Court filing
MOTION for extension of time until August 22, 2023… — Oto Analytics, LLC v. Benworth Capital Partners PR LLC (Dkt. 67)
No. 3:23-cv-01034-GMM · Doc. 67 · Docket on CourtListener
Full text
Case 3:23-cv-01034-GMM Document 67 Filed 06/12/23 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
OTO ANALYTICS, LLC, §
§
Plaintiff, §
§
v. § Civil Action No. 23-01034
§
BENWORTH CAPITAL PARTNERS PR §
LLC, BENWORTH CAPITAL PARTNERS §
LLC, BERNARDO NAVARRO and §
CLAUDIA NAVARRO, §
§
Defendants.
MOTION FOR EXTENSION OF TIME TO SERVE DEFENDANTS BERNARDO
NAVARRO AND CLAUDIA NAVARRO AND LEAVE TO SERVE BY PUBLICATION
Pursuant to Federal Rules of Civil Procedure 4(e)(1) and 4(m), Plaintiff Oto Analytics,
LLC (f/k/a Oto Analytics, Inc., d/b/a Womply, “Womply”), through the undersigned counsel,
respectfully requests that this Court (i) extend Womply’s time to serve Defendant Bernardo
Navarro (“Mr. Navarro”) and Defendant Claudia Navarro (“Ms. Navarro;” together with
Mr. Navarro, the “Navarros”) by 120 days, or 30 days after this Court rules on this Motion
(whichever is later); and (ii) grant Womply leave to serve the Navarros by publication.
As Womply explained in detail in its Opposition to the Navarros’ Motion to Quash Service
of Process and accompanying exhibits (“Opp.”; ECF No. 54), Womply has served or attempted to
serve the Navarros eight times at three different addresses, including at (i) the offices of Benworth
Capital Partners PR LLC, which is wholly owned by the Navarros, where service was accepted by
the Office Administrator;1 (ii) the Puerto Rico home address listed on the Navarros’ drivers’
1
Womply contends that it effected service upon the Navarros by serving the Office Administrator,
who represented that she had the authority to accept service on their behalf. (Opp. at 3.)
Nevertheless, Womply brings this motion in the event that the Court determines that the Navarros
have not yet been served.
Case 3:23-cv-01034-GMM Document 67 Filed 06/12/23 Page 2 of 6
licenses and on their bank account application; and (iii) the Navarros’ last known home address in
Florida. (Opp. at 1–5 & Exs. 2, 6–7; ECF Nos. 22–24.) There can be no serious dispute that the
Navarros have actual notice of this action—they both submitted declarations (ECF Nos. 37-1, 37-
2) and their respective attorneys have filed multiple briefs (ECF Nos. 25, 26, 37, 59, 64)—which
strongly supports Womply’s argument that the Navarros have been validly served (see Opp. at 6–
7). Womply has also requested that, in the alternative, this Court grant Womply leave to serve the
Navarros by publication. (Id. at 7–8.)
Out of an abundance of caution, and to avoid any procedural ambiguities, Womply now
formally moves to extend the time to serve the Navarros by 120 days, or 30 days after this Court
rules on this Motion (whichever is later), and for leave to serve the Navarros by publication. Rule
4(m) requires service “within 90 days after the complaint is filed” and provides that “if the plaintiff
shows good cause for the failure [to serve defendant within 90 days], the court must extend the
time for service for an appropriate period” (emphasis added). Good cause exists where “the
plaintiff has acted diligently in trying to effect service” or “the defendant has evaded service of the
process or engaged in misleading conduct.” Moreno-Perez v. Toledo-Davila, 266 F.R.D. 46, 49–
50 (D.P.R. 2010) (cleaned up; collecting cases); see also 4B Charles S. Wright, Arthur R. Miller,
et al., Federal Practice and Procedure § 1137 (4th ed. 2023) (“Wright & Miller”). “Even if there
is not good cause shown,” the court may “in its discretion decide[] to grant the plaintiff more time
to effect service.” Moreno-Perez, 266 F.R.D. at 49 (cleaned up); see also 4B Wright & Miller
§ 1137 & n.13 (“the overwhelming majority of federal courts and dicta from the Supreme Court
embrace the view” that “an extension of time is allowed without a showing of good cause”)
(collecting cases).
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Case 3:23-cv-01034-GMM Document 67 Filed 06/12/23 Page 3 of 6
Womply easily satisfies the good-cause requirement. The Navarros and their counsel
repeatedly refused to accept service, forcing Womply to engage process servers who served or
attempted to serve the Navarros eight times at three different addresses. (See Opp. at 1–6.) Courts
routinely extend the time to serve defendants, even after the 90-day deadline has passed, where, as
here, the plaintiff “made reasonable efforts to serve the summons within the time limit noted in
Rule 4(m).” Moreno-Perez, 266 F.R.D. at 50 (vacating dismissal for failure to serve within
applicable time period); see also, e.g., Valle-Vega v. Valle-Vega, 2021 WL 5750585, at * (D.P.R.
2021) (extending time to serve defendant after the “time to serve him, pursuant to Rule 4(m),
already lapsed,” because plaintiff “made good faith efforts to ascertain where to service”
defendant); 4B Wright & Miller § 1137 n.6 (collecting cases).
Under Rule 4(e)(1), an individual may be served by “following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the district court
is located where service is made.” Puerto Rico law provides that “[t]he court shall issue an order
providing for summons by publication” in a “newspaper of general circulation in Puerto Rico”
where “the person to be served . . . could not be located even after pertinent efforts have been
made” and the movant provides “an affidavit stating the efforts made.” Calderón Serra v. Banco
Santander P.R., 747 F.3d 1, 8 (1st Cir. 2014) (emphasis added) (quoting P.R. Law Ann. Tit. 32,
app. V, R. 4.6).2 Womply has submitted multiple declarations showing Womply’s extensive
efforts to serve the Navarros, including detailed declarations by multiple process servers based on
first-hand knowledge, an attorney declaration describing document and public records searches,
2
Puerto Rico law is considered “state law” for purposes of Rule 4(e)(1). See Calderón Serra, 747
F.3d at 8. Under the 2020 amendments to the Puerto Rico Civil Code, which have not yet been
translated, former Rule 4.6 was restyled as Rule 4.5 but was not substantively changed. P.R. Law
Ann. tit. 32, app. V, R. 4.5.
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Case 3:23-cv-01034-GMM Document 67 Filed 06/12/23 Page 4 of 6
and a lengthy declaration from Womply’s CEO setting forth the factual basis for Womply’s claims.
(Ex. 1 (ECF No. 23), Ex. 2 (ECF No. 24), Ex. 3 (ECF No. 54-1), Ex. 4 (ECF No. 54-3), Ex. 5
(ECF No. 54-7), Ex. 6 (ECF No. 54-8), Ex. 7 (ECF No. 54-12).) This is more than sufficient to
warrant service by publication. See, e.g., id. at 8–9 (affirming service by publication based on a
single affidavit showing “last known address”); see also Hasebrouck v. Great Lengths Int’l, 2008
WL 11502476, at *1 (D.P.R. Mar. 27, 2008) (“The Puerto Rico court authorized service by
publication . . . .”); Live Well Fin., Inc. v. Estate of Santana Martinez, 2020 WL 12188413, at *1
(D.P.R. Jan. 14, 2020) (granting plaintiff additional time “to serve process . . . by publication”);
Farb v. Perez-Riera, 293 F.R.D. 77, 79 (D.P.R. 2013) (“grant[ing] Plaintiff an additional term of
ten days to correctly serve Perez Riera through publication”).
Accordingly, Womply respectfully requests that this Court (i) extend Womply’s time to
serve the Navarros by 120 days, to August 22, 2023, or (if later) to 30 days after this Court rules
on this Motion; and (ii) grant Womply leave to serve the Navarros by publication.
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Case 3:23-cv-01034-GMM Document 67 Filed 06/12/23 Page 5 of 6
Dated: June 12, 2023 Respectfully submitted,
By: /s/ Alexander L. Cheney
Alexander L. Cheney (admitted pro hac vice)
Willkie Farr & Gallagher LLP
One Front Street
San Francisco, CA 94111
(415) 858-7400
acheney@willkie.com
By: /s/ Alejandro J. Cepeda Diaz
Alejandro J. Cepeda Diaz
USDC-PR 222110
McConnell Valdés LLC
270 Muñoz Rivera Ave.
Hato Rey PR 00918
Tel: (787) 250-5637
Email: ajc@mcvpr.com
Joshua S. Levy (admitted pro hac vice)
Willkie Farr & Gallagher LLP
1875 K Street, N.W.
Washington, D.C. 20006
(202) 303-1000
jlevy@willkie.com
Attorneys for Plaintiff Oto Analytics, LLC
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Case 3:23-cv-01034-GMM Document 67 Filed 06/12/23 Page 6 of 6
CERTIFICATE OF SERVICE
The undersigned certifies that on June 12, 2023, the foregoing document was filed with
the Clerk of the Court using CM/ECF, which sent notices to all parties receiving notifications
through the CM/ECF system.
Dated: June 12, 2023 By: /s/ Alexander L. Cheney
Attorney for Plaintiff Oto Analytics, LLC
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