Gibbs v. Paley, Civ. No. 1121-72.

• Decision Date: 23 February 1973
• Docket Number: Civ. No. 1121-72.
• Citation: 354 F. Supp. 270
• Parties: John H. GIBBS, Plaintiff, v. Leon D. PALEY, Defendant.
• Court: U.S. District Court — District of Puerto Rico

354 F. Supp. 270

John H. GIBBS, Plaintiff, v. Leon D. PALEY, Defendant.

Civ. No. 1121-72.

United States District Court, D. Puerto Rico.

February 23, 1973.

Patrick Wilson, for O'Neil & Borges Law Offices, San Juan, P. R., for plaintiff.

Stanley Feldstein, for Nachman, Feldstein & Gelpi, San Juan, P. R., for defendant.

MEMORANDUM OPINION

CANCIO, Chief Judge.

The disposition of plaintiff's motion to remand this cause to the Superior Court of the Commonwealth of Puerto Rico requires a determination as to the date on which the thirty-day term for removal commenced. 28 U.S.C. Sec. 1446(b). The issue is whether any "receipt" by the defendant of copies of pleadings is sufficient, or whether the "receipt" is conditioned on compliance with the procedural rules under which service is attempted.

This action was commenced by the filing of a complaint in the Superior Court of Puerto Rico. In a motion requesting the Superior Court to fix the term in which defendant would be required to answer, plaintiff stated that service would be effected pursuant to Rule 4.7 of the Rules of Civil Procedure for the General Court of Justice of the Commonwealth of Puerto Rico (hereinafter referred to as the Puerto Rico Rules). 32 L.P.R.A., App. II, R. 4.7. Following the order of the Superior Court, plaintiff's counsel mailed to defendants copies of the summons, complaint, and other documents filed in the Superior Court. The documents were in the Spanish language in accordance with practice in the courts of Puerto Rico, 32 L.P.R.A. App. II, R. 8.5, and translations were not inclosed. The mailing was received by the defendant on October 30, 1972. It is this receipt which plaintiff contends commenced the term for removal and therefore the petition for removal filed on December 15, 1972, was not timely.

Defendant, on the other hand, insists that this receipt of the documents was ineffective to start the term for removal since the mailing did not meet the requirements of the rule under which it was purportedly made. Although plaintiff now argues to the contrary, he tacitly acknowledged that the first attempt at service was defective by mailing a second set of copies of the documents to the defendant, after service on the Secretary of State of Puerto Rico. This second service was received personally by defendant on November 27, 1972, and if this second receipt commenced the term for removal, the petition was timely.

Rule 4.7 of the Puerto Rico Rules, supra, provides for substituted service when jurisdiction is based on the transaction of business in the Commonwealth of Puerto Rico. Schering Transamerica Corporation v. Torres Canet, 290 F. Supp. 362 (D.P.R., 1968). Where jurisdiction is otherwise present, service upon a nonresident or absent defendant may be made by personal service outside the jurisdiction. Rule 4.3; or by publication, Rule 4.5. 32 L.P.R.A., App. II, R. 4.3 and 4.5. In addition to establishing the jurisdictional bases in subsection (a), Rule 4.7 in subsection (b) establishes the procedure to be followed in effecting service thereunder. The pertinent portion reads as follows:

". . . a copy of the summons and of the complaint shall be served upon the Secretary of State or upon his designee, and the plaintiff shall forthwith send to the defendant a copy of those documents by registered mail with return receipt." 32 L.P.R. A., App. II, R. 4.7(b). (Emphasis supplied).

Defendant contends that the order of the Superior Court fixing the time in which defendant was required to answer was insufficient and that the service was therefore defective. The motion addressed to the Superior Court did not contain any asseverations from which jurisdiction under Rule 4.7(a), supra, could be determined. Reliance is placed on Mundo v. Fúster, 87 P.R.R. 343, (1963) for the proposition that the impossibility of personally notifying the defendant must be satisfactorily established for the judge issuing the order for substituted service. It is also noted that the order does not direct substituted service, but merely repeats plaintiff's statement that service will be effected pursuant to Rule 4.7. This goes to the issue of compliance with the rule on service and is covered by the discussion which follows.

It has been held that receipt by the defendant of the initial pleading will not suffice to start the running of the term for removal where the procedure followed by plaintiff is not sanctioned by state law. Rodríguez v. Hearty, 121 F. Supp. 125 (S.D.Tex., 1954); Moore v. Firedoor Corporation of America, 250 F.Supp. 683 (D.Md., 1966). Plaintiff here appears to argue at the outset that any receipt by defendant of copies of the summons and complaint is sufficient. However, he cites Potter v. McCauley, 186 F.Supp. 146 (D.Md., 1960), which holds to the contrary.

The true issue here is whether plaintiff did comply with Rule 4.7 of the Puerto Rico Rules, supra. The resolution of this issue depends upon whether the word "forthwith" as used in the Rule means "before, after, or simultaneously with", as plaintiff contends; or whether it means only "immediately after" as defendant contends. Statutory construction is not required here. The meaning of the language used is not in doubt, as will appear.

The Puerto Rico Rules were first promulgated in Spanish. Thereafter, in view of the bilingual system in use in this jurisdiction, an official translation into English was made. In these circumstances, in case of discrepancy between the two versions, the Spanish prevails. Civil Code of Puerto Rico, Sec. 13, 31 L.P.R.A. Sec. 13; Coll v. Secretary of the Treasury, 82 P.R.R. 26 (1960); Basora v. Padilla, 62 P.R.R. 315 (1943).

Rule 4.7(b) in the original Spanish version uses the word "Inmediatamente" where the English version uses "forthwith". As appears from the very spelling of the word in Spanish, the more literal translation is "immediately". Actually, however, there is no discrepancy in meaning. "Forthwith" is defined as "immediately; without delay; hence, within a reasonable time; promptly and with reasonable dispatch." "Immediately" means "without interval of time; without delay; straightway." Webster's New International Dictionary of the English Language (2d ed. unabr., 1953). These definitions all indicate relation to some other time,...