PeterCam S.A./N.V. v. Vivendi, S.A. et al, No. 1:2008cv02056 - Document 7 (S.D.N.Y. 2009)

Court Description: MEMORANDUM AND OPINION #97239: Accordingly, Hannezo's motion is GRANTED and the above captioned actions are dismissed without prejudice save for the stayed actions. The stayed plaintiffs' motion to lift the stay is GRANTED, but only for the purposes of serving Hannezo-for all other purposes the actions remain stayed. However, in light of the adjournment of the trial date to September 29, 2009, any party may move to lift the stay on the grounds that such a step would be efficient. The stayed plaintiffs must serve Hannezo within 60 days of the date of this order or their actions will be dismissed. (Signed by Judge Richard J. Holwell on 3/16/2009) (jfe)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------x IN RE VIVENDI UNIVERSAL, S.A. SECURITIES LITIGATION This Document Relates To: 07 Civ. 7370 07 Civ. 7776 07 Civ. 7779 07 Civ. 7803 07 Civ. 8156 07 Civ. 8830 07 Civ. 10578 07 Civ. 10995 07 Civ. 11483 07 Civ. 11485 08 Civ. 0024 08 Civ. 0117 08 Civ. 1111 08 Civ. 1973 08 Civ. 1975 08 Civ. 1983 08 Civ. 1985 08 Civ. 2166 08 Civ. 2057 07 Civ. 7775 07 Civ. 7778 07 Civ. 7863 07 Civ. 8208 07 Civ. 9229 07 Civ. 9593 07 Civ. 10954 07 Civ. 11092 07 Civ. 11305 07 Civ. 11484 07 Civ. 11628 08 Civ. 0116 08 Civ. 0418 08 Civ. 0950 08 Civ. 1938 08 Civ. 1974 08 Civ. 2214 08 Civ. 2056 08 Civ. 2058 02 Civ. 5571 (RJH) (HBP) MEMORANDUM OPINION AND ORDER ---------------------------------x Defendant Guillaume Hannezo moves under Federal Rules of Civil Procedure 12(b)(5) for dismissal of the above-captioned actions for failure to serve him with a complaint. For the reasons stated below, the Court grants Hannezo s motion without prejudice for all the abovecaptioned actions except for actions 08 Civ. 2166, 08 Civ. 2057, 08 Civ. 2214, 08 Civ. 2056, and 08 Civ. 2058. For those actions, the Court directs plaintiffs to serve Hannezo within 60 days. Following their exclusion from the class, certain purchasers of Vivendi stock or their representatives (the Individual Plaintiffs ) brought the above-captioned actions against Vivendi, Hannezo, and Jean-Marie Messier on theories of recovery very similar to those of the class. The Individual Plaintiffs brought the above-captioned actions at various times. The actions were eventually consolidated with the class by the Court s order signed January 7, 2008. This same order also provided that: (1) Absent agreement among the parties or further application to the Court, Individual actions filed after February 28, 2008 shall be stayed pending trial of the consolidated actions ; and (2) If the Individual Plaintiffs are unable to effect service pursuant to The Hague Convention by June 1, 2008 [on defendant Hannezo] they may apply to the Court for permission to make alternate service. Five complaints were filed after February 28, 2008 and were automatically stayed: 08 Civ. 2166, 08 Civ. 2057, 08 Civ. 2214, 08 Civ. 2056, and 08 Civ. 2058. The parties do not dispute that as of June 1, 2008, only one complaint had been properly served on Hannezo, namely the complaint in Capitalia Asset Management SGR, S.p.A. v. Vivendi Universal, S.A., 07 Civ. 5742. No application was ever made to this Court for alternate service. Individual Plaintiffs admit that the earliest any attempt was made to serve Hannezo in accordance with the Hague Convention was May 29, 2008. On June 26, 2008, plaintiffs finally succeeded in serving 20 complaints on Hannezo, and on July 11, 2008 they succeeded in serving an additional seven. To the Court s knowledge, no additional complaints have been served. Rule 4(m) of the Federal Rules of Civil Procedure states that: If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). The Court of Appeals has held that the exception set forth in the last sentence of the rule is not applicable when service is not even attempted on a defendant in a foreign country. USHA 2 (India), Ltd v. Honeywell Int l, Inc., 421 F.3d 129, 133-34 (2d Cir. 2005); Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (S.D.N.Y. 1985). As an initial matter, the Court finds that plaintiffs did not attempt service within the 120 day window and therefore that the last sentence of Rule 4(m) does not apply. The only conceivable attempt to serve Hannezo prior to the Court s June 1, 2008 deadline was in action 07 Civ. 7370, in which the 120 day limit had long since expired. Furthermore, the Court finds that plaintiffs have not demonstrated good cause and therefore that the Court is not required to extend plaintiffs time to serve. The only real obstacle to service appears to have been the timeconsuming task of translating the complaints into French. However, as is plain from plaintiffs own submissions, plaintiffs knew as early as February 6, 2008 that they might not be able to successfully serve Hannezo by June 1, 2008, and yet they still did not apply to the Court for additional time. Given the absence of good cause and the failure to even attempt service within the 120 day period, the Court concludes that dismissal without prejudice is the appropriate action for the above-captioned complaints save those that were automatically stayed. While the Court may order that service be made within a specified time even when good cause is not shown, Individual Plaintiffs have, in essence, already had their chance. Although the Court s January 7, 2008 order did not specifically extend the time to serve Hannezo, it was at least reasonable to assume such an extension for plaintiffs whose 120 day period expired prior to June 1, 2008. It was not reasonable, however, to assume that, in such a complex litigation, plaintiffs could indefinitely postpone service on Hannezo given the clear assertion of his rights and the Court s clear directive to apply for more time if it was needed. Furthermore, it strains credulity to hear 3

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