USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1278
MARY OSBORNE,
Plaintiff - Appellant,
v.
SANDOZ NUTRITION CORP.,
Defendant - Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Aldrich and Coffin, Senior Circuit Judges.
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Kevin M. Walkowski, with whom Matthew J. Ryan, Jr., Michael
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K. Callan and Doherty, Wallace, Pillsbury & Murphy, P.C. were on
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brief for appellant.
Thomas J. Scannell, with whom Bowditch & Dewey was on brief
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for appellee.
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October 6, 1995
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Per Curiam. Plaintiff-Appellant, Mary Osborne
Per Curiam.
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("Osborne"), appeals the district court's dismissal of her
complaint for insufficient service of process. For the reasons
stated below, we affirm.
BACKGROUND
BACKGROUND
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Osborne brought a personal injury suit in Hampden
County Superior Court for the Commonwealth of Massachusetts on
August 30, 1994 against defendant-appellee, Sandoz Nutrition
Corporation ("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 date of
filing (i.e., on or before November 28, 1994), and mandated
dismissal unless she showed good cause for untimely service. On
November 30, 1994, Osborne filed with the state court an
Emergency Motion to Extend Tracking Order to Allow Service of
Process ("Emergency Motion"), which defendant opposed. Osborne
completed service of process on Sandoz on December 29, 1994, one
month after the deadline and with the Emergency Motion still
pending. On January 13, 1995, the action was removed upon
Sandoz' motion, pursuant to 28 U.S.C. 1332 and 28 U.S.C.
1441, to the United States District Court for the District of
Massachusetts. On January 23, 1995, Sandoz moved to dismiss,
asserting insufficient service of process pursuant to
Massachusetts law.
The district court granted Sandoz' motion to dismiss.
The district court reasoned that, under Federal Rule of Civil
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Procedure 81(c), Massachusetts Rule of Civil Procedure 4(j)
applies relative to the time frame for effectuating service of
process, and that, under Massachusetts case law, Osborne failed
to show good cause for failure to serve process in a timely
manner. Final judgment was entered on March 6, 1995, and Osborne
filed this appeal on March 9, 1995.
On appeal, Osborne contends that 28 U.S.C. 1448
mandates application of Federal Rule of Civil Procedure 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
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The district court's decision as to which procedural
rule applies is a question of law subject to plenary review. See
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New Hampshire Ball Bearings v. Aetna Casualty and Surety Co., 43
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F.3d 749, 752 (1st Cir. 1995); LoVuolo v. Gunning, 925 F.2d 22,
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25 (1st Cir. 1991). We view this appeal as involving the
straightforward application of state procedural law regarding
service of process prior to removal to 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 district court. Fed. R. Civ. P. 81(c). See
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Winkels v. George A. Hormel & Co., 874 F.2d 567, 570 (8th Cir.
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1989); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168
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(3d Cir. 1976). See also Garden Homes, Inc. v. Mason, 238 F.2d
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651, 653 (1st Cir. 1956).
In this respect, we reject Osborne's contention that 28
U.S.C. 1448, which governs procedure only after removal to
federal court, mandates application of Federal Rule of Civil
Procedure 4(m). Osborne asserts that service of process was
"unperfected" or "defective" within the meaning of 28 U.S.C.
1448 as of the date of removal because her 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 applied by federal courts in
determining whether there were procedural deficiencies 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. Fed. R. Civ. P. 81(c); Winkels, 874 F.2d at
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570. Osborne had the same opportunity before the district court
to demonstrate good cause for failure to timely serve process
that she would have had before the state court had the case not
been removed to district court.
Furthermore, we agree with the district court's
conclusion that the doctrine enunciated in Hanna v. Plummer, 380
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U.S. 460 (1965), and the provisions of 28 U.S.C. 1448 do not
apply. Applying Section 1448 would ignore Osborne's procedural
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deficiency in state court, and effectively penalize Sandoz for
exercising its removal right. We decline to use Section 1448, as
the district court noted, to "breathe jurisprudential life in
federal court to a case legally dead in state court." Witherow,
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530 F.2d at 168.
We turn to the district court's application of
Massachusetts precedent (as opposed to federal precedent) in its
determination of whether Osborne demonstrated good cause for her
failure to timely serve process. Contrary to Osborne's
contentions, we note that once the district court correctly
decided to apply Massachusetts Rule of Civil Procedure 4(j), it
correctly applied 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. Benjamin v. Grosnick, 999 F.2d
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590, 591 (1st Cir. 1993). Based on our review of the record
below, we find no abuse of discretion by the district court in
its finding that Osborne failed to demonstrate good cause for
failure to timely serve process. See Hull v. Attleboro Savings
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Bank, 33 Mass. App. Ct. 18, 26 (1992); Shuman v. The Stanley
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Works, 30 Mass. App. Ct. 951 (1991).
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In sum, we find that the district court applied the
correct legal standards and did not abuse its discretion in
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dismissing Osborne's complaint for insufficient service of
process. Affirmed.
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