United States District Court, E.D. Pennsylvania
PLUMBERS' LOCAL UNION NO. 690 HEALTH PLAN, Plaintiff,
APOTEX CORP., et al., Defendants.
B. Brody, J.
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). 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.
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).
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.
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
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
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 ...