McCurdy v. American Board of Plastic Surgery

John A. McCurdy, Jr. (plaintiff) was a plastic surgeon practicing in Hawaii. On June 10, 1996, McCurdy filed a lawsuit in the United States District Court for the District of Hawaii against several professional associations, including the American Board of Plastic Surgery (the board) (defendant), alleging violations of federal antitrust laws. The board was served the complaint and summons on October 28, 140 days after McCurdy filed his complaint and 20 days after the 120-day period for service provided by Federal Rule of Civil Procedure (FRCP) 4(m). The board moved to dismiss McCurdy’s complaint, arguing that venue was improper and that Hawaii lacked personal jurisdiction over it. The board did not assert that service of process was untimely. The district court held that venue was improper and that it lacked jurisdiction over the board but transferred the case to Pennsylvania in the interest of justice. McCurdy attempted to serve the board in Pennsylvania, but his service was ineffective. The board filed a motion to dismiss in the Pennsylvania district court, arguing that service of process was untimely under FRCP 4(m). McCurdy opposed the motion, claiming that the board waived its objection for timeliness by failing to raise the issue in its first motion to dismiss. McCurdy cited Federal FRCP 12(g), which provided that a party waives all defenses or objections available under FRCP 12 if it does not raise the defenses or objections in its first motion to dismiss, and FRCP 12(h), which explained that a defendant waives his defense against a complaint for insufficient service of process if the defense is not raised in the defendants’ motion to dismiss. The district court granted the board’s motion, holding that the service-of-process requirement imposed by FRCP 4(m) was mandatory and not waivable. McCurdy appealed.