Kolker v. Hurwitz

269 F.R.D. 119 (D.P.R. 2010)



When serving an individual within a judicial district of the United States, process can served by following the laws of the jurisdiction where either the district court sits or where service is made. Fed. R. Civ. P. 4(e)(1). Also, service may be made by either: (1) delivering a copy of a summons and complaint to the individual personally; (2) leaving a copy of the summons and complaint at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (3) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e)(2)


The landowner sued his neighbous regarding a property he and his deceased wife bought. He left process with a security guard at the neighbors' residence. The defendant neighbors sought the dismissal of the action for improper service.


Was the process directed to the defendant neighbors properly served when left with the security guard of the neighborhood?




The neighbors were not served because, (1) under P.R. Laws Ann. tit. 32, App. III R. 4.5 and 4.7, the landowner did not show an authorized edict was published or that he sent them process by certified mail with acknowledgment of receipt; (2) he did not show he personally served them, mailed process by registered or certified mail, return receipt requested, under Tex. R. Civ. P. 106(a), or had leave to serve under Texas R. Civ. P. 106(b); (3) they were not personally served under Fed. R. Civ. P. 4(e)(2)(A); (4) nothing showed the guard had to tell them of the process, under Fed. R. Civ. P. 4(e)(2)(B); (5) nothing showed an agent was served; and (6) nothing showed they appointed their attorney to receive service under Fed. R. Civ. P. 4(e)(2)(C). The homeowner could, under Fed. R. Civ. P. 15(a), file a second amended complaint because the proceedings were at an early stage and defendants would not be prejudiced, but the neighbors had to be removed from the complaint. The other defendants' motion to dismiss and for attorneys' fees was moot because the amended complaint cured the deficiencies it stated.

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