Jardines Bacata, Ltd. v. Diaz-Marquez, DIAZ-MARQUEZ

• Decision Date: 08 June 1989
• Docket Number: No. 89-1062,DIAZ-MARQUEZ,89-1062
• Citation: 878 F.2d 1555
• Parties: JARDINES BACATA, LIMITED, Plaintiff, Appellant, v. Aniceto, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1555

878 F.2d 1555

14 Fed.R.Serv.3d 1281

JARDINES BACATA, LIMITED, Plaintiff, Appellant, v. Aniceto DIAZ-MARQUEZ, et al., Defendants, Appellees.

No. 89-1062.

United States Court of Appeals, First Circuit.

Heard June 8, 1989.

Decided July 10, 1989.

Giselle Lopez Bajandas with whom Dominguez & Totti, Hato Rey, was on brief for appellant.

Marcos Valls with whom Juan A. Ramos and Cobian & Ramos, San Juan, were on brief for appellees.

Before BREYER and SELYA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

SELYA, Circuit Judge.

If it is true, as a lawyer-turned-poet once wrote, that "[e]rror is a hardy plant [which] flourisheth in every soil," M. Tupper, Proverbial Philosophy of Truth in Things False (1842), then this appeal stems from a veritable hothouse of efflorescent lapses by the parties, their counsel, and, in some respects, by the district court. We have pruned the overhanging foliage and weeded the ground cover, with mixed results.

I

The seeds of strife were sown in 1983 when plaintiff-appellant Jardines Bacata, Ltd. (JBL), a Colombian corporation, agreed to sell flowers on credit to Belinda Wholesale Florists, Inc. (Belinda). In connection therewith, Belinda's owners, Aniceto Diaz Marquez (Diaz) and Humberto Sedan Sucar (Sedan), signed and delivered a guaranty which provided in pertinent part:

That in order to induce Jardines de Bacata, Limited, a Colombian corporation dedicated to the business of producing flowers to extend credit and grant exclusivity of its flowers in Puerto Rico to Belinda Wholesale Florists Inc., the appearing parties bound themselves personally to pay the bills Belinda Wholesale Florists Inc. do not pay due to any noncompliance or for reason of bankruptcy or insolvency. Jointly and severally.

JBL thereupon began shipping flowers to Belinda. But, by 1986, the account was apparently in arrears. JBL invoked diversity jurisdiction, 28 U.S.C. Sec. 1332, and sued Belinda, Diaz, Diaz's wife, Sedan, Sedan's wife, and the stockholders' respective conjugal partnerships, in federal district court. The docket reveals that, in rather turgid succession, the following events occurred: ¹

1. February 3, 1986--plaintiff filed its complaint.

2. February 18, 1986--Sedan and his conjugal partnership were served.

3. March 14, 1986--Mr. and Mrs. Sedan filed a joint petition for personal bankruptcy, thus staying proceedings as to them. Notice of the bankruptcy was filed in the district court.

4. May 9, 1986--plaintiff's motion for leave to serve Diaz, Mrs. Diaz, and their conjugal partnership by publication was allowed.

5. July 16, 1986--Diaz, having been served, answered plaintiff's complaint.

6. January 20, 1987--Diaz moved for summary judgment. The motion was thereafter referred to a magistrate.

7. January 22, 1987--bankruptcy proceedings against the Sedans were dismissed and the automatic stay lifted. JBL notified the district court by motion filed February 2, 1987, simultaneously requesting leave to proceed against the Sedan defendants.

8. March 4, 1987--plaintiff's motion to proceed against the Sedan defendants was allowed.

9. July 13, 1987--a magistrate's report was filed recommending (i) that Diaz's Rule 56 motion be denied, and (ii) that the action be dismissed as to "Mrs. Diaz" and the Diaz conjugal partnership. ²

10. August 5, 1987--plaintiff moved for summary judgment against Diaz.

11. August 5, 1987--the district court adopted the magistrate's report and recommendations (see supra No. 9). A partial judgment was entered on August 17 dismissing the complaint against the fictitious Mrs. Diaz and the fantasmal conjugal partnership.

12. May 18, 1988--Diaz moved to require joinder of all named parties.

13. August 12, 1988--the district court denied plaintiff's motion for summary judgment (see supra No. 10) and granted summary judgment in Diaz's favor sua sponte.

14. August 12, 1988--presumably in response to Diaz's May 18 motion (see supra No. 12), the district court entered a further order (i) requiring Sedan and his conjugal partnership, both previously served (see supra No. 2), to answer by September 12 on penalty of default, and (ii) directing plaintiff to effectuate service on Belinda and Mrs. Sedan, neither previously served, within the same period.

15. September 13, 1988--plaintiff moved for a 30-day extension "within which to serve process upon Belinda Wholesale Florists, Inc." Three days later, the district court granted the extension.

16. November 2, 1988--the district court dismissed as to Belinda for want of service, and as to the Sedan defendants because "they are undergoing bankruptcy proceedings." The bankruptcy filings, of course, had been vacated long before. See supra No. 7.

17. November 14, 1988--plaintiff moved for rehearing or alternatively to set aside the November 2 order, and also moved for permission to serve Belinda by publication.

18. November 23, 1988--the district court denied plaintiff's motions, but recognized its earlier bevue and altered the basis for discharging the Sedan defendants, predicating the dismissal on JBL's unexcused "delay in prosecuting this action."

19. December 19, 1988--plaintiff filed its notice of appeal. ³

II

JBL presents us with a chase of arguments, capped by the assertion that error of one sort or another contaminated the judgments entered in favor of each and every defendant. Contrary to conventional wisdom, we believe that the forest in this instance can best be visualized by looking separately at each tree.

A. Belinda Wholesale Florists, Inc.

The district court's dismissal of the action as to Belinda must be viewed in light of Fed.R.Civ.P. 4(j). The rule provides in material part:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

Fed.R.Civ.P. 4(j). We have said that "the evident purpose of Rule 4(j) was to compel parties and their counsel to be diligent in prosecuting causes of action." United States v. Ayer, 857 F.2d 881, 884 (1st Cir.1988). We added:

There is, of course, a glaring need for such sedulity. When suit is filed, the limitations period is ordinarily tolled. Yet, until the defendants receive some formal notice of the institution of the action, they are not assured a meaningful opportunity to discover, marshall, and preserve evidence, that is, to prepare a defense. Then, too, the court has a systemic interest in the progress of its own docket and in management of a burgeoning flow of litigation. To meet this amalgam of needs, the rule provides a stern sanction--dismissal--unless service is perfected within the 120-day limit or there is "good cause" for the time overrun.

Id.

In this case, JBL filed its complaint on February 3, 1986. As of November 2, 1988--close to three years later--Belinda had not been served. In August, see supra No. 14, the district judge warned plaintiff that it was courting dismissal if it did not serve Belinda. In response, JBL asked for an extra 30 days to effectuate service. This largesse was granted long after a less patient jurist would have lowered the boom. Yet, plaintiff frittered the enlargement away. It was not until some weeks later--the extension having run out, unused--that the court ordered the dismissal. See supra No. 16. Mindful both that nearly three years had passed and that plaintiff, to this date, has not displayed good cause for neglecting to serve Belinda, we think the court acted well within its discretion. ⁴

B. Mrs. Sedan.

As to Mrs. Sedan, a dismissal for want of prosecution could seemingly rest on Rule 4(j) as well. See D.P.R.L.R. 313.1(A) (failure of compliance with Fed.R.Civ.P. 4(j) subjects case to dismissal for want of prosecution). Nevertheless, plaintiff argues that the dismissal was wrong because, though Mrs. Sedan was never served with process, she "submitted herself" to the court's jurisdiction by filing an "answer" (in the bankruptcy court) to plaintiff's complaint. We disagree.

In the ordinary course, the district court acquires jurisdiction over a defendant only by service of process. See, e.g., Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 240 F.2d 814, 816 (5th Cir.1957) ("it is settled law that, without personal service of process ... the court was without jurisdiction to render a personal judgment against [the defendant]") (footnote omitted). Of course, the root purpose underlying service of process is to ensure that a defendant receives fair notice of the suit and adequate opportunity to protect her interests. Because the requirement is designed to safeguard the defendant, she can forgo it. Thus, if a defendant, not yet served, answers the complaint against her in district court and does not assert defenses relating to personal jurisdiction or insufficiency of process, she may be deemed to have waived the requirement. See, e.g., Dernell v. Steel Partitions, Inc., 105 F.Supp. 87, 88-89 (W.D.N.Y.1952); P. Beiersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. 282, 283 (S.D.N.Y.1950); Food, Tobacco, Agricultural and Allied Workers Union v. Smiley, 74 F.Supp. 823, 826 (E.D.Pa.1946), aff'd, 164 F.2d 922 (3d Cir.1947). Cf. Fed.R.Civ.P. 12(h)(1) (discussing waiver of certain defenses).

Be that as it may, a waiver, to be effective in these circumstances, must unequivocally show an intention to submit to the district court's jurisdiction. Cf. Irons v. FBI, 811 F.2d 681, 686 (1st Cir.1987) ("the common denominator of all the legal definitions of 'waiver' is the purposeful relinquishment of an appreciated right"). Certainly, there was no express waiver here. The mere docketing of a motion in the bankruptcy court acknowledging plaintiff's claim and commenting upon it, even...