Gonzalez-Marcano v. US Airways Group Inc., PICS Case No. 14-0260 (E.D. Pa. Jan. 31, 2014) Surrick. J. (17 pages).

U.S. DISTRICT COURT - EASTERN

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CIVIL PROCEDURE

Jurisdiction And Service of Process • Relation Back •Amended Complaint • Fees And Costs

Gonzalez-Marcano v. US Airways Group Inc., PICS Case No. 14-0260 (E.D. Pa. Jan. 31, 2014) Surrick. J. (17 pages).

Gonzalez-Marcano alleged that she suffered an ankle injury during a flight from San Juan to Philadelphia. US Airways Group contended that Gonzalez-Marcano failed to serve it within the required period, that personal jurisdiction was lacking because US Airways Group does not do business in Puerto Rico and that the aircraft was not operated by US Airways Group but by its wholly owned subsidiary, US Airways Inc. Gonzalez-Marcano's motion to file an amended complaint was granted, her claims against US Airways Group were dismissed, her motion for fees and expenses was denied and US Airways Group's motion to dismiss was denied as moot.

On Dec. 8, 2011, Gonzalez-Marcano filed a diversity action against US Airways Group and John Doe defendants in Puerto Rico alleging that due to the airline's negligence her ankle was injured during a flight from Puerto Rico to Philadelphia. She attempted to serve US Airways Group on Jan. 23, 2012. On March 1, 2012 US Airways Group filed a motion to quash service of process. Plaintiff then mailed a waiver of service on March 26, 2012. U.S. Airways Group's motion to quash was granted on April 3, 2012 and plaintiff was granted 15 days from the issuance of a new summons to serve the defendant. A new summons was issued on April 4, 2012 but the defendant was not served until April 30,2012.

US Airways Group moved to dismiss, contending that service was untimely and that there was no personal jurisdiction. Plaintiff moved for leave to file an amended complaint with a proposed amended complaint attached substituting US Airways Inc. as the defendant. Plaintiff also sought reimbursement for fees incurred due to the defendant's refusal to waive service of process. The case was transferred to this court on June 25, 2013.

Federal courts sitting in diversity should look to the law of the state in which the district court sits and, if the state law affords a more forgiving principal of relation back than in the federal rules, state law should be used to save the claim. If applicable, Rule 15.4 may appear to be less restrictive than the applicable Federal Rule of Civil Procedure, but state law is inconsistent on this issue. Because of the inconsistencies, the court opted to view Puerto Rican law as more restrictive and looked to federal relation back rules. Federal Rule of Civil Procedure Rule 15(c) controls whether an amended complaint will relate back to the filing of the original complaint. The first and second requirements of Rule 15(c) were met here. The amended complaint was identical to the original except for the named defendants and the original defendant was the parent corporation of the additional defendant and both corporations shared the same corporate address in Arizona. The identity of interest principal allowed any notice that the parent corporation received to be imputed to the subsidiary. Here, the parent corporation had actual notice of the action by March 1, 2012 as evidenced by its motion to quash service.

Although plaintiff failed to meet all the technicalities of Rule 4(d)(1), US Airways Group did not claim any prejudice from the errors and it was evident that defendant did receive the waiver of service. Nevertheless, plaintiff's motion for fees was not granted because there was not adequate time to request waiver of service. The procedure for requesting waiver of service should not be used if the time for service will expire before the date on which the waiver must be returned. Here, the waiver was sent on March 26, 2011 requesting return in 30 days. However the court had ordered that service had to be completed by April 19, 2011.

Since plaintiff could not have properly used a waiver of service in this instance, the request was improper and defendant was not liable for plaintiff's fees and costs associated with serving defendant.