Lesnik v.Eisenmann SE

Background

Plaintiffs Gregor Lesnik and Stjepan Papes sued Eisenmann SE and others. One defendant was D2N Tehnologije d.o.o. Plaintiffs filed proof that they believed showed D2N had been served, and the Clerk later entered D2N’s default.

The court denied plaintiffs’ first motion for default judgment because they had not addressed subject-matter and personal jurisdiction or the factors relevant to default judgment. D2N then appeared specially and moved to set aside the default, arguing that service violated Federal Rule of Civil Procedure 4 and the Hague Service Convention. On February 10, 2021, the court granted that motion, finding that service was improper and that there was good cause to set aside the default.

Service deadline

In a later case-management filing, plaintiffs acknowledged that they still had not served D2N under the Hague Service Convention. The court ordered plaintiffs to file proof of service by April 19, 2021, and warned that failure to do so would result in D2N’s dismissal without prejudice.

The court explained that the federal rules governing service on a foreign corporation do not set an express deadline, and that the Ninth Circuit had not specifically imposed one for serving a foreign defendant. Even so, district courts have authority to control their dockets and set deadlines for foreign service. A court may also dismiss a case when service abroad is not pursued diligently.

Ruling

Plaintiffs missed the court’s April 19 deadline. The court found that service on D2N had not been pursued diligently and dismissed D2N Tehnologije d.o.o. from the case without prejudice. Judge Lucy H. Koh signed the order.