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![14. It is therefore axiomatic that the Court's endorsement of the Requests did not assess whether Plaintiff complied with Rule 4(m).
In this context, Esposito v. TipRanks, Ltd., No. 22-CV-7937 (LJL), 2024 WL 68528 at 1 (S.D.N.Y. Jan. 4, 2024) is instructive. There, the plaintiff filed a letter motion for an extension of time to serve a foreign defendant. The Court granted that letter motion in a two-page Memorandum & Order setting forth the applicable legal standard, restating the relevant facts and affirmatively concluding that plaintiff had reasonably attempted service within 90-days of filing the complaint.
Id. (Dkt. 11). Here, by contrast, no such findings or conclusions were made.
(d) The filing of a Rule 6 motion for extension of time is only one of three factors Courts consider when assessing whether service was done timely.
Plaintiff's argument that her Extension Requests bar Defendant's motion pursuant to Rule 12(b)(5) based on untimely service also contravenes established case law according to which "whether or not the plaintiff has moved under Fed.R.Civ.P. 6(b) for an enlargement of time in which to effect service" is only one of three factors "courts... consider in determining whether good cause exists to warrant service outside the [90] day limit." Gowan, supra, at 359-60, citing Gordon v. Hunt, 116 F.R.D. 313, 319-321 (S.D.N.Y.1987). Accordingly, a motion for extension of time does not per se establish that a plaintiff complied with Rule 4(m). The plaintiff must also show that the delay in service was the result of mere inadvertence, or whether there has been a reasonable effort to effect service " Id. at 359 (internal citations omitted).
'Consequently, no good cause or diligence is established if a request for an extension of time only became necessary because a plaintiff did not diligently attempt to locate and serve a defendant or where a plaintiff did nothing but file for an extension and otherwise stayed inactive in serving the defendant. See…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:5nyg3lfgt6m67tftnipmk4c3/bafkreigxubsgpiwo4gamya5ckj2dflmk7j5mpv52ofaiytsdhp4xxpffbm@jpeg)
![are taken to effectuate service on a foreign defendant, courts have held that the failure to take further steps makes the subsequent passage of time unreasonable.") (collecting cases). Here, as the Opening Brief sets forth in detail and as will be further set forth below, Plaintiff has not shown that there have been any reasonable efforts to effect service. See infra C.
B. The November 4, 2021, email to the process server does not constitute a reasonable attempt to serve Defendant and the foreign country exception in Rule 4(m) does not apply.
Plaintiff claims that the foreign country exception applies because a first service attempt upon Defendant was timely made within 90 days of removal of the complaint on November 4, 2021, when the office of Plaintiff's counsel sent an email to a process server requesting that the summons and complaint be served upon all Defendants. See Exhibit B to Declaration of Alan A. Greenberg in Support of Opp. ("Decl."). But the email alone is insufficient to show that Plaintiff properly commenced service efforts. While courts have held that the hiring of a process server may constitute an attempt of service, such an attempt must be reasonable in order to trigger the application of the foreign country exception. See, e.g., Esposito v. TipRanks, Ltd., No. 22-CV-7937 (LJL), 2024 WL 68528, at 1 (S.D.N.Y. Jan. 4, 2024) ("The Court observed that Rule 4(m)'s deadline does not apply to service on a corporation outside the United States, as long as the plaintiff has exercised due diligence in attempting to serve the defendant in a foreign country.") (emphasis added), Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 116 (S.D.N.Y. 2010) ("Plaintiffs have not met their threshold requirement of reasonably attempting to effect service on [foreign] defendants...") (emphasis added).
Here, the email to the process server does not constitute such a reasonable attempt because the email only lists a California address and does not me…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:5nyg3lfgt6m67tftnipmk4c3/bafkreib3du3y2fql427jfp2pwnv2rytkpxkbrdjjrefvakxbtbql7igp7e@jpeg)
![likely living in Wellington, New Zealand; nor does Plaintiff explain what (if anything) was done during that time to investigate Defendant's place of residence.
Even more concerning is the second 17 months long period of inactivity between the November 4, 2021, email and Plaintiff's first (Court-ordered) status report and Extension Request on April 21, 2023. Based on the representations in the status report and based on Plaintiff's admissions in her Opposition, it took Plaintiff 17 months simply to verify that Defendant was residing in New Zealand even though she knew at the time she filed the initial complaint that Defendant was likely living in Wellington, New Zealand. See Opening Brief at 3-4.4 But it took the process server (once retained) only a few days to verify Defendant's address and start serving him. Id. at 10. This conclusively proves that the delay was caused because Plaintiff was simply "unwilling[] to inquire diligently as to the party's location." Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 352 (S.D.N.Y. 2005) (granting motion to dismiss).
Lastly, Plaintiff fails to offer any plausible evidence showing why Plaintiff waited six months until October 21, 2023, after the court endorsed the second Extension Request to hire a process server in New Zealand.
Plaintiff tries to excuse these delays by alleging that Ms. Mallgrave who according to Plaintiff had been the primary client contact and the attorney responsible for locating and serving Mr. Euringer left the firm on September 29, 2023. See Opp. at 16; Decl. 18. But that is a red herring. When Ms. Mallgrave left the firm, the complaint had already been pending for over two years. For lack of any evidence, it is unclear why Ms. Mallgrave could not have located or served Mr. Euringer during that time. Indeed, based on Plaintiff's own admission, it was only after Ms.
4 Indeed, while the complaint specifically mentions Wellington as Defendant's likely place of residence, the first…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:5nyg3lfgt6m67tftnipmk4c3/bafkreih4gy3awfxeceeabx57mq3omd2fnm4v3stkun5tslrqt55chew2zy@jpeg)
![For lack of providing any applicable authority, Plaintiff has failed to show that the endorsements of the Extension Requests rendered service of the complaint timely. Indeed, that position is belied by pertinent case law on Rule 4(m).
2. Pertinent case law on Rule 4(m) belies Plaintiff's position that the Court, by endorsing the Extension Requests, ruled that Plaintiff complied with Rule 4(m).
(a) The Extension Requests were filed enormously beyond the prescribed 90-day time limit.
As Defendant explains in his Memorandum in support of Defendant's Motion to Dismiss (Dkt. 77) ("Opening Brief") "when courts consider granting an extension of time... they are [only] considering motions made by plaintiffs prior to the expiration of the [90]-day period." Brooks v. Educ. Bus Transp., No. 14-CV-3237 SJF ARL, 2015 WL 7012924, at *9 (E.D.N.Y. Nov. 12, 2015); Opening Brief at 13-14. This rule alone disqualifies the Extension Requests from being eligible vehicles that could render Plaintiff's service upon Defendant timely. See also Gowan v. Teamsters Union (237), 170 F.R.D. 356, 360 (S.D.N.Y. 1997) (granting motion to dismiss pursuant to Fed. R. Civ. P. 4 and 41(b)) ("Clearly, Gowan did not make a "reasonable effort" to effect service. Although he did request an extension pursuant to 6(b) from Judge McKenna, Gowan did not make this request until 127 days after the Complaint was filed, one week after the 120 period had already expired."). Plaintiff ignores this line of cases in its entirety.
(b) The Extension Requests did not constitute proper Rule 6(b) motions for enlargement of time.
Plaintiff also ignores the fact that her Extension Requests did not constitute proper motions for enlargement of time pursuant to Rule 6(b). The Requests were submitted after the time to ask for an enlargement had expired given that the Requests were filed well after 90 days of removal of the complaint. Thus, any request for an extension of time would have had to be brought under Rule 6(b)(1)(…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:5nyg3lfgt6m67tftnipmk4c3/bafkreiegniy7yee3zgphetfsqk2ufoxakxof532ug3hwmwsyg27ooujv44@jpeg)
![two short status reports that did not include such a showing (nor could it have because there was no excusable neglect). See Timmons v. New York State Dep't of Corr. Servs., No. 89 CIV. 6400 (LBS), 1993 WL 118517, at 4 (S.D.N.Y. Apr. 13, 1993) (granting a Rule 12(b)(5) motion to dismiss for failure to timely serve defendant).¹
(c) The Court did not rule that Plaintiff complied with Rule 4(m) when it endorsed the Extension Requests because the Court at the time was not in possession of all relevant facts.
Plaintiff is also wrong when she claims that the Court was fully appraised of all relevant facts when endorsing the Requests and thus already made a discretionary ruling that service of the complaint was timely under Rule 4(m). See Opp. passim. As just seen, the Requests did not include a showing of excusable neglect as required under Rule 6(b). The Court therefore could not have possibly passed judgment on whether Plaintiff acted diligently in attempting to serve Defendant.
Above that, as the Opening Brief sets forth in detail and as is further set forth below, the Extension Requests misstated and omitted relevant facts, thereby creating the wrong impression that Plaintiff had been diligently attempting to effect service and that Defendant avoided service.
See Opening Brief at 5-6, infra C.2 It was not until Defendant filed his motion to dismiss that the Court was presented with a complete set of relevant facts on the issue. See Opening Brief at 11-
1 "[P]laintiff never sought an enlargement of time in which to serve Dr. Rosenblum under Rule 6(b)(1) before the 120-day [now 90-day] period had elapsed, or under Rule 6(b)(2) after the period had elapsed. It is true that Steiman & Steinberg sent several letters to the Court... report[ing] to the Court that the defendant was having difficulty serving Dr. Rosenblum. However, these letters were not presented as applications under Rule 6(b) for an enlargement of time in which to serve Dr. Rosenblum, nor is this Court …](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:5nyg3lfgt6m67tftnipmk4c3/bafkreifsnhbpjpvbc7okcv7urvkywktjufgk2nk5jnbxx6n4tgzcaao3ea@jpeg)
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