In re Malm v. VillegasAnnotate this Case
Lillian Malm filed suit against Marion Villegas by filing a complaint with the district court in 2005.The complaint alleged that Villegas caused Malm to suffer personal injuries in an automobile accident in 2002 (two years and eleven months earlier). It was undisputed that the complaint was filed approximately one month before expiration of the applicable three-year statute of limitations. In September 2006, having failed to find and personally serve Villegas, Malm moved for permission to establish quasi in rem jurisdiction by attaching Villegas's insurance policy and accomplishing service through publication. Although the court granted her motion and she demonstrated service by publication, in response to a motion to dismiss for lack of personal jurisdiction by Villegas's insurer, the court ultimately found quasi in rem jurisdiction to be an improper means of acquiring jurisdiction over Villegas's property. Nonetheless, the court denied the motion to dismiss, finding that additional time was warranted to allow Malm to attempt personal service. In September 2007, Malm filed a status report with the court, noting that she had been unable to locate and personally serve Villegas and requesting that the court take no further action at that time. No activity of record occurred for the next five years, but on June 27, 2013, Malm moved to reopen, alleging that "[i]n early 2013 investigators retained by Plaintiff's counsel got a 'lead' that Defendant Villegas was living in Germany," and as a result, Villegas was served in Germany "[i]n accordance with the Hague Convention . . . on May 24, 2013." The district court granted the motion in August 2013. Once the case was reopened, Villegas moved to reconsider, arguing that Malm's failure to make reasonable efforts after the case was closed in 2007 or to serve her within a reasonable time amounted to failure to prosecute. Villegas appealed the district court granting of Malm's motion to reopen her personal injury lawsuit. The Supreme Court reversed, finding that because service following commencement of the action by filing a complaint with the court was delayed for an unreasonable length of time, the district court abused its discretion in declining to dismiss the lawsuit for failure to prosecute.