Free Order on Motion for Miscellaneous Relief - District Court of Delaware - Delaware

Case 1:05-cv-00042-***-MPT Document 21 Filed 03/22/2006 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CAPITAL INVESTMENT AGENCY )
l-lMITED, )
I
Plaintiff, )
) Civil Action No. 05-042-KAJ
v. )
I
INVESTMENT TRADING MANAGEMENT, )
INC., et al., )
I
Defendants. )
MEMORANDUM ORDER
Before me is a "motion to clarify or extend time for personal service of process
on defendant Maurice Blondin" ("Biondin"), filed by the plaintiff, Capital Investment
Agency Limited ("Capita|") (Docket Item ["D.I."] 12; the "Motion".) Capital seeks
clarification that Federal Rule of Civil Procedure 4(m), which requires service of process
within 120 days, does not apply to service on individuals in a foreign country. (D.|. 12 at
1) 17.) In the alternative, Capital seeks an order extending the 120 days in order to
personally serve Blondin. (ld. at fl 19.) Capital believes Blondin to be a resident of
Belgium. (ld. at 1I 16.) Capita|'s numerous attempts to locate Blondin in order to
personally serve him with process, which have included retaining a private investigator,
have proven unsuccessful. (ld. atii 13.)
Rule 4(m) specifies a 120-day time limit for service of process. In its entirety,
Rule 4(m) reads:
Time Limit for Service. lf service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the complaint, the court,
upon motion or on its own initiative after notice to the plaintiff, shall dismiss the
action without prejudice as to that defendant or direct that service be effected

Case 1 :O5—cv-00042-***-MPT Document 21 Filed 03/22/2006 Page 2 of 2
within a specified time; provided that if the plaintiff shows good cause for the
failure, the court shall extend the time for service for an appropriate period. This
subdivision does not apply to service in a foreign country pursuant to subdivision
(f)0r(Il(1)-"
Given the language ofthe Rule, I may well be inclined to agree with Capital that
it is not confined by the 120-day time limit, since it is endeavoring to serve someone in
a foreign country. But I have not considered the question in any detail, nor may I.
Federal courts are forbidden to render advisory opinions. See Donovan ex rel. n
Donovan v. Punxsutawney Area School Bd., 336 F.3d 211, 217 n.3 (3d Cir. 2003)
(rendering an advisory opinion "contraven[es] the Constitution's limitation of federal
jurisdiction to actual cases and controversies"). I must therefore decline to provide the
requested "clarification." Since the need for an extension is likewise dependent on a
determination of whether Capital has thus far proceeded correctly, I also decline to
address that alternative aspect ofthe Motion, and I will simply deny the Motion, without
prejudice to any position taken by Capital on the questions it has raised. Ifthe time
comes when service of process on Blondin is challenged, a properly framed
controversy will allow for a properly considered determination ofthe questions.
Accordingly, IT IS HEREBY ORDERED that CapitaI's Motion to Clarify or Extend
Time for Personal Service of Process on Defendant, Maurice Blondin (D.I. 12.) is
DENIED. I
NIT D sm ES DI DGE
March 22, 2006
Wilmington, Delaware
‘RuIe 4(f) pertains to service upon individuals in a foreign country and Rule (j)(1)
pertains to service upon a foreign state.
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