because no service had been effected anywhere at the time of the order of dismissal. Accordingly, the question whether the 120-day requirement of Rule 4(j) applies to service in a foreign country was irrelevant.

¶9We find the controlling language of Rule 4(j) so clear that it allows no latitude for interpretation. Whether or not the Rules of Civil Procedure should be amended to deal more adequately with the question of service in foreign countries is not for us to decide.

¶10Appellants urge us to reach certain issues of personal jurisdiction. Because they were not certified for this appeal, we have no jurisdiction to do so.

¶11AFFIRMED.