Flickinger v. Castillo

Background

Jason Archie Flickinger sued dozens of defendants and later filed an amended complaint. The defendants fell into three groups: individuals residing in California, individuals residing in Mexico, and government entities within Mexico, including Mexico itself. Flickinger, who was representing himself, said that he had tried for about three months to serve the defendants through email, Facebook, WhatsApp, and written communications delivered by his current Mexican counsel. He moved for an extension of time to complete service and for permission to serve individual defendants through publication on a website.

Legal standards

Federal Rule of Civil Procedure 4 generally requires service within 90 days after the complaint is filed. If service is not completed on time, the court may dismiss the action against an unserved defendant or order service within a specified time. A plaintiff seeking to avoid dismissal must show good cause, which at minimum means excusable neglect. The court also considered whether Flickinger had shown that the defendants received actual notice, would not be prejudiced, and that Flickinger would be severely prejudiced if the case were dismissed for failure to serve.

Rule 4 allows a court to authorize alternative service on individuals outside the United States when the method is not prohibited by an international agreement. The method must also be reasonably calculated to notify the defendants about the case and give them an opportunity to respond. The court noted that it cannot authorize alternative service of foreign government entities. Flickinger’s motion sought alternative service only for individual defendants.

Court’s analysis

The court found good cause for Flickinger’s failure to serve the defendants because his described efforts showed diligence. But the 90-day service deadline does not apply to service outside the United States. The court therefore extended the service deadline only for defendants located within the United States. Flickinger could continue attempting service outside the United States without that deadline, but he still had to pursue service diligently.

The court denied the request for website publication because Flickinger provided no documentary evidence supporting his general assertions that service had failed despite diligent efforts. He also provided no documentary evidence that the defendants knew about his website. Without that evidence, the court could not determine that publishing notice on the website would actually notify the defendants of the lawsuit as required by due process.

Disposition

The court granted in part and denied in part the motion. It extended Flickinger’s deadline to complete service to October 14, 2024, for defendants located within the United States. It denied, without prejudice, permission to serve defendants through alternative means at that time. Flickinger may renew that request if he provides evidence showing both diligent but unsuccessful service efforts and that the proposed method would actually notify the defendants.