Osborne v. Sandoz Nutrition, 1st Cir. (1995)

USCA1 Opinion
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1278
MARY OSBORNE,
Plaintiff - Appellant,
v.
SANDOZ NUTRITION CORP.,
Defendant - Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]

__________________________
____________________
Before
Torruella, Chief Judge,

___________
Aldrich and Coffin, Senior Circuit Judges.

_____________________
_____________________
Kevin M. Walkowski, with whom Matthew J. Ryan, Jr.,

__________________
____________________
Michael
_______
K. Callan and Doherty, Wallace, Pillsbury & Murphy, P.C. were on

__________
__________________________________________
brief for appellant.
Thomas J. Scannell, with whom Bowditch & Dewey was on brief

___________________
________________
for appellee.
____________________
October 6, 1995
____________________
Per
Curiam.
Per
Curiam.
____________
Plaintiff-Appellant,
Mary
Osborne
("Osborne"),
complaint
appeals
the
district
court's
dismissal
for insufficient service of process.
of
her
For the reasons
stated below, we affirm.
BACKGROUND
BACKGROUND
__________
Osborne brought
County Superior
August
30,
1994
Corporation
personal
injury
suit
in
Hampden
Court for
the Commonwealth of
Massachusetts on
against
defendant-appellee,
Sandoz Nutrition
("Sandoz").
Osborne
failed
to
comply
with
Massachusetts Rule of Civil Procedure 4(j), which required her to
effect service of her
complaint within 90 days from the
filing
before November
(i.e., on
dismissal
November
or
28,
1994), and
date of
mandated
unless she showed good cause for untimely service.
30,
1994,
Osborne
filed
with
the
state
court
On
an
Emergency
Motion to
Process ("Emergency
completed
month
Sandoz'
Order to Allow
Service of
Motion"), which defendant opposed.
Osborne
service of process on Sandoz on December 29, 1994, one
after the
pending.
Extend Tracking
On
deadline and
January
13, 1995,
motion, pursuant
1441, to the
asserting
Emergency Motion
action was
1332
District Court for
On January
insufficient
the
to 28 U.S.C.
United States
Massachusetts.
with the
23, 1995,
service
of
removed
and 28
upon
U.S.C.
the District
Sandoz moved to
process
still
of
dismiss,
pursuant
to
Massachusetts law.
The
The district
district court granted
court reasoned
Sandoz' motion to dismiss.
that, under Federal
-2-
Rule of
Civil
Procedure
81(c),
applies relative
process, and
Massachusetts
to the time
Rule of
Civil
Procedure
frame for effectuating
that, under Massachusetts case
for failure
to
4(j)
service of
law, Osborne failed
to show
good cause
serve process
in a
timely
manner.
Final judgment was entered on March 6, 1995, and Osborne
filed this appeal on March 9, 1995.
On
mandates
appeal,
Osborne contends
application of
Federal
that
Rule of
28
U.S.C.
Civil Procedure
1448
4(m)
(which
provides
Osborne with
120
days
to effect
service
of
process from the date of removal) and that, even if Massachusetts
Rule
of Civil
Procedure 4(j)
applies, Osborne
can demonstrate
good cause for the delay in service of process.
DISCUSSION
DISCUSSION
__________
The district
court's decision
as to which
procedural
rule applies is a question of law subject to plenary review.
See
___
New Hampshire Ball Bearings v. Aetna Casualty and Surety Co., 43

____________________________
_____________________________
F.3d
25
749, 752 (1st Cir. 1995);
(1st Cir.
straightforward
service
1991).
We view
application
of process
prior
LoVuolo v. Gunning, 925 F.2d 22,

_______
_______
this
of state
to removal
appeal as
procedural
to
involving
the
law regarding
federal court.
The
district court
correctly applied
state procedural law
prior to
removal because state law governs the service of process prior to
removal
to the
Winkels v.
_______
district court.
Fed.
R. Civ.
George A. Hormel & Co., 874 F.2d 567,

_______________________
P. 81(c).
See
___
570 (8th Cir.
1989); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168
________
___________________________
-3-
(3d
Cir. 1976).
See also Garden Homes, Inc. v. Mason, 238 F.2d

________ ___________________
_____
651, 653 (1st Cir. 1956).
In this respect, we reject Osborne's contention that 28
U.S.C.
1448,
federal
which governs
court, mandates
Procedure 4(m).
application
Osborne
asserts that
"unperfected" or "defective"
1448 as of
procedure only
after
removal to
of Federal
Rule of
service
of process
within the meaning
the date of removal because her
Civil
was
of 28 U.S.C.
Emergency Motion was
still pending before the state court when the action was removed.
We reject Osborne's argument because the district court, pursuant
to the general rule that state law governs sufficiency of process
prior
to
removal and
should be
determining whether there
applied
by federal
were procedural deficiencies
courts in
prior to
removal,
applied the same test
that the state
court would have
applied in deciding the Emergency Motion; that is, whether, under
Massachusetts Rule
of Civil
Procedure 4(j) and
applicable case
law, Osborne demonstrated good cause for failure to serve process
in a timely manner.
570.
Fed. R. Civ. P. 81(c); Winkels, 874 F.2d at

_______
Osborne had the same opportunity before the district court
to demonstrate
good cause
for failure
to timely
that she would
have had before the state court
serve process
had the case not
been removed to district court.
Furthermore,
conclusion that
U.S. 460
apply.
we
agree
with
the
district
court's
the doctrine enunciated in Hanna v. Plummer, 380

_____
_______
(1965), and the provisions
Applying Section 1448 would
of 28 U.S.C.
1448 do not
ignore Osborne's procedural
-4-
deficiency in
state court,
and effectively penalize
exercising its removal right.
the
district court
federal
noted, to
We decline to use Section 1448, as
"breathe jurisprudential
court to a case legally dead in state court."
530 F.2d at 168.
Sandoz for
life in
Witherow,
________
We
turn
to
the
district
Massachusetts precedent (as opposed
determination of whether Osborne
failure
to
timely
contentions,
we
serve
note that
decided to apply
court's
demonstrated good cause for her
the
Contrary
to
Osborne's
district court
correctly
Massachusetts Rule of Civil
correctly applied
of
to federal precedent) in its
process.
once
application
Procedure 4(j), it
Massachusetts precedent construing
good cause
under Massachusetts Rule of Civil Procedure 4(j).
The district court's finding that Osborne failed, under
Massachusetts Rule
of Civil
Procedure 4(j) and
applicable case
law, to show good cause for her failure to make timely service is
reviewed for abuse of discretion.
590,
591 (1st
below, we
Cir. 1993).
find no abuse of
Benjamin v. Grosnick, 999 F.2d

________
________
Based on
our
review of
discretion by the district
the record
court in
its finding
that Osborne
failure to timely serve
Bank, 33 Mass.
____
App. Ct.
failed to
demonstrate good
process.
See Hull v.
___ ____
18, 26
(1992); Shuman
______
cause for
Attleboro Savings
_________________
v. The Stanley
____________
Works, 30 Mass. App. Ct. 951 (1991).

_____
In
correct
legal
sum, we
find that
standards and
did
-5-
the district court
not abuse
its
applied the
discretion in
dismissing
process.
Osborne's
Affirmed.
________
complaint
for
insufficient
service
of
-6-

Osborne v. Sandoz Nutrition, 1st Cir. (1995)

Uploaded by

Copyright:

Available Formats

Osborne v. Sandoz Nutrition, 1st Cir. (1995)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Osborne v. Sandoz Nutrition, 1st Cir. (1995)

Uploaded by

Copyright:

Available Formats

USCA1 Opinion

[NOT FOR PUBLICATION]

SANDOZ NUTRITION CORP.,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Torruella, Chief Judge,

Aldrich and Coffin, Senior Circuit Judges.

Kevin M. Walkowski, with whom Matthew J. Ryan, Jr.,

K. Callan and Doherty, Wallace, Pillsbury & Murphy, P.C. were on

Thomas J. Scannell, with whom Bowditch & Dewey was on brief

for insufficient service of process.

For the reasons

stated below, we affirm.

Massachusetts Rule of Civil Procedure 4(j), which required her to

effect service of her

complaint within 90 days from the

unless she showed good cause for untimely service.

Motion"), which defendant opposed.

service of process on Sandoz on December 29, 1994, one

District Court for

district court granted

Sandoz' motion to dismiss.

that, under Federal

frame for effectuating

that, under Massachusetts case

law, Osborne failed

Final judgment was entered on March 6, 1995, and Osborne

filed this appeal on March 9, 1995.

process from the date of removal) and that, even if Massachusetts

good cause for the delay in service of process.

rule applies is a question of law subject to plenary review.

New Hampshire Ball Bearings v. Aetna Casualty and Surety Co., 43

749, 752 (1st Cir. 1995);

LoVuolo v. Gunning, 925 F.2d 22,

state procedural law

removal because state law governs the service of process prior to

George A. Hormel & Co., 874 F.2d 567,

570 (8th Cir.

See also Garden Homes, Inc. v. Mason, 238 F.2d

651, 653 (1st Cir. 1956).

In this respect, we reject Osborne's contention that 28

within the meaning

the date of removal because her

Emergency Motion was

We reject Osborne's argument because the district court, pursuant

to the general rule that state law governs sufficiency of process

determining whether there

were procedural deficiencies

applied the same test

that the state

court would have

applied in deciding the Emergency Motion; that is, whether, under

Procedure 4(j) and

law, Osborne demonstrated good cause for failure to serve process

Fed. R. Civ. P. 81(c); Winkels, 874 F.2d at

Osborne had the same opportunity before the district court

that she would

have had before the state court