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Martinez v. Aero Caribbean

United States District Court, Ninth Circuit

January 28, 2014

LORENZO MENDOZA MARTINEZ, ELIU MENDOZA, ELIEZER MENDOZA MARTINEZ, and GLORIA MARTINEZ MONTES, Plaintiffs,
v.
AERO CARIBBEAN, EMPRESA AEROCARIBBEAN S.A., CUBANA DE AVIACION S.A., and GIE AVIONS DE TRANSPORT REGIONAL, Defendants.

ORDER DENYING MOTION FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT AND VACATING HEARING

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this wrongful-death and negligence action stemming from an aircraft crash in Cuba, plaintiffs move for entry of default and default judgment. For the reasons stated below, the motion is DENIED.

Plaintiffs must file a plan calculated to achieve proper service by NOON ON FEBRUARY 11, 2014. Otherwise, this action will be dismissed. The hearing on February 6, 2013, is VACATED.

STATEMENT

Plaintiffs are surviving family members of a passenger who died in an aircraft crash. Defendants Aero Caribbean, Empresa Aerocaribbean S.A., and Cubana De Aviacion S.A. are several entities that allegedly owned, maintained, and operated the aircraft. To date, none of these defendants has appeared in this matter. A fourth defendant, GIE Avions De Transport Regional, appeared in this action but has already been dismissed for lack of personal jurisdiction. Accordingly, GIE Avions De Transport Regional is not a subject of this motion.

Plaintiffs filed the complaint on June 28, 2011. According to the complaint, defendants' principal place of business is in Cuba. Because plaintiffs were having difficulty serving defendants, a case management order dated October 27, 2011 extended the time for serving all defendants until January 12, 2012. On that day, counsel appeared for a case management conference and reported the following as to service:

We have been diligent, and the last time we were here, they had - service wasn't complete. We went back and researched every possible way we could serve them, and it comes down to what we have done, which is to send notice of this lawsuit by mail. Because of the nature of the diplomatic relationship between the United States and Cuba, the mail doesn't get there expeditiously. It has to be mailed to New York and sent to Cuba. It has now left New York, and we will be notified when it reaches Cuba. When it does reach Cuba, either of which could be applied to service in this case, service will be complete and that defendant, then, will either have to appear or will be in a position to take default and move forward.

No further events took place until an order dated January 9, 2013, requested a status report. Plaintiffs responded with a request to vacate the trial date and to set a further status conference, given their appeal of the dismissal of GIE De Avions De Transport Regional. Both requests were granted, and another case management conference was set for October 3, 2013. Plaintiffs were then ordered to either file a dismissal or a motion for default for hearing in January 2014. That same day, plaintiffs mailed the complaint to defendants and Alberto Vizcaino Zamora, an attorney in Mexico who stated he represented "Aerocaribbean and its insurers in connection with the air accident, " via registered mail with return receipts requested (Dkt. No. 70, Martinez Exh. 2 at F). On November 19, 2013, plaintiffs sought default from the Clerk but were rejected because there has been no showing defendants received and signed for process.

Plaintiffs now move for both entry of default and default judgment. The order considers the motion below.

ANALYSIS

Proper service of process must be demonstrated before a default may be entered against a defendant. Md. State Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996). Plaintiffs move for default on the theory that they have properly served and defendants have failed to timely respond. The issue thus becomes whether service is proper here, under the governing authority of FRCP 4, and if not, whether the order should direct service pursuant to said authority.

1. FRCP 4(h)(2) INCORPORATES 4(f) AND GOVERNS SERVICE IN THIS CASE.

FRCP 4(h)(2) provides that corporations not within the judicial districts of the United States must be served "in any manner prescribed by [FRCP 4](f) for serving an individual, except personal delivery under (f)(2)(C)(I)." Accordingly, under FRCP 4(f), there are three subsections on which plaintiffs can rely on for proper ...


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