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Plumbers' Local Union No. 690 Health Plan v. Apotex Corp.

United States District Court, E.D. Pennsylvania

May 23, 2017

PLUMBERS' LOCAL UNION NO. 690 HEALTH PLAN, Plaintiff,
v.
APOTEX CORP., et al., Defendants.

          MEMORANDUM

          Anita B. Brody, J.

         I. INTRODUCTION

         Defendants Qualitest, Boca Pharmacal, Strativa Pharmaceuticals, Endo Pharmaceuticals, Inc. (collectively, “Qualitest Defendants”), Dr. Reddy's Laboratories Ltd. (“DRL Limited”), and Teva Pharmaceutical Industries, Ltd. (“Teva Ltd.”) move to dismiss the Amended Complaint for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5).[1] For the reasons set forth below, Plaintiff Plumbers' Local Union No. 690 Health Plan (“Plumbers”) has not properly served Defendants. I will deny Defendants' motions to dismiss without prejudice, however, and order Plumbers to effectuate service on Defendants within the next thirty days.

         II. DISCUSSION

         Pursuant to Federal Rule of Civil Procedure 12(b)(5), a complaint may be dismissed for insufficient service of process. Once a challenge has been made under Rule 12(b)(5) to the sufficiency of service, “the party asserting the validity of service bears the burden of proof on that issue.” Grand Entm't Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993).

         A Plaintiff who elects to effect service within a judicial district of the United States upon a domestic or foreign corporation must do so: “(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process . . . .” Fed.R.Civ.P. 4(h)(1). Rule 4(e)(1) provides that service of process may be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). Relevant Pennsylvania state law provides:

Service of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action:
(1) an executive officer, partner or trustee of the corporation or similar entity, or
(2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or
(3) an agent authorized by the corporation or similar entity in writing to receive service of process for it.

Pa. R. Civ. P. 424. Thus, service of process may be made within a judicial district of the United States upon a corporation either pursuant to relevant state law or by delivery upon an authorized agent.

         Alternatively, a corporation “may be served at a place not within any judicial district of the United States: (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents . . . .” Fed.R.Civ.P. 4(f); see Fed. R. Civ. P. 4(h)(2) (enabling service of a corporation “at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i)”).

         “Although notice underpins Federal Rule of Civil Procedure 4 concerning service, notice cannot by itself validate an otherwise defective service.” Grand, 988 F.2d at 492. A plaintiff must properly serve a defendant within 90 days after the filing of a complaint; however, this 90-day time limit does not apply to service of process in a foreign country:

If a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the ...

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