The first question is whether the buyer properly served the seller with process and, if no
t, what remedy is appropriate. As explained below, the court should find that service was
improper. Although this enables the court to dismiss the case without prejudice, a better
course would be to allow the buyer a limited time in which to effect proper service. Accor
dingly, the court should deny the motion and allow the buyer additional time to serve the
seller properly.A. The Formalities of ServiceService of process is governed by Federal Rul
e of Civil Procedure 4. Under Rule 4, a plaintiff can ask a defendant to waive formal serv
ice of process. The plaintiff must send a formal, written waiver request to the defendant,
along with the complaint, two copies of a specified waiver form, and a prepaid means for
the defendant to return the form. The plaintiff must give the defendant at least 30 days t
o return the waiver form. If the defendant does not waive service, then the plaintiff must
serve the defendant by some other appropriate means. In that case, the defendant must pay
the costs of service, plus the expenses of any motion that the plaintiff must file to col
lect those expenses.Here, the buyer sent a proper waiver request to the seller. Because th
e seller did not respond, the buyer was required to serve the seller using some other appr
opriate method. The buyer attempted to do so by placing the summons and complaint on the p
orch of the seller’s house. This was not proper service. Although Rule 4 permits service a
t a person’s usual place of abode, the rule also requires that the summons and complaint b
e left with a person of suitable age and discretion who resides there. Simply leaving the
documents on the porch does not meet this requirement. True, Rule 4 does permit service in
accordance with the law of the forum state (here, State B) or the state where service is
made (here, also State B). However, the facts indicate that State B’s service law follows
Rule 4, which does not contemplate leaving the process documents on the porch of the defen
dant’s house. Therefore, service was insufficient here.The buyer may argue that service wa
s adequate because the seller found the summons and complaint on his porch, and thereby be
came aware of the suit. This argument will fail. The courts have repeatedly held that actu
al notice of the suit is not sufficient to overcome deficiencies in formal service. Accord
ingly, service here was improper.B. The Remedy for Insufficient ServiceRule 4 provides tha
t service must normally be made within 90 days after the complaint is filed. If not, the c
ourt has discretion to implement one of two remedies: it may dismiss the case without prej
udice, or it may order the plaintiff to effect service within a specific time. The rule do
es not specify the exact time to be allowed, which is therefore also within the court’s di
scretion.The 90-day period for service has elapsed in this case, so the court could dismis
s the case without prejudice if it wished. This is important, because dismissal without pr
ejudice would leave the buyer free to refile the case (absent some other bar, such as the
statute of limitations). If this case were dismissed, then, it seems likely that the buyer
would simply refile the suit, because the value of the claim, at $5,000,000, is substanti
al. Instead of burdening the parties with dismissal and refiling, it would seem more effic
ient to give the buyer some additional time to serve the seller properly. The court should
therefore deny the motion to dismiss, and give the buyer reasonable additional time to se
rve the seller properly.