
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1278                                    MARY OSBORNE,                                Plaintiff - Appellant,                                          v.                               SANDOZ NUTRITION CORP.,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                _____________________               Kevin M. Walkowski, with whom Matthew J. Ryan, Jr.,  Michael               __________________            ____________________   _______          K.  Callan and Doherty, Wallace, Pillsbury & Murphy, P.C. were on          __________     __________________________________________          brief for appellant.               Thomas  J. Scannell, with whom Bowditch & Dewey was on brief               ___________________            ________________          for appellee.                                 ____________________                                   October 6, 1995                                 ____________________                    Per   Curiam.      Plaintiff-Appellant,  Mary   Osborne                    Per   Curiam.                    ____________          ("Osborne"),  appeals  the  district  court's  dismissal  of  her          complaint  for insufficient service of process.   For the reasons          stated below, we affirm.                                      BACKGROUND                                      BACKGROUND                                      __________                    Osborne brought  a  personal  injury  suit  in  Hampden          County Superior  Court for  the Commonwealth of  Massachusetts on          August  30,  1994  against  defendant-appellee,  Sandoz Nutrition          Corporation   ("Sandoz").     Osborne  failed   to  comply   with          Massachusetts Rule of Civil Procedure 4(j), which required her to          effect service of her  complaint within 90 days from the  date of          filing  (i.e., on  or  before November  28,  1994), and  mandated          dismissal  unless she showed good cause for untimely service.  On          November  30,  1994,  Osborne  filed  with  the  state  court  an          Emergency  Motion to  Extend Tracking  Order to Allow  Service of          Process ("Emergency  Motion"), which defendant opposed.   Osborne          completed  service of process on Sandoz on December 29, 1994, one          month  after the  deadline and  with the  Emergency Motion  still          pending.   On  January  13, 1995,  the  action was  removed  upon          Sandoz'  motion, pursuant  to 28 U.S.C.    1332  and 28  U.S.C.            1441, to the  United States  District Court for  the District  of          Massachusetts.   On January  23, 1995,  Sandoz moved to  dismiss,          asserting   insufficient   service   of   process   pursuant   to          Massachusetts law.                    The  district court granted  Sandoz' motion to dismiss.          The district  court reasoned  that, under Federal  Rule of  Civil                                         -2-          Procedure  81(c),  Massachusetts  Rule of  Civil  Procedure  4(j)          applies relative  to the time  frame for effectuating  service of          process, and  that, under Massachusetts case  law, Osborne failed          to show  good cause  for failure  to  serve process  in a  timely          manner.  Final judgment was entered on March 6, 1995, and Osborne          filed this appeal on March 9, 1995.                    On  appeal,  Osborne contends  that  28  U.S.C.    1448          mandates  application of  Federal  Rule of  Civil Procedure  4(m)          (which  provides  Osborne with  120  days  to effect  service  of          process from the date of removal) and that, even if Massachusetts          Rule  of Civil  Procedure 4(j)  applies, Osborne  can demonstrate          good cause for the delay in service of process.                                      DISCUSSION                                      DISCUSSION                                      __________                    The district  court's decision  as to which  procedural          rule applies is a question of law subject to plenary review.  See                                                                        ___          New  Hampshire Ball Bearings v. Aetna Casualty and Surety Co., 43          ____________________________    _____________________________          F.3d  749, 752 (1st Cir. 1995);  LoVuolo v. Gunning, 925 F.2d 22,                                           _______    _______          25  (1st Cir.  1991).    We view  this  appeal as  involving  the          straightforward  application  of state  procedural  law regarding          service  of process  prior  to removal  to  federal court.    The          district court  correctly applied  state procedural law  prior to          removal because state law governs the service of process prior to          removal  to the  district court.   Fed.  R. Civ.  P. 81(c).   See                                                                        ___          Winkels v.  George A. Hormel &  Co., 874 F.2d 567,  570 (8th Cir.          _______     _______________________          1989); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168                 ________    ___________________________                                         -3-          (3d  Cir. 1976).  See also Garden  Homes, Inc. v. Mason, 238 F.2d                            ________ ___________________    _____          651, 653 (1st Cir. 1956).                    In this respect, we reject Osborne's contention that 28          U.S.C.    1448,  which governs  procedure only  after  removal to          federal  court, mandates  application  of Federal  Rule of  Civil          Procedure 4(m).   Osborne  asserts that  service  of process  was          "unperfected" or "defective"  within the meaning  of 28 U.S.C.             1448 as of  the date of removal because her  Emergency Motion was          still pending before the state court when the action was removed.          We reject Osborne's argument because the district court, pursuant          to the general rule that state law governs sufficiency of process          prior  to  removal and  should be  applied  by federal  courts in          determining whether there  were procedural deficiencies  prior to          removal,  applied the same test  that the state  court would have          applied in deciding the Emergency Motion; that is, whether, under          Massachusetts Rule  of Civil  Procedure 4(j) and  applicable case          law, Osborne demonstrated good cause for failure to serve process          in a timely manner.   Fed. R. Civ. P. 81(c); Winkels, 874 F.2d at                                                       _______          570.   Osborne had the same opportunity before the district court          to demonstrate  good cause  for failure  to timely  serve process          that she would  have had before the state court  had the case not          been removed to district court.                    Furthermore,   we  agree  with   the  district  court's          conclusion that  the doctrine enunciated in Hanna v. Plummer, 380                                                      _____    _______          U.S. 460  (1965), and the provisions  of 28 U.S.C.    1448 do not          apply.   Applying Section 1448 would  ignore Osborne's procedural                                         -4-          deficiency in  state court,  and effectively penalize  Sandoz for          exercising its removal right.  We decline to use Section 1448, as          the  district court  noted, to  "breathe jurisprudential  life in          federal  court to a case legally dead in state court."  Witherow,                                                                  ________          530 F.2d at 168.                    We  turn  to   the  district  court's   application  of          Massachusetts precedent (as opposed  to federal precedent) in its          determination of whether Osborne  demonstrated good cause for her          failure  to  timely  serve  process.      Contrary  to  Osborne's          contentions,  we  note that  once  the  district court  correctly          decided to apply  Massachusetts Rule of Civil  Procedure 4(j), it          correctly applied  Massachusetts precedent construing  good cause          under Massachusetts Rule of Civil Procedure 4(j).                    The district court's finding that Osborne failed, under          Massachusetts Rule  of Civil  Procedure 4(j) and  applicable case          law, to show good cause for her failure to make timely service is          reviewed for abuse of discretion.  Benjamin v. Grosnick, 999 F.2d                                             ________    ________          590,  591 (1st  Cir. 1993).  Based on  our  review of  the record          below, we  find no abuse of  discretion by the district  court in          its finding  that Osborne  failed to  demonstrate good  cause for          failure to timely serve  process.  See Hull v.  Attleboro Savings                                             ___ ____     _________________          Bank, 33 Mass.  App. Ct.  18, 26  (1992); Shuman  v. The  Stanley          ____                                      ______     ____________          Works, 30 Mass. App. Ct. 951 (1991).          _____                    In  sum, we  find that  the district court  applied the          correct  legal  standards and  did  not abuse  its  discretion in                                         -5-          dismissing   Osborne's  complaint  for  insufficient  service  of          process.  Affirmed.                    ________                                         -6-
