          United States Court of Appeals
                      For the First Circuit

No. 12-2128

                    CÉSAR A. CALDERÓN SERRA,
         TERESITA PALERM NEVARES a/k/a TESSIE CALDERÓN,

                     Plaintiffs, Appellants,

                                v.

    BANCO SANTANDER PUERTO RICO, d/b/a Santander Puerto Rico
Corporation, f/k/a Banco Central Hispano, JOSÉ R. GONZÁLEZ; JUAN
 S. MORENO; MARÍA CALERO; JOSÉ ÁLVAREZ; JAMES RODRÍGUEZ; HÉCTOR
CALVO; LOAN OFFICER A; LOAN OFFICER B; LOAN OFFICER C; INSURANCE
      COMPANY A; INSURANCE COMPANY B; INSURANCE COMPANY C,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpí, U.S. District Judge]



                              Before

                   Thompson, Lipez, and Kayatta,
                          Circuit Judges.


          Osvaldo Carlo Linares, with Carlo Defendini Díaz and
Pagán, Ortega & Defendini Law Offices, PSC, on brief, for
appellants.
          Néstor M. Méndez Gómez and Sara L. Vélez Santiago, with
whom Jason R. Aguiló-Suro and Pietrantoni Méndez & Alvarez LLC were
on brief, for appellees.

                          March 26, 2014
             KAYATTA, Circuit Judge.       Plaintiffs press a RICO claim

against their bank and others over what they claim was an unlawful

scheme to lend plaintiffs money in violation of federal margin

requirements limiting the extent to which securities can be used as

collateral for funds loaned to purchase the securities.           Granting

a motion to dismiss the complaint, the district court rejected

plaintiffs' RICO clam because the claim was based on conduct that

would have been actionable as securities fraud.                 On appeal,

plaintiffs    argue    that   the   district   court   erred   because   the

complaint does not allege fraud "in connection" with the purchase

of securities.        We disagree, and we also sustain the district

court's unrelated ruling that plaintiffs failed to properly serve

the summons and complaint on two of the defendants.

                               I. Background

             César A. Calderón Serra and Teresita Palerm Nevares (also

known as Tessie Calderón) sue Banco Santander Puerto Rico ("the

Bank");1 several officers or employees of the Bank or its parent

company (José R. González, Juan S. Moreno, María Calero, José

Álvarez, and Loan Officers A, B, and C); an officer of Santander

Securities Corporation, a wholly-owned subsidiary of the Bank

(James Rodríguez); an officer of Santander Insurance Agency (Héctor

Calvo); and several insurance companies which plaintiffs claim


     1
       Plaintiffs name the Bank as a defendant in the alternative,
based on a potential wrinkle in their RICO liability theory. For
present purposes, we treat the Bank as a defendant.

                                     -2-
hold relevant insurance policies.            Because the bulk of this appeal

arises from the district court's dismissal of plaintiffs' second

amended complaint2 under Federal Rule of Civil Procedure 12(b)(6),

we will assume the factual allegations in that complaint to be true

and    draw     from   them   any   reasonable      inferences     suggested   by

plaintiffs.

               The Bank makes money, in part, by making loans to its

customers.       The Bank's subsidiary, Santander Securities, makes

money by selling and buying securities for its customers.                Most of

the individual defendants earn salaries, commissions, bonuses, and

other benefits when the Bank and Santander Securities conduct those

same       transactions.      The   Bank    enticed    plaintiffs,    with   what

plaintiffs thought were fixed-rate loans, to borrow money from the

Bank to buy and trade securities through Santander Securities. The

problem,       plaintiffs     claim,   is    that     the   Bank   intentionally

concealed, with false documentation and otherwise, that the entire

arrangement violated Regulation U, 12 C.F.R. Ch. II, Pt. 221, a

regulation issued by the Board of Governors of the Federal Reserve




       2
       We use "second amended complaint" to refer to the document
titled "Amended Complaint" which plaintiffs filed on November 2,
2011, as distinct from the "First Amended Complaint," which was
attached to plaintiffs' earlier motion for leave to amend but which
was not separately filed on the docket after that motion was
granted.

                                       -3-
Board pursuant to the Securities Exchange Act of 1934, 15 U.S.C.

§ 78a, et seq.3   See 12 C.F.R. § 221.1(a).

          By   its   express   terms,   Regulation   U   "imposes   credit

restrictions   upon    persons    other   than   brokers     or     dealers

(hereinafter lenders) that extend credit for the purpose of buying

or carrying margin stock if the credit is secured directly or

indirectly by margin stock."      12 C.F.R. § 221.1(b)(1).          "Margin

stock" includes "[a]ny equity security registered . . . on a

national securities exchange."      Id. § 221.2.     In pertinent part,

Regulation U prohibits banks from loaning more than a certain

percentage of the value of the security used to secure the loan,

see id. § 221.3, thereby typically ensuring that the purchaser has

some of his own funds invested, and reducing the extent to which

holders of securities are over-leveraged. See Capital Mgmt. Select

Fund Ltd. v. Bennett, 680 F.3d 214, 221-22 & n.9 (2d Cir. 2012)

("In general, margin restrictions [including Regulation U] attempt

to reduce the counterparty risk associated with margin financing by

limiting the types of securities that can be posted by an investor

as collateral for a margin loan and limiting the amounts that can

be borrowed against that collateral.").




     3
        Plaintiffs allege that defendants may have "misrepresented
these transactions purposely . . . to federal regulators" and that
"[t]he loans were represented and booked by [the Bank] under loan
purposes, as being legal and proper, and no impropriety . . . was
mentioned to plaintiffs."

                                  -4-
           The alleged violation of the margin requirements might

have benefited plaintiffs had the stock trading been successful.

Apparently, it was not.        After roughly $9 million in trades,

plaintiffs suffered a loss of nearly $3 million (including the cost

of borrowing).    Plaintiffs in effect allege that had the Bank not

loaned them the money, they would never have bought so many

securities, and thus not suffered as large a loss.

           Plaintiffs sued, ultimately pursuing two claims under

federal law.     First, they sought to maintain a private cause of

action under Regulation U.     Second, in apparent pursuit of treble

damages and attorneys' fees, they asserted a cause of action under

the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18

U.S.C. §§ 1961-1968.

           The district court dismissed the second amended complaint

as to two defendants for failure of service. It then dismissed the

remainder of the suit for failure to state a claim upon which

relief could be granted.      In making the latter ruling, the court

found, first, that there is no private right of action for a

violation of Regulation U.         Second, the court found that the

alleged   misconduct   was   not   actionable   under   RICO,   which,   as

amended, does not encompass private claims that would have been

"actionable as fraud in the purchase or sale of securities."

Private Securities Litigation Reform Act ("PSLRA"), Pub. L. No.

104–67, § 107, 109 Stat. 737 (1995), amending 18 U.S.C. § 1964(c).


                                    -5-
Plaintiffs appeal both the dismissal of their RICO claim and the

district court's determination that service was defective as to

some defendants.     Plaintiffs do not appeal the finding that

Regulation U provides no private right of action for its breach.

                            II. Analysis

A.        The district court correctly concluded that plaintiffs
          failed to state a claim for relief under RICO.

          Because the district court dismissed the case at the

pleading stage as inadequate to state a claim for relief, our

consideration on appeal of arguments plaintiffs have properly

preserved and presented is de novo. See Haag v. United States, 736

F.3d 66, 69 (1st Cir. 2013).

          "Fraud in the sale of securities" is listed as a RICO

predicate act.   18 U.S.C. § 1961(1).   For a time, this opportunity

to use a securities fraud claim as a predicate act for a RICO claim

allowed private litigants to use RICO to threaten treble damage

liability in securities litigation. See Bald Eagle Area Sch. Dist.

v. Keystone Fin., Inc., 189 F.3d 321, 327 (3d Cir. 1999).        In

response, Congress adopted the PSLRA, which generally bars private

plaintiffs from bringing RICO claims based on "any conduct that

would have been actionable as fraud in the purchase or sale of

securities."   18 U.S.C. § 1964(c); Bald Eagle Area Sch. Dist., 189

F.3d at 327.     Congress meant not only to "eliminate securities

fraud as a predicate offense in a civil RICO action, but also to

prevent a plaintiff from pleading other specified offenses, such as

                                -6-
mail or wire fraud, as predicate acts under civil RICO if such

offenses are based on conduct that would have been actionable as

securities fraud."     Bald Eagle Area Sch. Dist., 189 F.3d at 327

(alteration marks omitted) (internal quotation marks omitted).

           Applying the PSLRA's bar on RICO claims requires a sort

of reverse Rule 12(b)(6) inquiry:         we ask whether the conduct in

question would be "actionable as fraud in the purchase or sale of

securities," in which case a RICO count based on such fraud as a

predicate act is not actionable.        18 U.S.C. § 1964(c); see Fed. R.

Civ. P. 12(b)(6).     Actions for fraud in the purchase or sale of

securities often arise under section 10(b) of the Securities

Exchange Act of 1934 and U.S. Securities and Exchange Commission

("SEC") Rule 10b-5.    See 15 U.S.C. § 78j (prohibiting the use of

"manipulative or deceptive device[s]" that violate SEC rules "in

connection with the purchase or sale of any security"); 17 C.F.R.

§   240.10b-5   (prohibiting,   inter    alia,   fraudulent   schemes   and

misleading omissions of material fact "in connection with the

purchase or sale of any security"); see also Stoneridge Inv.

Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 157 (2008)

(noting the availability of an implied private right of action for

10b-5 violations). A typical 10b-5 securities fraud claim requires

proof of: "'(1) a material misrepresentation or omission; (2)

scienter, or a wrongful state of mind; (3) a connection with the

purchase or sale of a security; (4) reliance; (5) economic loss;


                                  -7-
and (6) loss causation.'"         Hill v. Gozani, 638 F.3d 40, 55 (1st

Cir. 2011) (quoting Dura Pharm., Inc. v. Broudo, 544 U.S. 336,

341-42 (2005)).

              In   contending   that   the   "bank    fraud"   they    claim   to

describe in their complaint was not actionable under Rule 10b-5,

plaintiffs make only one argument:             that the fraud was not in

"connection with the purchase or sale of a security."                  We shall

limit   our    consideration    accordingly.         See   Henderson    ex   rel.

Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011) ("[C]ourts are

generally limited to addressing the claims and arguments advanced

by the parties.").         As for why such a connection is lacking,

plaintiffs provide little insight. They seem to draw a distinction

between obtaining the loans and using the loaned funds to purchase

securities.        As the plaintiffs put it, the bank loans "made

possible the subsequent transactions," and "[w]ithout these loans

at extremely low rates these transactions would not have come

about."   Thus, we surmise that the crux of their argument is that

the alleged fraud arose "in connection with" the issuance of the

loans, and not "in connection with" the purchase of securities made

possible through the loan proceeds.          For the following reasons, we

reject this argument.

              First, the complaint itself, as ultimately amended, draws

a tight connection between the alleged fraud and the purchase of

securities.        The stated facts commence with an allegation that


                                       -8-
"Defendants caused $5,000,000.00 worth of securities to be traded

in the name of the Plaintiffs."             Plaintiffs explain that each

purchase was "initially funded entirely on credit." The fraudulent

scheme   itself    is   described   thus:     "Defendants   engaged   in   a

continuous and ongoing scheme to grant loans for the purchase of

securities to various clients, without complying with Regulation U

margin requirements . . . ."              Plaintiffs further depict all

defendants at the bank, its parent company, and its broker-dealer

subsidiary as jointly engaged in a single scheme, pursuant to which

the bank "loans were extended exclusively for the purchase of

securities at Santander Securities . . . ."             Furthermore, the

damages sought equaled the change in the value of the purchased

securities, plus margin interest and minus any interest earned.

And the undisclosed material fact at the heart of the alleged fraud

was the existence of Regulation U, applicable precisely because the

purpose of the loans was to buy securities.

           Second, the case law interpreting and applying the "in

connection with" requirement of Rule 10b-5 and related statutes

(referred to sometimes as the "transactional nexus" requirement)

offers no basis for finding such a tightly alleged connection to be

inadequate.       As a remedial statute, the Exchange Act and its

transactional nexus are to be interpreted "flexibly," although not

"so broadly as to convert every common-law fraud that happens to

involve securities into a violation of § 10(b)."        SEC v. Zandford,


                                    -9-
535 U.S. 813, 819-20 (2002) (internal quotation marks omitted).

Accordingly, in Zandford, the Court found a sufficient nexus

between deceit and a securities transaction where the defendant

wrote himself a check from his client's discretionary account,

knowing that securities would be sold to cover the draft.      Id. at

820-21.     Here, the defendants   loaned money for the purpose of

purchasing securities, all or most of which, it appears, were to be

held in a pledge collateral account securing the loan.

             In cases with materially similar facts to ours, two

other circuits have allowed causes of action under Rule 10b-5 to

proceed.     At least at the motion to dismiss phase, the Third

Circuit found the existence of a sufficient nexus between a failure

to disclose the interest terms of margin trading accounts and the

subsequent purchase of securities in the accounts.       Angelastro v.

Prudential-Bache Sec., Inc., 764 F.2d 939, 943-45 (3d Cir. 1985).4

Earlier, the Ninth Circuit concluded that misleading statements

about stock reports and the risks of buying on margin in a

declining market, as part of "a scheme to induce [the plaintiff] to

borrow     money   from   [the   defendant   and]   to     engage   in


     4
        Acknowledging the concern that allowing the action might
logically lead to liability for "other lending institutions which
made credit available for use in stock market transactions," id. at
945, the court opted for a case-by-case approach, and noted that
not "every bank loan for the purpose of purchasing securities is
necessarily within the purview of section 10(b). We decide only
the issue certified to us by the district court." Id. We follow
that wise example here, where, as we explain, the connection
involves more than the purpose of the loan.

                                 -10-
commission-producing securities purchases through [the defendant]"

also satisfied the transactional nexus.      Arrington v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 651 F.2d 615, 618-19 (9th Cir.

1981).

           In the context of a more traditional 10b-5 case dealing

with a false or misleading stock tip, the Fourth Circuit identified

four (non-exhaustive) factors relevant to whether a particular case

satisfies the transactional nexus:

     (1) whether a securities sale was necessary to the
     completion of the fraudulent scheme; (2) whether the
     parties' relationship was such that it would necessarily
     involve trading in securities; (3) whether the defendant
     intended to induce a securities transaction; and (4)
     whether material misrepresentations were disseminated to
     the public in a medium upon which a reasonable investor
     would rely.

SEC v. Pirate Investor LLC, 580 F.3d 233, 244 (4th Cir. 2009)

(citations omitted) (quotation marks omitted).   As we see it, only

the first three factors are sensibly relevant to an assessment of

this case, and all three are satisfied by plaintiffs' complaint.

According to the complaint, the purpose of the scheme was both to

make loans and to sell securities; accordingly, selling securities

was a necessary component of the scheme and integral to the

relationship between the plaintiffs and the defendants.    And the

complaint specifically alleges that "[t]he scheme was designed to

produce interest," benefits, and commissions for the defendants,

including both the Bank and Santander Securities.



                               -11-
           The     Supreme       Court    has    also       construed      parallel    "in

connection with" language in the Securities Litigation Uniform

Standards Act (SLUSA), which was adopted to further the same goals

as, and correct an unintended consequence of, the PSLRA.                          Merrill

Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71 (2006).

In so doing, the Court explained that Rule 10b-5's "in connection

with"   requirement        is     satisfied        where         "the    fraud    alleged

'coincide[s]'      with    a     securities       transaction--whether            by   the

plaintiff or by someone else."                 Id. at 85.         Just this term, the

Court   reaffirmed        Dabit    but        clarified      that       "[a]   fraudulent

misrepresentation or omission is not made 'in connection with'" the

purchase or sale of the securities covered by the SLUSA "unless it

is material to a decision by one or more individuals (other than

the   fraudster)    to     buy    or     to    sell    a    'covered      security.'".

Chadbourne & Parke LLP v. Troice, 134 S. Ct. 1058, 1066 (2014).

           The     fraud    as    alleged       here       was   material      to-–indeed

generated–-the purchase of securities covered by the Exchange Act

and Rule 10b-5.          There has been no dispute as to whether the

plaintiffs actually bought securities covered by the Exchange Act

(in fact, they specifically allege that Regulation U governed the

transactions). And, although plaintiffs endeavored to plead around

how central securities are to the alleged fraudulent scheme, their

pleading makes clear their theory that, but for the alleged

misrepresentations and omissions, the plaintiffs would have bought


                                          -12-
fewer, if any, securities.              (Hence their harm was driven at least

in part by the fall in the value of the securities.)                   As such, the

alleged misrepresentations and omissions were necessarily material

to the plaintiffs' decision to purchase securities, and so the

misrepresentations and omissions were "in connection with" those

securities transactions.

                We also note that this is not a case where the proceeds

of    an   independent        fraud   simply     happened    to   be   invested     in

securities, or where plaintiffs obtained the money they later

invested in a fraudulent scheme by selling securities.                             Cf.

Zandford, 535 U.S. at 820; Troice, 134 S. Ct. at 1071-72.                     Nor do

plaintiffs allege a scheme in which securities played only an

incidental or "happenstance" role.               Rezner v. Bayerische Hypo-Und

Vereinsbank AG, 630 F.3d 866, 871-72 (9th Cir. 2010) (finding no

PSLRA preemption where plaintiff pledged an interest in his bond-

holding account as substitute collateral in a loan scheme to

produce tax losses, as "the securities were merely a happenstance

cog   in       the   scheme.");   see    also    Troice,    134   S.   Ct.   at    1068

(distinguishing         the    Supreme    Court's    construction      of    the   "in

connection with" requirement from an interpretation that would

cover      a    borrower   who    misrepresented     his     creditworthiness       by

claiming that he held or would buy securities, or that would reach

a mortgage broker who misrepresented a loan's interest rate and

then sold the mortgage to a bank that securitized it); Ouwinga v.


                                          -13-
Benistar 419 Plan Servs., Inc., 694 F.3d 783, 791 (6th Cir. 2012)

(concluding that the PSLRA did not preempt a claim relating to an

abusive tax shelter, structured as a benefit plan that purchased

variable life insurance policies (securities), because "the fraud

and   the   securities   transactions    were   essentially   independent

events.").5

            In sum, if the defendants fraudulently misrepresented or

failed to disclose the Regulation U margin lending restrictions as

part of a scheme to induce plaintiffs to purchase more securities

than they otherwise would have, such fraud would have been "in

connection with" the purchase or sale of securities within the

meaning of Rule 10b-5. Accordingly, the district court was correct

to reject what is plaintiffs' sole argument on appeal for evading

the PSLRA bar in this action.




      5
          We have also considered Anatian v. Coutts Bank
(Switzerland) Ltd., 193 F.3d 85, 87-88 (2d Cir. 1999), which holds
that claimed fraud relating to a series of loans was too far
removed from any securities transactions to support a Rule 10b-5
claim. So far as we can tell, it is at least questionable whether
the Anatian complaint would have satisfied the second and third
Pirate Investor factors (namely, whether the parties' relationship
would necessarily involve, or the defendants meant to induce,
securities transactions). See Anatian v. Coutts Bank, Switzerland,
Ltd., 97 CIV. 9280 (JSR), 1998 WL 526440, at *1-2 (S.D.N.Y. Aug.
21, 1998) aff'd 193 F.3d 85 (2d Cir. 1999). In any event, Anatian
does not apply here, where the nexus to a securities sale is both
more direct and more central to the scheme.

                                  -14-
B.               The district court did not abuse its discretion in
                 dismissing the complaint as to two defendants for failure
                 of service.

                 We   review   for    abuse     of   discretion   a   dismissal   for

insufficient service of process.                 Crispin-Taveras v. Municipality

of Carolina, 647 F.3d 1, 6 (1st Cir. 2011).6

                 Under Federal Rule of Civil Procedure 4, absent contrary

federal law, one way that a plaintiff may serve a defendant is 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), (e)(1). See also Senior Loiza Corp. v. Vento Dev. Corp., 760

F.2d 20, 23 (1st Cir. 1985) (applying the prior version of the rule

to Puerto Rico).

                 Puerto Rico amended its Rules of Civil Procedure in 2009,

and the new rules have not yet been officially translated.

Calderón Serra v. Banco Santander P.R., No. 3:10-cv-1906-GAG, 2012

WL 3067609, at *3 n.1 (D.P.R. July 30, 2012) (citing P.R. Law Ann.

tit.       32,   app.    V,    R.    4.6).7      According   to   the   defendants'


       6
       Somewhat surprisingly, in view of the potentially different
preclusive effects of dismissals under Rules 12(b)(6) and 12(b)(5),
defendants have not volunteered to waive their lack of service
defense in the event that we affirm the RICO dismissal, nor do
plaintiffs waive their appeal of the Rule 12(b)(5) dismissal in the
event of such an affirmance. We therefore reach this issue, which
was the basis for the district court's dismissal as to defendants
Calvo and Moreno.
       7
        However, as the district court observed, the new Rule 4.6
largely mirrors the former Rule 4.5. Id.

                                              -15-
translation,   which   plaintiffs   do    not   appear   to   materially

challenge, the current rule provides:

     (a) The court shall issue an order providing for a
     summons by publication when the person to be served is
     outside of Puerto Rico or . . . could not be located even
     after pertinent efforts have been made . . . and it is
     proved to the satisfaction of the court through an
     affidavit stating the efforts made . . . . The order
     shall provide that the summons shall be published only
     once in a newspaper of general circulation in Puerto
     Rico. The order shall also provide that, within the ten
     (10) days following the publication of the summons, the
     defendant shall be sent a copy of the summons and of the
     complaint filed . . . to his/her last known address,
     unless a sworn statement is made justifying that in spite
     of the reasonable steps taken, which shall be stated, it
     has been impossible to find any address of the defendant,
     in which case the court will excuse compliance of this
     provision.

          Plaintiffs   sought   service   by    publication   for   three

defendants: José Álvarez, Juan Moreno Blanco ("Moreno"), and Héctor

Calvo.   To show their efforts at personal service,8 plaintiffs

offered an affidavit from private investigator Andrés Amador.

Regarding Moreno and Calvo, Amador averred that his efforts turned

up a last known address but little current information beyond

suggestions that each had left Puerto Rico.          He reported that

Álvarez's name was too common to produce workable leads, and

records checks had proved unavailing.      The district court granted

the motion.




     8
         Plaintiffs' initial motion was denied for lack of an
affidavit, and so we focus here on their second motion for service
by publication, which was granted.

                                -16-
          No one disputes that each summons was properly published.

Plaintiffs, however, failed to mail the defendants a copy of the

summons and complaint post-publication.         Accordingly, the three

defendants moved to dismiss the complaint for insufficient service

of process.    See Fed. R. Civ. P. 12(b)(5).      The court granted the

motion as to Moreno and Calvo, noting that Amador’s affidavit gave

a last known address for each, and so process should have been

mailed there. Calderón Serra, 2012 WL 3067609, at *4-5. The court

denied the motion as to Álvarez, however, concluding that although

there was no post-publication demonstration that it was impossible

to find his last known address, the original Amador affidavit

sufficed for that purpose.    Id.9

          On    appeal,   plaintiffs    claim   that   because   Amador's

affidavit showed that there was no known current address for any of

the three defendants, no mailing was necessary.            This view is

contrary to the plain language of the Rule, which requires mailing

even where there is no current address, so long as the plaintiff

has a "last known address."      Indeed, were a current Puerto Rico

address known, service by publication would likely have been

unavailable.    We therefore agree with the district court that

plaintiffs should have mailed the summons and complaint to Moreno

and Calvo's last known addresses.



     9
        Later, the district court dismissed the action sua sponte
as to Álvarez when it dismissed the rest of the case. Id. at *6.
                                 -17-
           The Puerto Rico cases cited in plaintiffs' Rule 28(j)

letter do not compel the contrary result.             See Fed. R. App. P.

28(j).    Quoting Banco Popular v. S.L.G. Negron, 164 D.P.R. 855

(P.R. June 2, 2005) (trans.), plaintiffs suggest that the district

court should have ordered re-service, not dismissal.             Cf. id. at

874. However, their opening brief on appeal argued only that

plaintiffs complied with Rule 4.6, not that the sanction for

failure was too harsh.10 They have thus forfeited the latter claim.

See Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004).              Moreover,

in Banco Popular, where the defendant's investigator found a

relative of the plaintiffs at their last known address, the Supreme

Court of Puerto Rico held that mailing the wrong version of a

summons after publication was inadequate service.           Banco Popular,

164 D.P.R. at 861, 874.      Failure to mail anything is at least as

grave as mailing the wrong thing.          Thus, on the issue of whether

service   here   was   adequate,   Banco    Popular   is   of   no    help   to

plaintiffs.

              Plaintiffs also offer a Puerto Rico Court of Appeals

opinion affirming a decision to waive the post-publication mailing

requirement for lack of a known "effective" address for the


     10
         Plaintiffs' brief asserts that the "denial of excusing
Appellants from their compliance with Rule 4.6 is clearly
arbitrary." In context, however, this appears to be an objection
to the finding that plaintiffs did not satisfy the Rule. If it was
intended to convey anything else, it is so cryptic as to waive the
point. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

                                   -18-
defendants, such that there was no "reasonable possibility to

inform the respondent of the claim filed against him."   Maldonado

Pena v. Bear Guerrero, FAC2008-3621(403), 2010 WL 4394296 (TCA), at

*3-4 (P.R. Cir. July 8, 2010) (trans.) (internal quotation marks

omitted). This case is persuasive authority as to Puerto Rico law,

see CPC Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962

F.2d 77, 91 (1st Cir. 1992), but distinguishable.        Unlike in

Maldonado, the district court here did not excuse the plaintiffs

from the mailing requirement ex ante--nor, it seems, did plaintiffs

ask it to.    While it perhaps would not have been an abuse of

discretion for the district court to grant such a request had

plaintiffs made it (a question we need not decide), we see no error

in the district court's refusal to sanction plaintiffs' decision to

presume that compliance with the clear language of the rule would

be excused.   As such, we affirm the district court's dismissal of

the complaint as to Moreno and Calvo for failure of service.

                         III. Conclusion

          For the foregoing reasons, the judgment of the district

court is affirmed.




                               -19-
