Monday, November 15, 2010

CAFC Abbyy case on service of process

The CAFC noted:

The district court erred by dismissing Abbyy Software
for improper service on its own initiative. See Hemispherx
Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d
1351, 1359 (11th Cir. 2008) (“Once a defendant has
waived any objection to insufficient service of process, ‘the
court may not, either upon the defendant’s motion or its
own initiative,’ dismiss on that ground.”) (internal cita-
tions omitted); Chute v. Walker, 281 F.3d 314, 319-20 (1st
Cir. 2002). Dismissal of Abbyy Software was particularly
problematic because the district court denied Nuance any
opportunity to show that its service was proper. See
Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1111 (10th
Cir. 2008) (reversing the district court’s sua sponte dis-
missal for improper service of process under Rule 4(m)
because the court did notopportunity to be heard).
Dismissal was also particularly
problematic because the district court discusses only
service in Russia, which is irrelevant to service on Abbyy
Software, a Cypriot entity.
See Nuance Commc’ns, 2009
WL 2707390, at *1-2. Accordingly, this court reverses the
district court’s dismissal of Abbyy Software for improper
service of process under Rule 12(b)(5). Further, under
Rules 12(g) and 12(h)(1), the Abbyy defendants have
waived this defense by failing to raise it in their first
motion under Rule 12(b). See Rates Tech. Inc. v. Nortel
Networks Corp., 399 F.3d 1302, 1307 (Fed. Cir. 2005)
(advising that a litigant must exercise great diligence in
challenging service of process, as this defense is waived at
the time “the first significant defensive move is made”).


Post a Comment

<< Home